Toppenberg v. Toppenberg

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                  

Kristina M. Toppenberg,                                 Plaintiff and Appellant
      v.
Zach D. Toppenberg,                                    Defendant and Appellee
      and
The State of North Dakota,         Statutory Real Party in Interest and Appellee

                                 No. 20250017

Appeal from the District Court of Williams County, Northwest Judicial District,
the Honorable Benjamen J. Johnson, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by Jensen, Chief Justice.

Emily M. Ramage, Williston, ND, for plaintiff and appellant; submitted on brief.

Zach D. Toppenberg, Lake Havasu City, AZ, defendant and appellee; submitted
on brief.

Justin T. Breitwieser, Special Assistant Attorney General, Bismarck, ND, for
statutory real party in interest and appellee; submitted on brief.
                           Toppenberg v. Toppenberg
                                 No. 20250017

Jensen, Chief Justice.

[¶1] Kristina Toppenberg appeals from a district court’s order granting Zach
Toppenberg’s motion to reduce his child support obligation arguing the
modification itself was not appropriate. Kristina Toppenberg alternatively
argues the court erred in its calculation of the amended child support obligation.
We affirm in part, reverse in part, and remand.

                                         I

[¶2] In September 2021, Zach Toppenberg was ordered to pay child support in
the amount of $1,814 a month to Kristina Toppenberg to support the parties’ two
minor children. The child support calculation was based on a finding that Zach
Toppenberg’s annual income was $103,200. His employment and income
remained consistent from 2021 to 2023. In April 2023, Zach Toppenberg relocated
to Arizona to be nearer to his parents and currently works for a construction
company earning $21 per hour.

[¶3] In February 2024, Zach Toppenberg filed a motion to amend his child
support obligation. An evidentiary hearing was held in July 2024. Zach
Toppenberg provided the district court his 2023 tax return and his last three
months’ paystubs.

[¶4] In September 2024, the district court issued its findings of fact, conclusions
of law, and order of judgment. The court calculated Zach Toppenberg’s gross
annual income to be $43,680 by multiplying his hourly wage of $21 by 40 hours
a week, assuming he is paid throughout the full 52 weeks a year, and ordered
the child support obligation to be amended to require a payment of $875 per
month. Kristina Toppenberg timely filed a notice of appeal asserting the court
erred in granting the motion and, alternatively, that the court erred in calculating
the new child support obligation.




                                         1
                                        II

[¶5] “Child support determinations involve questions of law, which are fully
reviewable, findings of fact subject to the clearly erroneous standard, and in
some areas, matters of discretion subject to the abuse of discretion standard.”
Bickel v. Bickel, 

, 

. “A finding of fact is clearly
erroneous if it is induced by an erroneous view of the law, there is no evidence
to support it, or if we have a definite and firm conviction, based on the entire
record, that a mistake has been made.” Schwalk v. Schwalk, 

, 

. A “court abuses its discretion when it acts in an arbitrary,
capricious, or unreasonable manner.” 

 “A court errs as a matter of law if it
does not comply with the requirements of the child support guidelines.” Knudson
v. Knudson, 

, 

.

                                       III

[¶6] Kristina Toppenberg argues the district court erred in granting the motion
to amend child support because Zach Toppenberg, as the obligor, failed to
establish the existing level of support does not conform to the child support
guidelines.

[¶7] This Court has explained how a child support order may be amended:

             If the child support order sought to be amended was entered
      at least one year before the filing of the motion to modify the support
      obligation, the district court “shall order the amendment of the child
      support order to conform the amount of child support payment to
      that required under the child support guidelines, . . . unless the
      presumption that the correct amount of child support would result
      from the application of the child support guidelines is rebutted.”
      N.D.C.C. § 14-09-08.4(4). The party seeking modification under
      N.D.C.C. § 14-09-08.4 has the burden of proving the existing level of
      support does not conform to the guidelines. Dupay v. Dupay, 

, 

.

Schwalk, 

. “[A]ppropriate and reliable information to support a
modification of child support” must be provided by the obligor. State v. Carrier,

, 

.


