IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 99

April Updike, Plaintiff, Appellee, and Cross-Appellant

 v.

Bryon Updike, Defendant, Appellant, and Cross-Appellee

 and

State of North Dakota, Statutory Real Party in Interest 

No. 20210265

Appeal from the District Court of Burleigh County, South Central Judicial 

District, the Honorable John W. Grinsteiner, Judge.

AFFIRMED AS MODIFIED.

Opinion of the Court by McEvers, Justice.

Heather M. Krumm, Mandan, ND, for plaintiff, appellee, and cross-appellant; 

submitted on brief.

Elise A. Fischer (argued) and Theresa L. Kellington (on brief), Bismarck, ND,

for defendant, appellant, and cross-appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MAY 12, 2022 

STATE OF NORTH DAKOTA
1

Updike v. Updike

No. 20210265

McEvers, Justice.

[¶1] Bryon Updike appeals from a divorce judgment. He argues the district 

court erred when it calculated child support and when it distributed the 

parties’ assets and debts. April Updike cross appeals arguing the court erred 

when it failed to include a commencement date for the child support obligation. 

We hold the court did not err when it imputed income to Bryon Updike for 

purposes of child support and the court’s property and debt distribution is not 

clearly erroneous. We modify the judgment to include a child support 

commencement date that the parties have agreed to on appeal, and we affirm

the judgment as modified. 

I

[¶2] The parties were married in 2005. April Updike sued for divorce after 

they separated in 2019. April Updike was 39 years old at the time of trial. She 

did not work outside the home during the parties’ marriage. After the 

separation, she began employment in the retail industry. She works part-time 

earning approximately $16 an hour. Bryon Updike was 42 years old at the 

time of trial, and he was living in Gillette, Wyoming. He previously worked as 

a consultant in the oil and gas industry. He testified he was laid off and works 

at a parts store earning $16 an hour. The parties have one minor child. They 

agreed April Updike would have primary residential responsibility of the child.

[¶3] The district court held a trial on the issues of child support and property 

and debt division. The court found Bryon Updike is underemployed and 

imputed income of $246,864 resulting in a $2,308 monthly child support 

obligation. The court entered an order dividing the parties’ property and debts 

and awarding child support to April Updike. Neither the order nor the 

judgment set a commencement date for the child support obligation. On 

appeal, the parties have agreed the child support obligation should commence 

as of April 2020. 
2

II

[¶4] Bryon Updike argues the district court erred when it imputed income to 

him for purposes of child support. 

[¶5] We apply a mixed standard of review for child support determinations:

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.

Schrodt v. Schrodt, 2022 ND 64, ¶ 19, 971 N.W.2d 861 (internal quotation 

marks and citations omitted) (quoting Eubanks v. Fisketjon, 2021 ND 124, ¶ 6, 

962 N.W.2d 427). 

[¶6] Section 75-02-04.1-07(3), N.D. Admin. Code, applies when an obligor is 

unemployed or underemployed. It states: 

gross income based on earning capacity equal to the greatest of 

subdivisions a through c, less actual gross earnings, must be 

imputed to an obligor who is unemployed or underemployed.

a. A monthly amount equal to one hundred sixty-seven times 

the hourly federal minimum wage.

b. An amount equal to six-tenths of this state’s statewide 

average earnings for persons with similar work history and 

occupational qualifications.

c. An amount equal to ninety percent of the obligor’s greatest 

average gross monthly earnings, in any twelve consecutive months 

included in the current calendar year and the two previous 

calendar years before commencement of the proceeding before the 

court, for which reliable evidence is provided.
3

“The subdivision resulting in the greatest imputed income must be used.” 

Schrodt, 2022 ND 64, ¶ 25 (quoting McClure v. McClure, 2003 ND 130, ¶ 8, 

667 N.W.2d 575). 

[¶7] The Administrative Code provides an exception requiring imputation 

based on § 75-02-04.1-07(3)(a), the federal minimum wage, when: 

[A]n unemployed or underemployed obligor shows that 

employment opportunities, which would provide earnings at least 

equal to the lesser of the amounts determined under subdivision b 

or c of subsection 3, are unavailable within one hundred miles 

[160.93 kilometers] of the obligor’s actual place of residence . . . .

N.D. Admin. Code § 75-02-04.1-07(5). The exception applies in two situations. 

It applies when the obligor shows jobs that would allow him or her to earn an 

amount equal to six-tenths of the statewide average for people with similar 

work history and occupational qualifications are unavailable. See N.D. Admin. 

Code § 75-02-04.1-07(3)(b). It also applies when the obligor shows the 

unavailability of jobs that would allow him or her to earn 90% of his or her 

greatest consecutive twelve month period within the last two years. See N.D. 

Admin. Code § 75-02-04.1-07(3)(c). The burden is on the obligor to establish 

this exception applies. Verhey v. McKenzie, 2009 ND 35, ¶ 11, 763 N.W.2d 113.

[¶8] Bryon Updike submitted a proposed calculation based on his current 

annual income of $31,200. April Updike submitted two proposed calculations. 

The first imputed 90% of Bryon Updike’s annual income based on his highest 

12 month consecutive earnings within the past three years, totaling $246,864. 

The second imputed 100% of the same income, totaling $274,292. The first 

calculation was based on the general rules for imputing income under N.D. 

