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Halberg v. Halberg

January 26, 2010

BRANDI C. HALBERG, PLAINTIFF AND APPELLANT
v.
DANIEL J. HALBERG, DEFENDANT AND APPELLEE



Appeal from the District Court of Nelson County, Northeast Central Judicial District, the Honorable Joel D. Medd, Judge.

The opinion of the court was delivered by: Crothers, Justice

REVERSED AND REMANDED.

[¶1] Brandi Halberg appeals from an amended judgment ordering Daniel Halberg to pay $792 per month in child support. We reverse and remand for recalculation of Daniel Halberg's child support obligation, concluding the district court misapplied the child support guidelines.

I.

[¶2] Brandi and Daniel Halberg were married in 1993, divorced in August 2006, and have three minor children together. She was awarded custody of the children. The parties stipulated to Daniel Halberg's child support obligation, and the court ordered Daniel Halberg pay $600 per month in child support and one hundred percent of the unreimbursed medical expenses.

[¶3] Daniel Halberg operates a trucking company, hauling oil in western North Dakota out of Tioga. He incorporated his trucking business in September 2008, under the name Halberg Trucking, Inc. Daniel Halberg and his father each own fifty percent of the company's stock. Daniel Halberg is a paid employee of the corporation and is the only truck driver the company employs. He is also involved in running the corporation, and he testified he acts as its CEO. Before the business was incorporated, he was a self-employed truck driver and ran his trucking business as a sole proprietorship. When he incorporated the business, he transferred all the trucking assets to the corporation. He did not begin hauling oil until the business was incorporated.

[¶4] Daniel Halberg rents a mobile home with another person in Tioga to live in when he is working. He owns a second mobile home in Lakota that he considers his primary residence, although he testified he stays in Tioga approximately twenty days a month.

[¶5] In September 2008, the Regional Child Support Enforcement Unit moved to amend the judgment to include statutory language about medical insurance. Daniel Halberg responded to the motion and moved to amend the judgment, requesting the court order that the parties split any unreimbursed medical expenses. Brandi Halberg responded to his motion and moved to modify Daniel Halberg's child support obligation.

[¶6] After an evidentiary hearing, the district court found Daniel Halberg is underemployed, imputed his income and calculated his child support obligation based on the imputed income. The court ordered Daniel Halberg pay $792 per month in child support and all unreimbursed medical expenses.

II.

[¶7] Brandi Halberg argues the district court misapplied the law by imputing Daniel Halberg's income to determine his support obligation instead of calculating his actual income. She claims his tax return is unreliable and does not accurately reflect his actual income because he received benefits from the corporation that he did not include in his income. She contends the court should use the "real numbers" to determine his income based on his personal bank statements and on the business's general ledger showing what expenses the business paid and how much money was deposited in his personal checking account.

[¶8] "`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.'" Verhey v. McKenzie, 2009 ND 35, ¶ 5, 763 N.W.2d 113 (quoting Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215). The district court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor's child support obligation. Verhey, at ¶ 5.

[¶9] The district court found Daniel Halberg is self-employed and the self-employment provisions of the child support guidelines apply, but the court also found he is underemployed and imputed his income:

"Brandi contends that Daniel is not reporting all of his income and that many items which he paid from his business checking account are actually personal expenses, which should not be deducted from his income for child support purposes. Daniel concedes that he pays from his business ...


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