                                        2
[¶8] Section 75-02-04.1-07(7), N.D. Admin. Code, allows for the imputation of
income based on earning capacity when the child support obligor is found to
have made a voluntary change in employment “for the purpose of reducing the
obligor’s child support obligation”:

      [I]f an obligor makes a voluntary change in employment resulting in
      reduction of income, monthly gross income equal to one hundred
      percent of the obligor’s greatest average monthly earnings, in any
      twelve consecutive months included in the current calendar year
      and the two previous calendar years, for which reliable evidence is
      provided, less actual monthly gross earnings, may be imputed
      without a showing that the obligor is unemployed or
      underemployed. For purposes of this subsection, a voluntary change
      in employment is a change made for the purpose of reducing the
      obligor’s child support obligation and may include becoming
      unemployed, taking into consideration the obligor’s standard of
      living, work history, education, literacy, health, age, criminal
      record, barriers to employment, record of seeking employment,
      stated reason for change in employment, likely employment status
      if the family before the court were intact, and any other relevant
      factors. The burden of proof is on the obligor to show that the change
      in employment was not made for the purpose of reducing the
      obligor’s child support obligation.

[¶9] In Schwalk v. Schwalk, the obligor sought to reduce their child support
obligation because the obligor had moved out of state and took a new job which
provided less compensation. 

. In Schwalk, we concluded the
obligor failed to “present evidence establishing that his change in employment
was not for the purpose of reducing his child support obligation.” Id. ¶ 18.

      [Obligor] only stated that he no longer works at his previous place
      of employment and that he moved to Montana to be with his wife
      after his previous employment ended. He did not present any other
      evidence about his motive and why he changed his employment.
      Furthermore, [obligor] did not present any evidence about any of
      the factors the court is to consider. [Obligor] did not request and
      schedule an evidentiary hearing and he continues to claim a hearing
      was not necessary. Although a hearing is not required by law to
      modify a child support obligation, a hearing may have been


                                        3
      necessary for [obligor] to meet his burden of proof and present
      sufficient evidence about his motive for the change in his
      employment.
             ....
             Because the district court found there was a voluntary change
      of employment, [obligor]’s income could be imputed at the average
      of his twelve highest consecutive monthly earnings beginning
      twenty-four months prior to the current proceedings. [Obligor] did
      not present any evidence about his income over the twenty-four
      months prior to the current proceedings. [Obligor] had the burden
      to prove his support obligation did not conform to the guidelines
      and he failed to present sufficient evidence to meet his burden of
      proof. The court properly found modification was not supported by
      the law and by evidence. We conclude the court did not err in
      denying [obligor]’s motion to modify his child support obligation
      based on his reduction in income.

Id. ¶¶ 18, 20.

[¶10] Here, Zach Toppenberg filed a motion to amend his child support
approximately two and a half years after the issuance of the original child
support order, asserting his change in employment resulted in reduced income.
As the obligor, Zach Toppenberg had the burden to prove “the existing level of
support does not conform to the guidelines” and “that the change in employment
was not made for the purpose of reducing” his child support obligation. See
Schwalk, 

; N.D. Admin. Code § 75-02-04.1-07(7). The district
court’s findings of fact on those issues are reviewed under the clearly erroneous
standard. Carrier, 

. “[W]e do not reweigh evidence or reassess
witness credibility” under this standard. 

[¶11] Unlike Schwalk, Zach Toppenberg’s testimony at the evidentiary hearing
explained how his move to Arizona affected his ability to pay the child support
obligation of $1,810 a month, why he moved, and why he changed his
employment. He testified he had previously worked in the oilfield doing
hydrotesting. He testified that during his final months of oilfield work, his
compensation was reduced because he was placed on “light duty” following a
back injury. He further testified that his health had deteriorated significantly,
leading to hospitalization in the ICU for the entire month of February 2023, that

                                       4
he continues to suffer from lower back pain that restricts his physical abilities,
and that medical professionals have advised him to change his lifestyle.

[¶12] Zach Toppenberg testified that he moved to Lake Havasu City, Arizona,
primarily due to his parents’ declining health. He testified that his father was
struggling with health issues, his mother had received a total hip replacement,
he now lives with his parents, he is helping them with daily activities, and he is
paying his parents $200 weekly in rent.

[¶13] Zach Toppenberg testified that since relocating to Arizona he has applied
for over 100 jobs. He stated that he had initially worked at Interstate Batteries
and Glass Doctor, both paying $16 per hour, but that he is currently employed
at Blue Sky Design and Build, earning $21 per hour with vacation and sick time
benefits. His estimated annual income is $43,680 if working 40 hours weekly,
though he does not consistently receive 40 hours of work per week but will
occasionally work overtime at $31.50 per hour. He cannot find employment in
Arizona comparable to his North Dakota salary since there are no oilfields in the
area and his job options are limited by having only a GED and no college degree.

