Aldinger v. Aldinger

Filed 01/23/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 5
Marcella D. Aldinger, Plaintiff
v.
James H. Aldinger, Defendant and Appellant
and
State of North Dakota, Statutory Real Party in Interest
and Appellee
No. 20190226
Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable Daniel J. Borgen, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
James Aldinger, self-represented, Lake Elmo, MN, defendant and appellant;
(on brief).
Sheila Keller, Bismarck, ND, statutory real party in interest and appellee; (on
brief).
Aldinger v. Aldinger
No. 20190226
Crothers, Justice.
[¶1] James Aldinger appeals from a second amended judgment modifying his
child support obligation for the child he has with Marcella Aldinger. We affirm.
I
[¶2] In October 2010 the amended judgment was entered, ordering James
Aldinger to pay $427 in child support for the child. On April 17, 2019, the State
moved to modify James Aldinger’s child support obligation, requesting an
increase to $748 per month. On April 26, 2019, James Aldinger answered, and
filed a second answer on May 1, 2019.
[¶3] On May 1, 2019, James Aldinger moved to dismiss the motion, arguing
his employment changed and the State disregarded the change. He also filed
various exhibits, including a copy of his current paystub. On May 13, 2019,
James Aldinger moved to dismiss the State as a statutory party. The State
responded to James Aldinger’s motion to dismiss and his motion to dismiss the
State as a party.
[¶4] On May 20, 2019, the State filed a supplemental brief in support of its
motion, providing child support calculations based on a gross annual income of
$51,626, which was requested by the district court and based on information
James Aldinger provided. The State also filed a proposed order and judgment.
[¶5] On May 22, 2019, the district court modified James Aldinger’s child
support obligation. The court found his gross annual income was $51,626 based
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on his current paystub, and the correct child support for that income is $701
per month. A second amended judgment was entered.
II
[¶6] James Aldinger argues the district court abused its discretion by failing
to dismiss the State’s motion to modify when it determined that different
income calculations were appropriate. He also argues the court did not have
jurisdiction to modify the child support obligation because he no longer lives in
North Dakota and the court erred as a matter of law by applying the North
Dakota child support guidelines.
[¶7] The district court had jurisdiction to modify the child support obligation.
See N.D.C.C. § 14-12.2-08(1) (stating a court retains continuing, exclusive
jurisdiction to modify its child support order if the order is the controlling order
and the child is a resident of this state at the time of the request for
modification). We summarily affirm under N.D.R.App.P. 35.1(a)(2), (4) and (7);
see also Rath v. Rath, 2017 ND 138, ¶ 28, 895 N.W.2d 315 (stating any
argument about how the child support guidelines should be amended would be
better made to the Legislature or the Department of Human Services).
III
[¶8] James Aldinger argues the district court erred by requesting new child
support calculations and a proposed order from the State. He also claims the
court erred by adopting the State’s proposed order and signing it within 36
hours, without allowing him an opportunity for rebuttal.
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[¶9] Rule 7.1(b)(1), N.D.R.Ct., states, “Preparation of proposed findings of fact
and conclusions of law under N.D.R.Civ.P. 52(a) may be assigned by the court
to one or more parties.” The district court did not err by directing the State to
prepare a proposed findings of fact and conclusions of law.
[¶10] However, the rule states any proposed findings must be served on all
parties for review and comment, and the other party may serve a written
response within 14 days of service. N.D.R.Ct. 7.1(b)(1). The State served its
proposed order on May 20, 2019, and the district court entered its order
adopting the proposed order on May 22, 2019. James Aldinger was not given
14 days to respond to the State’s proposed order.
[¶11] The harmless error standard in civil cases is set out in N.D.R.Civ.P. 61,
which provides:
“Unless justice requires otherwise, no error in admitting or
excluding evidence, or any other error by the court or a party, is
ground for granting a new trial, for setting aside a verdict, or for
vacating, modifying, or otherwise disturbing a judgment or order.
At every stage of the proceeding, the court must disregard all
errors and defects that do not affect any party’s substantial rights.”
The State filed its proposed order based on the evidence James Aldinger
presented. James Aldinger does not explain how the failure to give him an
opportunity to respond to the proposed order prejudiced him or affected his
substantial rights.
[¶12] No evidence in this record suggests the error affected James Aldinger’s
substantial rights. We conclude the error was harmless.
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IV
[¶13] The second amended judgment is affirmed.
[¶14] Daniel J. Crothers
Gerald W. VandeWalle
Lisa Fair McEvers
Jerod E. Tufte
Jon J. Jensen, C.J.
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