Brouillet v. Brouillet
2016 ND 40
| N.D. | 2016Background
- Bradley and Marsha Brouillet separated after living together since 2002; Bradley filed for divorce in October 2013; two younger children (2006, 2010) contested for custody; oldest child (2003) is not biologically Bradley’s but was raised by him.
- Two-day bench trial held December 2014; district court awarded Bradley primary residential responsibility for the two younger children, Marsha primary responsibility for the oldest, and parenting time to Bradley with the oldest.
- District court imputed income to Marsha for child support purposes, calculating gross income from a 2014 paystub rather than her 2013 tax return.
- Court divided marital property and debts unequally but found distribution equitable; allocated a 2007 Toyota Highlander (and its debt) to Marsha and left payment decisions to her.
- A Facebook photograph was admitted at trial after Marsha’s counsel withdrew a foundation objection; Marsha appeals several rulings.
Issues
| Issue | Plaintiff's Argument (Bradley) | Defendant's Argument (Marsha) | Held |
|---|---|---|---|
| Primary residential responsibility for younger two children | Bradley: awarded primary custody; argues best-interest factors support father | Marsha: court misapplied best-interest factors, should have awarded her custody of all three; court undervalued oldest child’s testimony | Affirmed: district court considered statutory factors, findings supported award to Bradley for younger two children |
| Splitting siblings (custody of oldest vs. younger two) | Bradley: psychological parent to oldest; parenting time appropriate to maintain bonds | Marsha: improper split; court failed to give weight to child’s preference and testimony | Affirmed: court explained split due to unique paternity facts and preserved relationships via parenting time |
| Child support — imputation of Marsha’s income | Bradley: support based on imputed income calculated from 2014 paystub | Marsha: court should have used 2013 tax return ($13,019) and not impute to $20,111 | Affirmed: court found 2013 tax return not reliable indicator and properly calculated income based on testimony and paystub |
| Equitable division of marital property and debts (including Toyota) | Bradley: distribution generally followed his proposal; both parties to be self-sufficient | Marsha: court erred assigning Highlander and debt to her without requiring Bradley continue payments | Affirmed: court applied Ruff–Fischer factors, explained disparity, gave Marsha option to retain vehicle; distribution not clearly erroneous |
| Admission of Facebook photograph | Bradley: offered the exhibit; foundation was adequate in court’s view | Marsha: lack of foundation for social-media photo; admission was abuse of discretion | Not preserved for appeal: counsel withdrew foundation objection and exhibit was received; any claimed error waived |
Key Cases Cited
- Schlieve v. Schlieve, 846 N.W.2d 733 (N.D. 2014) (standard for reviewing custody and best-interest factor analysis)
- Wolt v. Wolt, 778 N.W.2d 786 (N.D. 2010) (custody findings are factual and reviewed for clear error)
- Doll v. Doll, 794 N.W.2d 425 (N.D. 2011) (definition of clear-error standard)
- Brandner v. Brandner, 698 N.W.2d 259 (N.D. 2005) (imputing income for underemployment under child-support guidelines)
- Sonnenberg v. Sonnenberg, 782 N.W.2d 654 (N.D. 2010) (how to calculate obligor income and when to rely on past tax returns)
- Thompson, State v. Thompson, 777 N.W.2d 617 (N.D. 2010) (foundational requirements and authentication for electronic evidence)
- Fugere v. Fugere, 865 N.W.2d 407 (N.D. 2015) (Ruff–Fischer factors and equitable property division)