[¶14] Zach Toppenberg acknowledged that he had received approximately
$30,000 from his parents in the past year, using $20,000 of that money to pay
Kristina Toppenberg’s attorney’s fees and using the remaining $10,000 on his
own attorney’s fees and other expenses.

[¶15] The district court found that Zach Toppenberg had voluntarily moved to
Arizona to be closer to his parents but failed to expressly determine whether it
was “for the purpose of reducing his child support obligation” under N.D.
Admin. Code § 75-02-04.1-07(7). Given that the calculations of Zach
Toppenberg’s income by the court did not follow the calculations in § 75-02-04.1-
07(7), it is fairly discernible by deduction or reason that the court did not find
Zach Toppenberg to have voluntarily changed his employment for the purpose
of reducing his child support obligation. See Montgomery v. Montgomery, 

 (N.D. 1992) (“When the court’s reasons are fairly discernible
by deduction or reason from the findings set down, and those reasons are
supported by the law and the record, we will not upset an award of child support


                                        5
merely because the findings could have been more complete.”). We also note that
the court was not required to calculate Zach Toppenberg’s income under § 75-
02-04.1-07(7) even if the court found he had voluntarily changed his employment
“for the purpose of reducing his child support obligation.” See Pomarleau v.
Pomarleau, 

, 

 (Although the district court has
discretion to calculate child support based on an obligor’s previous, higher
income, it is not mandatory to do so.); Logan v. Bush, 

, 

 (“When a court may do something, it is not mandatory but is
generally a matter within the court’s discretion.”).

[¶16] Because we can discern that the district court did not find Zach
Toppenberg’s change in employment to be voluntary “for the purpose of
reducing his child support obligation,” Zach Toppenberg’s income was not
required to be imputed as his “monthly gross income equal to one hundred
percent of the obligor’s greatest average monthly earnings, in any twelve
consecutive months included in the current calendar year and the two previous
calendar years, for which reliable evidence is provided, less actual monthly gross
earnings” under § 75-02-04.1-07(7), N.D. Admin. Code. Zach Toppenberg’s net
income was properly calculated using the “appropriate and reliable
information” provided by Zach Toppenberg to prove “the existing level of
support does not conform to the guidelines.” Carrier, 

; Devine v.
Hennessee, 

, 

; Schwalk, 

.

[¶17] Zach Toppenberg provided his 2023 tax return and his last three months’
paystubs. See N.D. Admin. Code § 75-02-04.1-02(7) (“Income must be sufficiently
documented through the use of tax returns, current wage statements, and other
information to fully apprise the court of all gross income.”). He also provided a
copy of the child support guidelines worksheet showing his calculations. That
information, along with his testimony, was sufficient to calculate his net income
and supports the district court’s finding that his “existing level of support does
not conform to the guidelines.” See Devine, 

; Schwalk, 

.

[¶18] We conclude the district court was not clearly erroneous in finding Zach
Toppenberg’s change in employment was not “for the purpose of reducing his


                                        6
child support obligation” and “the existing level of support does not conform to
the guidelines.”

                                       IV

[¶19] Kristina Toppenberg further argues the district court erred in its
calculation of Zach Toppenberg’s amended child support obligation. She asserts
the court wrongly calculated Zach Toppenberg’s income by not considering
several factors: the $30,000 in gifts he received from his parents, his fraudulent
tax return that failed to account for approximately $24,000 in income from
Evolution Hydrotesting, his ability to earn more money based on his work
history and commercial driver’s license, and his unwillingness to seek jobs that
pay as much as he used to make. She also claims that Zach Toppenberg does not
pay rent while living with his parents and did not report income from selling his
truck.

[¶20] “[A] proper finding of net income is essential to determine the correct
amount of child support under the child support guidelines.” Devine, 

; see N.D. Admin. Code § 75-02-04.1-02(3) (“Net income received by an
obligor from all sources must be considered in the determination of available
money for child support.”). “The amount of child support calculated under the
guidelines is rebuttably presumed to be the correct amount of child support in
all child support determinations.” Williams v. Williams, 

, 

 (quoting Thompson v. Johnson, 

, 

).

