Van Beek v. Van Beek

                    IN THE SUPREME COURT
                    STATE OF NORTH DAKOTA

                                  

Tami Van Beek,                                            Plaintiff and Appellee
     v.
Darrell Van Beek,                                      Defendant and Appellant
     and
State of North Dakota,                           Statutory Real Party in Interest

                                 No. 20240319

Appeal from the District Court of Emmons County, South Central Judicial
District, the Honorable Bobbi B. Weiler, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by Jensen, Chief Justice.

Elizabeth A. Elsberry, Bismarck, ND, for plaintiff and appellee.

Leah M. Warner, Fargo, ND, for defendant and appellant.
                              Van Beek v. Van Beek
                                  No. 20240319

Jensen, Chief Justice.

[¶1] Darrell Van Beek appeals from a judgment entered following a bench trial
in a divorce action. He asserts the district court erred in valuing and distributing
the marital estate, abused its discretion in not allowing his insurance agent to
testify, erred in awarding Tami Van Beek primary residential responsibility,
erred in calculating his child support obligation, and erred in awarding Tami
Van Beek attorney’s fees. We affirm the judgment with the exception of the
inclusion of the potential income of $198,823 in the marital estate, and reverse
and remand without further evidentiary proceedings for reconsideration of an
appropriate allocation of the existing marital estate in light of Darrell Van Beek’s
decision not to farm the land. We also remand for consideration of whether an
award of attorney’s fees and costs with respect to this appeal will result in a
financial hardship to Darrell Van Beek and, if appropriate, the amount of any
award.

                                         I

[¶2] The Van Beeks married in June 2007 and have three children together. In
April 2024, the district court conducted a two-day trial during which Darrell Van
Beek and Tami Van Beek provided testimony and exhibits. The court also
received in camera testimony from two of the parties’ children, the testimony of
administrators from the local high school, and testimony from Darrell Van Beek’s
parents.

[¶3] The district court divided the marital estate and debts by allocating to
Tami Van Beek farmland and an equity payment of $700,000. She was also
awarded attorney’s fees under N.D.C.C. § 14-09-29(4). Darrell Van Beek was
allocated crops, land rent, and vehicles. Tami Van Beek was granted primary
residential responsibility and child support based on a determination that
Darrell Van Beek’s income was $48,000 per year.




                                         1
                                        II

[¶4] Darrell Van Beek argues the district court erred in distributing the marital
property by breaking up the family farming operation, erred in its valuation of
multiple marital assets, and erred by not allowing his insurance agent to testify.

[¶5] This Court reviews a district court’s distribution of marital property as a
finding of fact under a clearly erroneous standard:

      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, after
      reviewing all the evidence, we are left with a definite and firm
      conviction a mistake has been made. We view the evidence in the
      light most favorable to the findings, and the district court’s factual
      findings are presumptively correct. Valuations of marital property
      within the range of the evidence presented are not clearly erroneous.
      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.

Kitzan v. Kitzan, 

, 

 (cleaned up).

[¶6] In a divorce action, the district court “shall make an equitable distribution
of the property and debts of the parties.” N.D.C.C. § 14-05-24(1). Cases involving
a long-term marriage generally support an equal property distribution. Swanson
v. Swanson, 

, 

. Our law does not mandate a set
formula or method to determine this division. 

 Instead, the division is based
on the particular circumstances of each case. 

[¶7] “The [district] court must include all of the parties’ assets and debts in the
marital estate and then consider the Ruff-Fischer guidelines to determine an
equitable distribution.” Willprecht v. Willprecht, 

, 

. The Ruff-Fischer factors include the following:

      The 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

                                         2
      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.

Willprecht, ¶ 19 (cleaned up).

[¶8] “The [district] court is not required to make specific findings for each
factor, but it must specify a rationale for its decision.” Willprecht, 

. The distribution does not need to be equal to be equitable, but a substantial
disparity must be explained. Berg v. Berg, 

, 

.

