Interest of T.C.R.No. 20040217

Per Curiam.

[¶1] Dean Kinsey has appealed from an order modifying an earlier child support order to conform to the child support guidelines. Kinsey moved to modify child support but did not move to change legal custody of the child, and he served the motion only upon the child support enforcement unit. He did not serve the motion upon the child's mother, Karen Rosaaen, who is the custodial parent. Kinsey claims the child has been residing with Kinsey or Kinsey's mother since 2001, and contends the court erred in ordering him to pay child support for periods when he has had de facto custody of the child. Kinsey also claims there were procedural errors in the modification proceedings.

[¶2] We affirm the order modifying child support under N.D.R.App.P. 35.1(a)(4). But see Brakke v. Brakke, 525 N.W.2d 687, 690 (N.D. 1994) (child support arrearages may be modified under certain circumstances by bringing a motion under N.D.R.Civ.P. 60(b) in conjunction with a motion to change custody).

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