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Grossman v. Lerud

Supreme Court of North Dakota

December 18, 2014

Megan Grossman FKA Megan Johnson, Plaintiff
v.
Dustin Lerud, Defendant and Appellant and State of North Dakota, Statutory Real Party In Interest and Appellee

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Douglas R. Herman, Judge.

Cynthia G. Schaar, Jamestown, ND, for statutory real party in interest and appellee.

Kristin A. Overboe, Fargo, ND, for defendant and appellant.

Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom. Opinion of the Court by VandeWalle, Chief Justice.

OPINION

Page 93

VandeWalle, Chief Justice.

[¶1] Dustin Lerud appealed from the April 4, 2014, second amended judgment of the district court modifying his child support obligation. We affirm, concluding that the district court correctly imputed Lerud's income under the North Dakota child support guidelines using a North Dakota statewide average.

I

[¶2] Dustin Lerud and Megan Grossman have a minor child together. As part of the original judgment, Lerud was required to pay child support based on imputation of his income at the minimum wage. Grossman requested a review of Lerud's child support obligation. The State moved to modify the judgment increasing his child support obligation to $542 per month. Prior findings by the district court indicated Lerud was employed full-time as a farm manager in Minnesota over the past three years, and during the winter he spent time marketing and selling grain as well as attending farm conventions. The State submitted Lerud's 2011 and 2012 North Dakota tax returns, profit and loss statements, W-2 forms, and the 2012 Employment and Wages by Occupation publication of the North Dakota Job Service in support of the motion.

[¶3] The State sought imputation of Lerud's income under N.D. Admin. Code § 75-02-04.1-07(2)(a) based on the Job Service 2012 Employment and Wages by Occupation publication. The judicial referee found Lerud's income was less than six-tenths of the statewide average earnings for persons with similar work history and occupational qualifications, and he was underemployed. Lerud did not dispute imputation, but objected to utilizing a North Dakota statewide average of an entry-level farm manager under N.D. Admin. Code § 75-02-04.1-07(3) rather than a Minnesota statewide average where he worked. Lerud argued the average farm acreage in Minnesota is smaller than the North Dakota average, and the best measure to impute income is Minnesota's average. In support, Lerud submitted a United States Department of Labor publication providing average income of farming, fishing, and forestry occupations in Minnesota and the average income of agricultural workers in crop production and support.

[¶4] The judicial referee granted the State's motion and imputed Lerud's income based on a North Dakota statewide average. The judicial referee's findings did not accept the Minnesota standard as Lerud did not provide evidence as to his farm acreage, and the job description listed in the North Dakota Job Service publication more accurately described Lerud's employment compared to the United States Department of Labor categories. On review, the district court adopted the referee's findings and entered a final amended judgment.

II

[¶5] Lerud argues the district court erred in finding that the North ...


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