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Bismarck, ND - Divorce lawyer represented defendant with appealing from a divorce judgment and amended divorce judgment.

Michael Pomarleau and Tanya Pomarleau were married in 1999 and
have three children. In June 2018, the parties separated. In December 2020,
following a trial, the district court entered a memorandum and order in which
it calculated the parties’ child support obligations, distributed the parties’
property, and ordered Tanya Pomarleau to make an equity payment to Michael
Pomarleau to equalize the property distributions. The equity payment was offset by the health insurance costs Tanya Pomarleau incurred for the children
and Michael Pomarleau while the divorce was pending.
[¶3] Both parties challenged provisions of the memorandum and order.
Michael Pomarleau challenged the calculation of Tanya Pomarleau’s income
for child support purposes and the valuation of the parties’ assets. Tanya
Pomarleau challenged the calculation of Michael Pomarleau’s income for child
support purposes and the valuation of the oil royalties on mineral interests
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since the time of the parties’ separation. In January 2021, the district court
entered judgment consistent with the memorandum and order. Michael
Pomarleau appealed, and Tanya Pomarleau cross-appealed.
[¶4] This Court remanded to allow the court to resolve the parties’ postjudgment motions. The court concluded that Tanya Pomarleau had valid
reasons to change jobs and reduce her income, and found it was appropriate to
use her current income rather than her previous, higher salary to calculate her
child support obligation. The court calculated her income the same as in the
January 2021 judgment. The amended judgment was entered in July 2021,
and Michael Pomarleau filed a supplemental appeal.
[¶5] On appeal, Michael Pomarleau raises several arguments. He argues the
district court erred in calculating Tanya Pomarleau’s income, asserting the
court should have found she voluntarily reduced her income and used her
previous, higher income to calculate her child support obligation. He further
argues that the court overstated his income and understated Tanya
Pomarleau’s income by failing to evenly split the royalty income between the
parties in the calculation of the parties’ incomes. He asserts the court erred in
allocating the child tax credits and valuing items of property, including the
marital home, business assets, personal property, financial assets, and debts.
He also challenges the off-set of Tanya Pomarleau’s equity payment to him by
the health insurance premiums she incurred for him and the children during
the divorce proceedings.
[¶6] On her cross-appeal, Tanya Pomarleau asserts two errors. First, she
argues the district court erred in failing to make an adjustment to the net
marital estate or otherwise order reimbursement from one party to another for
expenses incurred during the divorce proceedings. Second, she argues the court
erroneously calculated the royalty payments received by the parties during the
divorce proceedings.
II
[¶7] Michael Pomarleau challenges the district court’s calculation of Tanya
Pomarleau’s income for child support purposes. He argues that Tanya
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Pomarleau voluntarily reduced her income, and accordingly, her past, higher
income should be utilized, or alternatively, her income should be averaged to
account for fluctuations. Michael Pomarleau also argues that the court’s failure
to allocate the parties’ royalty income results in an overstatement of his income
and an understatement of Tanya Pomarleau’s income.
[¶8] When reviewing a district court’s calculation of child support, we utilized
a mixed standard of review:
Child support determinations involve questions of law which are
subject to the de novo standard of review, findings of fact which are
subject to the clearly erroneous standard of review, and may, in
some limited areas, be matters of discretion subject to the abuse of
discretion standard of review. A finding of fact is clearly erroneous
if it is induced by an erroneous view of the law, if no evidence exists
to support it, or if, on the entire record, we are left with a definite
and firm conviction that a mistake has been made.
Eubanks v. Fisketjon, 2021 ND 124, ¶ 6, 962 N.W.2d 427 (quoting Gooss v.
Gooss, 2020 ND 233, ¶ 14, 951 N.W.2d 247) (internal quotations and citations
omitted). “The failure to properly apply the child support guidelines to the facts
involves an error of law.” Gooss, 2020 ND 233, ¶ 15 (quoting references
omitted). “A district court must clearly set forth how it arrived at the amount
of income and the level of support.” Id. (quoting references and internal
quotations omitted).
