Imagine that you’ve been paying child support for your child even though you have had the child in your care, custody, and control the majority of the time. Naturally, you might feel that you shouldn’t have been making those payments and wonder if you can get some of that money back. In North Dakota, there’s a way to address this situation using something called Rule 60 under the North Dakota Rules of Civil Procedure, along with some help from past court decisions, like the Brakke case.

But what does all of this mean? Let’s break it down.

What Is Rule 60?

In North Dakota, Rule 60 is like a “do-over” button for certain legal situations. It allows a person to ask the court to change or even undo a previous court order. However, this isn’t something you can use just because you’ve changed your mind or because the outcome isn’t what you wanted. Rule 60 is there for specific reasons, such as:

• Mistake, Inadvertence, Surprise, or Excusable Neglect: Maybe something went wrong in your case that wasn’t your fault, like not getting the right information or missing a deadline because of something beyond your control.
• Newly Discovered Evidence: If you find new evidence that you couldn’t have found before, you might be able to use Rule 60 to change the court’s decision.
• Fraud, Misrepresentation, or Other Misconduct: If the other party lied or did something unfair during the case, you could use Rule 60 to ask the court to fix the decision.
• Void Judgment: If the original court order wasn’t legally valid, you can ask the court to set it aside.
• Other Reasons: Rule 60 also includes a catch-all that allows the court to correct an order for any other reason that justifies relief.

Now, how does this apply to child support?

Retroactive Child Support And The Brakke Case

When it comes to child support, Rule 60 can be particularly useful if you find yourself paying child support even though the child is living with you or, in an even more unique situation, when you find out that the child has not been living with the other parent.

This is where the Brakke case becomes important. In this 1994 North Dakota Supreme Court case, the court discussed when it’s possible to modify child support orders retroactively—that means changing the amount of child support you owe, even for payments that have already been made.

In Brakke, the court set some important guidelines:

1. No Retroactive Modification Before Filing a Motion: Typically, child support can’t be changed for payments that were due before a motion to modify support was filed. In other words, you can’t go back and change what’s already happened—unless there are special circumstances.
2. Special Circumstances: There are exceptions, though. If there has been an agreement for you to have the child in your care the majority of the time, that could be considered a special circumstance. And, although not addressed by the Supreme Court yet, it is plausible that there is an exception when you have been paying child support during a period in which the other parent hasn’t been taking care of your child i.e., the child was actually living with someone else. In this regard, the court might allow for a retroactive change because it wouldn’t be fair for one parent to keep money for a child they weren’t actually supporting.
3. Equitable Considerations: The court should also look at fairness—what’s called “equitable” considerations. If it’s fair to make the change, especially in situations where the child who is to be supported is not getting any of his or her child support, the court may do so.

Applying Rule 60 And Brakke To Modify Child Support

So, let’s say you’re in a situation where you’ve been paying child support for a child who has not been getting supported with your funds, like in one of the situations discussed above. What can you do? You will want to call a lawyer to discuss options. Your lawyer will help to explain the ins and outs of bringing a motion and what evidence you will need to support the motion. Ultimately, you will want to ask for a fair outcome -one in which the child gets the support they are owed.

Conclusion

In North Dakota, Rule 60 and the Brakke case provide a way to correct unfair child support situations, particularly when new information comes to light. If you find yourself in a situation where you’ve been paying child support that wasn’t deserved, it’s always a good idea to consult with an attorney who can guide you through the process and ensure that your rights are protected. If you have questions regarding how Rule 60 and the Brakke case can apply to you, please contact SW&L Attorneys’ Family Law Group.

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