                                        A

[¶9] Darrell Van Beek argues the district court erred when it broke up his
family farming operation by awarding Tami Van Beek the northeast quarter of
Section 21. This Court has recognized on numerous occasions “the importance
of preserving the viability of a business operation like a family farm, and
liquidation of an ongoing farming operation or business is ordinarily a last
resort.” Rebel v. Rebel, 

, 

 (cleaned up).

[¶10] Darrell Van Beek argues the district court went “out of its way to suggest
this is not a family farm because Darrell was uncertain if he planned to farm
going forward and did not plant crops on the land in 2024.” Darrell Van Beek
asserts this goes against the evidence that he has been farming for years, is the
son of a farmer, and that the parties’ son was heavily involved in farming and
wishes to become a farmer following high school.

[¶11] Two potential farming operations were discussed at trial—Van Beek
Farms, which is owned by Darrell Van Beek’s parents, and the use of the parties’
farmland allocated to Tami Van Beek.

[¶12] Darrell Van Beek and Tami Van Beek purchased the farmland in 2020 and
it is the only farmland they own. At the time of trial, Darrell Van Beek had
farmed the land for three growing seasons—2021 through 2023. Darrell Van Beek
testified he did not intend to farm the farmland in 2024. The parties’ length of
ownership and use of the farmland is significantly different than the family
farming operations discussed in our prior cases. See, e.g., Willprecht, 

,

                                        3
¶ 2 (parties acquired farmland during the 19-year marriage); Marschner v.
Marschner, 

, 

 (entirety of the nearly 40-year
marriage was spent on the farm); Christmann v. Christmann, 

,

 (parties farmed for nearly 50 years).

[¶13] While our caselaw indicates the district court should consider the
preservation of a family farming operation when it is a viable business, the
parties’ farmland was not a viable business. Darrell Van Beek testified that his
2023 income from the farmland was $18,000 and that he did not have any crops
on hand from prior growing seasons. The evidence received at trial indicated the
USDA mortgage payment was $14,000, and Darrell Van Beek owed at least
$17,000 in expenses for the 2023 growing season. Darrell Van Beek admitted that
this is not a sustainable business plan and testified he did not know if he would
be farming in the future, and he was not going to farm in 2024. While Darrell
Van Beek has farmed for a significant period of time and is part of a “farming
family,” his farming has almost exclusively been as either a family member or
employee of his parents’ farming operation.

[¶14] After a review of the entire record, we conclude the district court’s
findings regarding the limited use of the farmland allocated to Tami Van Beek
were not induced by an erroneous view of the law, were supported by evidence
in the record, and we are not left with a definite and firm conviction a mistake
has been made.

                                         B

[¶15] Darrell Van Beek argues the district court erred in valuing multiple marital
assets. When granting a divorce, a district court is required to value the parties’
property and debts and make an equitable distribution. N.D.C.C. § 14-05-24(1);
Berdahl v. Berdahl, 

, 

. “Valuations of marital
property within the range of the evidence presented are not clearly erroneous.”
Berdahl, ¶ 6 (cleaned up). A district court’s property valuation is a finding of fact,
which will not be reversed on appeal unless they are clearly erroneous. Orwig v.
Orwig, 

, 

 (citing Wald v. Wald, 

, 

). “A finding of fact is clearly erroneous if it is induced


                                          4
by an erroneous view of the law, there is no evidence to support it, or, after
reviewing the entire record, this Court is left with a definite and firm conviction
a mistake has been made.” Wald, ¶ 11. “The district court’s valuations depend
on the evidence the parties present, and we presume the court’s valuations are
correct.” Orwig, ¶ 22. This Court gives deference to the “district court’s
credibility determinations.” Id.