A
[¶9] We first consider whether the district court erred in finding that Tanya
Pomarleau had valid reasons to change employment, resulting in a lower
income, and basing her child support income on her current lower income.
[¶10] The North Dakota Administrative Code defines “gross income” and “net
income,” and the North Dakota Century Code defines “income.” See N.D.
Admin. Code §§ 75-02-04.1-01(4) and 75-02-04.1-01(6), and N.D.C.C. § 14-09-
09.10(9). The Administrative Code provides that if an obligor makes a
voluntary change in employment—a voluntary change being one taken with
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the purpose of reducing their child support obligation—the court may impute
the obligor’s income. N.D. Admin. Code § 75-02-04.1-07(7). See Logan v. Bush,
2000 ND 203, ¶ 14, 621 N.W.2d 314 (“When a court may do something, it is not
mandatory but is generally a matter within the court’s discretion. Thus, the
court may consider the reasons for the obligor’s change of employment when
exercising its discretion in determining whether to impute income under N.D.
Admin. Code § 75-02-04.1-07(9).” (internal citation omitted)).
[¶11] Here, the district court explained how it arrived at its calculation for
Tanya Pomarleau’s child support obligation. In the original memorandum and
order, the court found Tanya Pomarleau’s income decreased as a result of
switching from commission-based employment to salaried employment. It then
based her child support obligation on her current monthly salary. The court
confirmed this finding in its order for the amended judgment, finding:
Tanya’s higher earning years required her to work long hours for
commission earnings in an uncertain market. During that time,
she had a spouse with a good income to pay expenses if her
commissions were lacking and to assist with child care and other
family matters. As a single parent, Tanya testified that she wanted
employment which provided her with a guaranteed salary so that
she was no longer entirely dependent upon commissions and which
also gave her more time to be with the children. She continues to
earn a good income and an income comparable to the income
earned by Michael. The court finds these to be legitimate reasons
for Tanya to change employment and not an intentional reduction
of income to minimize her child support obligation.
It again based Tanya Pomarleau’s child support obligation on her current
$126,000 salary. While the district court had the discretion to calculate Tanya
Pomarleau’s child support obligation on her previous, higher income, it was not
mandatory to do so. We conclude the court complied with the N.D. Admin. Code
and Century Code when using Tanya Pomarleau’s current income in
calculating her child support obligation, there is evidence in the record to
support the finding, and, after a review of the entire record, we are not left
with a definite and firm conviction a mistake has been made.
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B
[¶12] We next consider whether the district court erred in failing to allocate
the parties’ royalty income, resulting in an overstatement of Michael
Pomarleau’s income and understatement of Tanya Pomarleau’s income.
[¶13] Prior to trial, Michael Pomarleau stipulated to his income. His stipulated
income included an assumption he would be receiving all of the parties’ royalty
income in the future. If Michael Pomarleau had challenged only the
overstatement of his income, we would have likely considered the issue waived
and declined to address the issue. However, Michael Pomarleau challenges
both the overstatement of his income and the understatement of Tanya
Pomarleau’s income. Because the latter issue is appropriate for review on
appeal, and the two issues are so intertwined as to be inseparable, both issues
will be resolved on appeal.
[¶14] During the divorce proceedings, Michael Pomarleau reported on his tax
return all of the royalty income received in the interim separation period. As
part of the property distribution, the district court ordered the income from the
oil royalties be split evenly between Michael Pomarleau and Tanya Pomarleau
for both the time during the separation period and permanently into the future.
The court did not include Tanya Pomarleau’s share of the royalty income when
calculating her gross income for her child support obligation. Additionally, the
court continued to include within Michael Pomarleau’s gross income both his
share of the royalty income and Tanya Pomarleau’s share of the royalty income.
