974 N.W.2d 360
N.D.2022Background
- Parties married in 2005, separated in 2019; one minor child; April has primary residential responsibility.
- April was a long-term stay-at-home parent; post-separation she works part-time in retail (~$16/hr).
- Bryon formerly worked as an oil-and-gas consultant, was laid off, and currently works at a parts store (~$16/hr) in Wyoming.
- District Court found Bryon underemployed, imputed income of $246,864 (90% of his highest consecutive 12-month earnings) and set child support at $2,308/month.
- Court awarded April the full proceeds (~$31,000) from sale of the marital home and did not award spousal support.
- Judgment omitted a child support commencement date; on appeal the parties agreed it should begin April 1, 2020, and the Court modified the judgment accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court properly imputed income to Bryon for child support under ND Admin. Code § 75-02-04.1-07(3) | April: impute 90% of Bryon’s highest 12-month earnings ($246,864) to reflect earning capacity | Bryon: industry downturn makes comparable oilfield work unavailable; the § 75-02-04.1-07(5) exception should apply; his actual current income ($31,200) should be used | Affirmed. Court properly imputed $246,864; Bryon failed to prove the unavailability exception (no evidence of local job availability or job-search/pay-range data) |
| Whether the property/debt division (award of home-sale proceeds to April) was equitable | April: limited earning capacity and custodial status justify awarding proceeds to her | Bryon: proceeds should be split equally; court failed to apply Ruff-Fischer factors or explain rationale | Affirmed. Court considered Ruff-Fischer factors (ages, earning ability, marriage duration, financial circumstances) and reasonably awarded proceeds to April given her limited earning capacity and absence of spousal support |
| Whether omission of a child support commencement date was reversible error | April: court should set a commencement date | Bryon: did not prevail on contest; parties agreed on a date on appeal | Court modified judgment to include agreed commencement date of April 1, 2020 |
Key Cases Cited
- Schrodt v. Schrodt, 971 N.W.2d 861 (N.D. 2022) (mixed standard of review for child support and guidance on imputing income)
- McClure v. McClure, 667 N.W.2d 575 (N.D. 2003) (requirement to use subdivision that results in greatest imputed income)
- Verhey v. McKenzie, 763 N.W.2d 113 (N.D. 2009) (burden on obligor to prove exception to imputation based on local job unavailability)
- Rathbun v. Rathbun, 889 N.W.2d 855 (N.D. 2017) (application of unavailability exception where extensive unsuccessful job applications were shown)
- Iakel-Garcia v. Anderson, 966 N.W.2d 892 (N.D. 2021) (use of Ruff-Fischer factors and clearly erroneous standard for property division)