                                        1

[¶16] Darrell Van Beek argues the district court erred in accepting Tami Van
Beek’s valuation of sunflowers, corn, and soybeans after Darrell Van Beek
testified the crops did not exist nor were in his control. Tami Van Beek valued
the crops at $1,176,000. Darrell Van Beek contends the crops did not exist and as
such, there was no value to be allocated. Tami Van Beek created a demonstrative
exhibit to support her valuation of crops on hand using insurance records and
settlement statements stipulated as admissible by the parties and received as
evidence by the court.

[¶17] The district court weighed the evidence offered by both parties, finding
Tami Van Beek’s evidence more credible and accepted her value for the crops on
hand. The court’s valuation is within the range of the evidence presented and its
choice between two permissible views of the evidence is not clearly erroneous.

                                        2

[¶18] Darrell Van Beek argues that the district court erred by excluding
testimony from his insurance agent regarding the crop insurance paperwork
used by Tami Van Beek to determine the value of crops on hand. An appeal
regarding the denial of testimony is reviewed under the abuse of discretion
standard. State v. Schmidkunz, 

, 

. “The district
court abuses its discretion only when it acts in an arbitrary, unreasonable, or
unconscionable manner, or when its decision is not the product of a rational
mental process leading to a reasoned determination.” Nesvig v. Nesvig, 

, 

.




                                        5
[¶19] Tami Van Beek used insurance records authored by the insurance agent as
well as other documentation to create her demonstrative exhibit regarding the
value of the crops on hand. Prior to trial, the parties stipulated to the admission
of those documents and the court received the documents as evidence. Darrell
Van Beek did not disclose his insurance agent as a potential witness prior to trial.
At trial, Tami Van Beek provided extensive testimony regarding the value of the
crops using the insurance records, other documentation, and her demonstrative
exhibit.

[¶20] At trial, Darrell Van Beek called the insurance agent as a witness and Tami
Van Beek objected. Darrell Van Beek initially argued the insurance agent was
being called as an impeachment witness. After discussion that the insurance
agent would not be testifying that her insurance documents were incorrect,
Darrell Van Beek argued that because he disagreed with the crop values included
in Tami Van Beek’s demonstrative exhibit, the insurance agent should be
permitted to testify off of the demonstrative exhibit and offer her opinion as to
Tami Van Beek’s values. The court did not allow the insurance agent to testify.

[¶21] On appeal, Tami Van Beek contends that Darrell Van Beek failed to make
an offer of proof at trial and that, without an offer of proof, he failed to properly
preserve the issue for review. Before an aggrieved party can challenge the
propriety of a discovery sanction which excludes evidence, the party must have
made an offer of proof, demonstrating prejudice from the court’s refusal to allow
the evidence. Wagner v. Peterson, 

 (N.D. 1988); Rule 103(a)(2),
N.D.R.Ev. Darrell Van Beek did not make an offer of proof as to what the
insurance agent would testify to regarding the demonstrative exhibit or how the
testimony would be different than the information provided in the stipulated
documents. Absent an offer of proof, we have no means to determine whether
the exclusion of the witness resulted in prejudice. We conclude Darrell Van Beek
failed to adequately preserve the issue.

                                         3

[¶22] Next, Darrell Van Beek argues the district court erred by allocating
$198,823 in non-existent funds to him and described by the district court as


                                         6
“Lands Rented but not farmed.” The parties paid Lori Carlson and Mary
Baumgartner just over $13,000 for land rent in March 2023. Darrell Van Beek
testified that he paid Carlson and Baumgartner rent for 2023, claimed he did not
farm their land, and testified that his father farmed the land. Tami Van Beek
testified that Darrell Van Beek explained the situation by stating, “why would I
farm that so you can get the money?” Darrell Van Beek admitted that he could
have made money off of the rented land. The court found the gross income from
the land that was rented but not farmed by the parties was approximately
$398,823.91, allowed an estimate of $200,000 for expenses had the land been
farmed by the parties, and determined net potential income of $198,823.

[¶23] The valuation date in this matter was December 1, 2023. The land was
farmed and the district court noted the following: “This Court will assess
$198,823 in Darrell’s column for 2023 lands that he allegedly did not farm.” It is
unclear whether the court was increasing the parties’ marital estate or
considering Darrell Van Beek’s actions in determining a fair allocation of the
existing marital estate.