The result is both an understatement of Tanya Pomarleau’s gross income in
the amount of her share of the royalty income and an overstatement of Michael
Pomarleau’s gross income by the same amount. We accordingly reverse and
remand for proper accounting of the royalty income.
III
[¶15] Michael Pomarleau argues the district court erred in allocating the child
tax credits among the parties for certain years. We review the allocation of
child tax credit under a clearly erroneous standard of review. See Lukenbill v.
Fettig, 2001 ND 47, ¶ 13, 623 N.W.2d 7, citing Mahoney v. Mahoney, 1997 ND
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149, ¶ 21, 567 N.W.2d 206 (reviewing a district court’s allocation of income tax
dependency credits subject to the clearly erroneous standard of review). The
court’s allocation of the child tax credits was not induced by an erroneous view
of the law, there is evidence in the record to support the allocation, and, on the
entire record, we are not left with a definite and firm conviction that a mistake
has been made. We affirm the allocation of the child tax credits.
IV
[¶16] Michael Pomarleau raises numerous issues challenging the district
court’s valuation, accounting for, and allocation of the parties’ assets and
liabilities. Tanya Pomarleau’s issues on appeal also challenge the court’s
valuation, accounting for, and allocation of the parties’ assets and liabilities.
[¶17] “A district court’s property distribution will not be reversed unless the
court’s findings are clearly erroneous.” Willprecht v. Willprecht, 2020 ND 77, ¶
19, 941 N.W.2d 556 (citing reference omitted). We have consistently held that:
“[A] trial court must start with a presumption that all property
held by either party whether held jointly or individually is to be
considered marital property.” Ulsaker v. White, 2006 ND 133, ¶ 13,
717 N.W.2d 567. “The trial court must then determine the total
value of the marital estate in order to make an equitable division
of property.” Id. “After a fair evaluation of the property is made,
the entire marital estate must then be equitably divided between
the parties under the Ruff-Fischer guidelines.” Id.
Schultz v. Schultz, 2018 ND 259, ¶ 24, 920 N.W.2d 483. Furthermore:
A choice between two permissible views of the evidence is not
clearly erroneous if the [district] court’s findings are based either
on physical or documentary evidence, or inferences from other
facts, or on credibility determinations.” Hoverson v. Hoverson,
2001 ND 124, ¶ 13, 629 N.W.2d 573. The value a district court
places on marital property depends on the evidence presented by
the parties. Fox v. Fox, 2001 ND 88, ¶ 22, 626 N.W.2d 660. This
Court presumes a trial court’s property valuations are correct. See
Hoverson, at ¶ 13.
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Schultz, 2018 ND 259, ¶ 14.
[¶18] The parties raised several challenges to the district court’s valuation of
assets. Michael Pomarleau challenges the value of the family home, the value
of fixed assets within American Land Services, the value of certain debt split
evenly between the parties by the court, and the collective valuation of the
parties’ respective personal property. He also asserts the value of a mobile
home was double counted. Tanya Pomarleau challenges the amount of oil
royalty income received during the proceedings. The court was presented with
significantly different valuations of the net marital estate.
[¶19] Michael Pomarleau valued the net marital estate at $735,900, while
Tanya Pomarleau valued the net marital estate at $1,506,441. Within their
valuations, both parties assigned disparate valuations to many different items
of property, including personal property, business assets, and other financial
assets. The district court was left with conflicting information from which to
assign values. For example, as to valuation of the parties’ personal property,
the court noted:
The limited information provided to the court regarding the
inventory, condition and value of the parties [sic] personal property
makes it extremely difficult for the court to accurately determine
values for the home furnishings.
A second example is with regard to Michael Pomarleau’s argument the value
of a mobile home was double counted. His argument would have required the
court to ignore financial statements provided by the parties. Any “double
counting” is attributable to deficient or conflicting evidence provided to the
court, not an error by the court.