Admin. Code § 75-02-04.1-07(3). The second calculation required a finding that 

Bryon Updike failed to provide reliable income information under § 75-02-04.1-

07(6). The court adopted April Updike’s first calculation and imputed $246,864 

in income resulting in a $2,308 monthly obligation. 

[¶9] Bryon Updike asserts the district court erred when it did not apply the 

N.D. Admin. Code § 75-02-04.1-07(5) exception for situations where similar

employment is unavailable. He argues imputing income to him based on his 
4

previous earnings was improper because locating oilfield work is impossible. 

He claims that given the “significant downturn” in the oil and gas industry 

there are “no longer jobs with the oil fields that existed before.”

[¶10] Bryon Updike claims Rathbun v. Rathbun supports his position. 2017 

ND 24, 889 N.W.2d 855. In that case, an ex-husband lost his job as an oil field 

consultant and was unable to find other employment. Id. at ¶ 3. He moved for 

recalculation of child support. Id. The district court denied his request. Id. at 

¶ 4. On appeal, this Court noted Rathbun testified that he had applied, 

unsuccessfully, to 61 positions paying between $12 and $15 an hour. Id. at ¶ 

9. Noting the district court did not take this evidence into account, we held the 

exception now set out at N.D. Admin. Code § 75-02-04.1-07(5) applied. Id. at 

¶¶ 8-9. 

[¶11] Unlike Rathbun, there is no evidence detailing the number of jobs Bryon 

Updike has formally applied to or the pay ranges for those jobs. The fact that 

he has accepted a job paying $16 an hour outside the oil and gas industry does 

not establish that higher paying jobs for someone with his work history and 

qualifications are unavailable. The N.D. Admin. Code § 75-02-04.1-07(5) 

exception requires more than a showing that an obligor cannot obtain 

employment in the same industry he or she previously worked. See Verhey, 

2009 ND 35, ¶ 13 (merely showing loss of medical license was not sufficient to 

establish the exception applied). Because Bryon Updike did not submit 

evidence regarding the average income he could earn in and around his 

community based on his work history and occupational qualifications, we hold 

the district court did not err when it calculated child support based on imputed 

income under N.D. Admin. Code § 75-02-04.1-07(3)(c). 

III

[¶12] Bryon Updike asserts the district court erred when it divided the parties’ 

property and debts. 

[¶13] Under N.D.C.C. § 14-05-24(1) the district court must make an equitable 

distribution of the parties’ property and debts. The court must determine the 

total value of the marital estate and then consider the Ruff-Fischer guidelines 
5

to arrive at an equitable distribution. Willprecht v. Willprecht, 2020 ND 77, ¶ 

19, 941 N.W.2d 556. The Ruff-Fisher guidelines include the following factors:

[T]he respective ages of the parties, their earning ability, the 

duration of the marriage and conduct of the parties during the 

marriage, their station in life, the circumstances and necessities of 

each, their health and physical condition, their financial 

circumstances as shown by the property owned at the time, its 

value at the time, its income-producing capacity, if any, whether 

accumulated before or after the marriage, and such other matters 

as may be material. 

Iakel-Garcia v. Anderson, 2021 ND 210, ¶ 12, 966 N.W.2d 892 (quoting Lee v. 

Lee, 2019 ND 142, ¶ 12, 927 N.W.2d 104). A district court’s debt and asset 

distribution is reviewed as a finding of fact under the clearly erroneous 

standard. Iakel-Garcia, at ¶ 11. 

A finding of fact is clearly erroneous if it is induced by an erroneous 

view of the law, if there is no evidence to support it, or if, although 

there is some evidence to support it, on the entire evidence the 

reviewing court is left with a definite and firm conviction a mistake 

has been made. A [district] court’s findings of fact are 

presumptively correct, and we view the evidence in the light most 

favorable to the findings.

Id. (quoting Lorenz v. Lorenz, 2007 ND 49, ¶ 5, 729 N.W.2d 692). 

[¶14] Bryon Updike asserts the district court erred when it awarded April 

Updike the full proceeds from the sale of the marital home, which amounted to 

roughly $31,000. He claims the proceeds should have been split equally 

between the parties, the court did not adequately analyze the Ruff-Fischer

factors, it did not articulate its rationale, and its decision is not supported by 

the evidence. We disagree. 

[¶15] The district court found April Updike was a stay-at-home mother during 

the marriage and at the time of trial was working at an entry-level position.

The court further found that April Updike’s earning ability was unlikely to 

change without further education or training, while Bryon Updike had a 

greater earning ability than he was making at the time of trial. The court 
6

found both parties had to take out loans to make ends meet. The court 

explained it awarded April Updike the home sale proceeds based on her limited 

earning capacity and taking into consideration there would be no award of 

spousal support based on Bryon Updike’s inability to pay. Based on our review 

of the record, we conclude the district court adequately analyzed the RuffFischer factors, explained why the division of property is equitable, and its 

decision is supported by the evidence and not clearly erroneous. 

IV

[¶16] We have considered the parties’ remaining arguments and conclude they 

are either without merit or unnecessary to our decision. 

V

[¶17] We modify the judgment to include the parties’ agreed-upon child 

support commencement date of April 1, 2020. The judgment is affirmed as 

modified. 

[¶18] Jon J. Jensen, C.J. 

Gerald W. VandeWalle 

Daniel J. Crothers 

Lisa Fair McEvers 

Jerod E. Tufte