Nelson v. Nelson

Nelson v. Nelson, 2000 ND 118, 617 N.W.2d 131

Filed June 8, 2000
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2000 ND 118

Alexis Rae Nelson, by her mother, Cyndi Brunelle, and Cyndi Brunelle, Plaintiffs and Appellants
v.
James Nelson, personal representative of the Estate of Ronald R. Nelson, Defendant and Appellee

No. 20000002

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Michael O. McGuire, Judge.
AFFIRMED.
Opinion of the Court by Neumann, Justice.
David A. Overboe, 1042 14th Avenue E., West Fargo, N.D. 58078, for plaintiffs and appellants.
Steven E. McCullough of Ohnstad Twichell, P.O. Box 458, West Fargo, N.D. 58078-0458, for defendant and appellee.

Nelson v. Nelson
No. 20000002

Neumann, Justice.

[¶1] Alexis Rae Nelson, by her mother, Cyndi Brunelle, and Cyndi Brunelle individually,

Appeal from the district court's summary judgment dismissing a child support claim. We summarily affirm under Rule 35.1(a)(7), N.D.R.App.P.

[¶2] On April 22, 1996, Alexis Nelson was born to Ronald R. Nelson and Cyndi Brunelle. On October 21, 1996, the trial court ordered the father pay $604 per month in child support until the child reached age eighteen or graduated from high school. The father died on December 20, 1998. The father did not owe any child support arrearages at his death, and the child has received $977 per month in Social Security survivor's death benefits because of the father's death. On June 11, 1999, the mother brought a child support claim against the father's estate seeking a lump-sum payment providing support until the child reaches age eighteen or graduates. The estate denied the claim, moving for summary judgment. The trial court granted the motion and the mother appeals.

[¶3] The district court was not asked to decide whether a child support obligation survives an obligor's death under North Dakota law and neither party asked this Court to decide the issue on appeal. We, therefore, decline to address that issue. On these facts, and in the absence of a contrary contractual stipulation, we merely hold that if and to the extent a child support obligation may survive the obligor's death the Social Security survivors' death benefits,

must be credited as a payment toward the obligor's child support obligation in the month (or other period) the payment is intended to cover, but may not be credited as a payment toward the child support obligation for any other month or period.See N.D. Admin. Code § 75-02-04.1-02(11); Tibor v. Bendrick, 1999 ND 92, ¶¶ 8-9, 593 N.W.2d 395.

[¶4] We summarily affirm the district court's summary judgment under Rule 35.1(a)(7), N.D.R.App.P.

[¶5] William A. Neumann
Mary Muehlen Maring
Carol Ronning Kapsner
Dale V. Sandstrom
Gerald W. VandeWalle, C.J.