[¶20] In distributing the parties’ property, the district court explained its
findings and rationale for its valuation of assets. With regard to these issues
the court made a choice between two permissible views of the evidence, were
within the range of evidence presented by the parties to the court, and we
conclude the findings were not clearly erroneous.
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[¶21] The parties made several challenges to the accounting for certain assets
and liabilities. Michael Pomarleau challenges the failure to recognize certain
business liability accounts, the inclusion in the marital estate of a “gentleman’s
ring” or allocation of the entire value to Tanya Pomarleau, the inclusion of gold
and silver in the marital estate or allocation of the entire value to Tanya
Pomarleau, the failure to include cash withdrawals from bank accounts made
by Tanya Pomarleau immediately before the divorce, and the failure to include
credit card debt satisfied before the separation.
[¶22] While the issues identified in the prior paragraph are not valuation
issues requiring a choice between two different valuations, the issues are still
questions of fact. For example, whether the “gentlemen’s ring,” gold, and silver
were marital assets or in Michael Pomarleau’s possession for safekeeping at
the request of a family member is a question of fact, as is whether Tanya
Pomarleau improperly withdrew funds from bank accounts prior to the divorce
proceedings. Similarly, the issues related to cash withdrawals and credit card
debts whether an off-set against Tanya Pomarleau’s equity payment should be
allowed for health insurance premiums she paid during the divorce
proceedings, and whether Tanya Pomarleau’s equity payment should be off-set
by child care expenses she incurred during the proceedings, are questions of
fact. We conclude these findings were not induced by an erroneous view of the
law, there is evidence in the record to support these findings, and we are not
left with a definite and firm conviction the findings were wrong.
[¶23] The remaining assertion of error is the failure to consider certain
business accounts payable. Even if we were to assume Michael Pomarleau
would be entirely successful regarding this argument, the net change to the
court ordered equity payment would be limited to approximately $6,200.
[¶24] We review the record and the findings as a whole:
Appellate courts review the record and findings as a whole and if
the controlling findings are supported by the evidence, they will be
upheld on appeal notwithstanding immaterial misstatements in
the lower court’s decision. See Hawkins v. Williams, 314 P.3d 1202,
1206 (Alaska 2013); Cathedral Green, Inc. v. Hughes, 174
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Conn.App. 608, 166 A.3d 873, 880 (2017); In re P.S., 330 Mont. 239,
127 P.3d 451, 457 (2006); cf. Ludwig v. Burchill, 514 N.W.2d 674,
677 (N.D. 1994) (nonsubstantive misstatements in a district court
decision do not render the court’s findings clearly erroneous). After
reviewing the record and the district court’s findings and
conclusions in their entirety, we are not persuaded the court
misapplied the law. The court, in its conclusions, expressly rejected
Elyse’s assertion “she had the full right and authority to shut down
the [reinsurance] business on her terms . . . .” The court also
expressly found Elyse’s actions associated with winding up
Limited’s business was a breach of fiduciary duty. When the
court’s findings are reviewed as a whole, we conclude the district
court did not misapply the law.
Puklich v. Puklich, 2019 ND 154, ¶ 45, 930 N.W.2d 593.
[¶25] The findings of the district court are not perfect. However, in considering
the court’s findings regarding the value of the parties’ marital estate and
equitable distribution of the marital estate as a whole, we conclude the findings
as a whole were not induced by an erroneous view of the law, there is evidence
in the record to support the findings, and we are not left with a definite and
firm conviction that a mistake has been made with regard to the equitable
division of the parties’ marital estate. The court’s findings with respect to the
allocation of the parties’ assets and liabilities, as challenged by both parties, is
affirmed.

Outcome: We conclude the district court did not err in its distribution, accounting,
and valuation of the net marital estate, or in its allocation of the child tax
credits. We affirm the district court’s distribution of the net marital estate.
However, we conclude the royalty income was overstated on Michael
Pomarleau’s income and understated on Tanya Pomarleau’s income, and
accordingly reverse and remand for recalculation of the parties’ income for
child support purposes.

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