[¶21] Net income is the total gross annual income less certain amounts available
for deduction under N.D. Admin. Code § 75-02-04.1-01(6). See Knudson, 

. Gross income is defined as “income from any source, in any form,”
except for some specific exclusions under N.D. Admin. Code § 75-02-04.1-
01(4)(a). Id. Gross income includes the following:

      [S]alaries, wages, overtime wages, commissions, bonuses, employee
      benefits, currently deferred income, dividends, severance pay,
      pensions, interest, trust income, annuities income, gains, social
      security benefits, workers’ compensation benefits, unemployment
      insurance benefits, distributions of retirement benefits, receipt of
      previously deferred income to the extent not previously considered

                                        7
      in determining a child support obligation for the child whose
      support is under consideration, veterans’ benefits (including
      gratuitous benefits), gifts and prizes to the extent they annually
      exceed one thousand dollars in value, spousal support payments
      received, refundable tax credits, value of in-kind income received on
      a regular basis, children’s benefits, income imputed based upon
      earning capacity, military subsistence payments, and net income
      from self-employment.

N.D. Admin. Code § 75-02-04.1-01(4)(b).

[¶22] “Each child support order must include a statement of the net income of
the obligor used to determine the child support obligation, and how that net
income was determined.” N.D. Admin. Code § 75-02-04.1-02(9). “The district
court must have sufficient reliable information relating to the obligor’s income
in order to arrive at a proper child support calculation.” Williams, 

; see Schurmann v. Schurmann, 

, 

 (noting a
district court cannot rely on inaccurate or incomplete information to arrive at a
child support calculation). “Income must be sufficiently documented through
the use of tax returns, current wage statements, and other information to fully
apprise the court of all gross income.” N.D. Admin. Code § 75-02-04.1-02(7).

[¶23] Relying on Zach Toppenberg’s testimony, 2023 tax return, and three
months’ pay stubs, the district court calculated Zach Toppenberg’s gross annual
income to be $43,680 by multiplying his hourly wage of $21 by 40 hours a week,
and assuming he is paid throughout the full 52 weeks a year. The court
determined his monthly net income was to be $3,051.

[¶24] Kristina Toppenberg asserts the district court failed to consider the $30,000
in gifts Zach Toppenberg received from his parents and the $24,000 that was not
accounted for in his 2023 tax return. Under N.D. Admin. Code § 75-02-04.1-
01(4)(b), an obligor’s gross income includes salary, wages, and “gifts and prizes
to the extent they annually exceed one thousand dollars in value[.]” We conclude
the court erred in not including the gifts and other unaccounted income in Zach
Toppenberg’s gross income.




                                        8
[¶25] Kristina Toppenberg also asserts the district court erred by not increasing
Zach Toppenberg’s gross income to account for his ability to earn more money
based on his work history and commercial driver’s license, and his unwillingness
to seek jobs that pay as much as he made while working in North Dakota. She
also claims that Zach Toppenberg does not pay rent while living with his parents
and did not report income from selling his truck. The court was not required to
consider the rest of the argued “income” because they do not fall under § 75-02-
04.1-01(4)(b), and if includable for calculation of the support obligation, are up
to the court’s discretion. See Pomarleau v. Pomarleau, 

 (Although
the district court has discretion to calculate child support based on an obligor’s
previous, higher income, it is not mandatory to do so.). We also note the court
considered Zach Toppenberg’s new circumstances when calculating his income.
See N.D. Admin. Code § 75-02-04.1-02(8) (“If circumstances that materially affect
the child support obligation have changed in the recent past or are very likely to
change in the near future, consideration may be given to the new or likely future
circumstances.”). Furthermore, Zach Toppenberg testified he did not make any
money from the sale of his truck. We conclude the court did not err with respect
to Kristina Toppenberg’s additional assertions.

[¶26] We conclude the district court erred as a matter of law when calculating
Zach Toppenberg’s net income to determine his amended child support
obligation because the court failed to include within Zach Toppenberg’s gross
income the $30,000 in gifts and $24,000 omitted from the 2023 tax return.

                                       V

[¶27] We affirm the district court’s order granting Zach Toppenberg’s motion to
amend his child support obligation. We reverse in part and remand for a
recalculation of Zach Toppenberg’s net income after considering the $30,000 in
gifts and $24,000 omitted from the 2023 tax return.

[¶28] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers




                                        9
Jerod E. Tufte
Douglas A. Bahr




                  10