[¶24] North Dakota has long recognized the concepts of economic and noneconomic fault. Halvorson v. Halvorson, 

 (N.D. 1992). The
consideration of economic fault aims to address whether a party dissipated
marital assets during a divorce. 

 (“The court specifically found that
Glenn’s transfer of the property resulted in dissipation of marital assets and
constituted economic fault.”). If a party dissipates property, the district court
does not award the previously transferred property to the offending person;
rather, the court charges the value of the improperly transferred assets to the
offender’s share of the property division. 

 A party’s dissipation of marital
assets is a particularly relevant factor in equitably dividing property. Horner v.
Horner, 

, 

. “Economic misconduct is
misconduct that results in a wasted asset or in the reduction of the net marital
estate.” Swanson v. Swanson, 

, 

. “Such a
‘destruction, squandering or waste of assets’ is properly considered by a district
court under the Ruff-Fischer guidelines.” 

 (quoting Amsbaugh v. Amsbaugh, 

, 

 (Maring, J., concurring)). “Economic fault and
dissipation of assets are relevant factors the court may consider and are grounds

                                        7
for an unequal distribution.” Id.; see also Noble v. Noble, 

,

, 

 (Wisconsin law does not require that a party to
a pending divorce take advantage of an opportunity to acquire property that
would increase the value of the marital estate. “This is so even if the opportunity
represents a good deal.”).

[¶25] Our prior cases recognize that a district court may consider economic
misconduct as a basis for an unequal distribution of the marital estate. However,
our cases have not previously recognized economic misconduct as a basis for
increasing the marital estate through “potential” income or by imputing income.
While it would be appropriate for the court to determine whether Darrell Van
Beek’s payment of land rent and subsequent decision not to farm the land was
economic misconduct for the purpose of an unequal division of the marital
estate, under the facts of this case we decline to extend our holdings regarding
economic misconduct beyond consideration of an unequal distribution of the
existing marital estate to allow an increase in the marital estate itself. Whether
the court’s determination to “assess $198,823 in Darrell’s column for 2023 lands
that he allegedly did not farm” was an improper inclusion of the income in the
marital estate or the court’s proper consideration of, an accounting for economic
misconduct is unclear.

[¶26] We reverse to the extent the potential income of $198,823 was included
within the marital estate and remand without further evidentiary proceedings
for reconsideration of an appropriate allocation of the existing marital estate in
light of Darrell Van Beek’s decision not to farm the land.

                                        4

[¶27] Darrell Van Beek argues his testimony and evidence established he did not
own or have possession of the semi and 2023 Ford F550 and the allocation of
those assets to him was therefore clearly erroneous. A purchase agreement and
Tami Van Beek’s testimony indicated that the parties ordered the 2023 Ford F550
in December 2022. Tax returns showed that Darrell Van Beek wrote this vehicle
off on his 2022 individual taxes. As for the semi, a semi valued at $46,500 was on




                                        8
the asset report on Darrell Van Beek’s 2022 individual tax return and it was on
previous tax years’ depreciation schedules.

[¶28] The district court weighed the evidence offered by both parties, finding
Tami Van Beek’s more credible. “In a bench trial, the district court determines
credibility issues, which we will not second-guess on appeal.” Kemmet v. Kemmet,

, 5 N.W.3d 509 (quoting Berdahl v. Berdahl, 

, 

). The court’s choice between two permissible views of the evidence
is not clearly erroneous.

                                        III

[¶29] This Court reviews an award of primary residential responsibility under
the clearly erroneous standard of review. Boeckel v. Boeckel, 

, 

. This Court does not reweigh the evidence or reassess the credibility
of witnesses, nor does this Court substitute its judgment for a district court’s
initial decision. 

 A district court’s decision awarding primary residential
responsibility is a finding of fact which will not be set aside on appeal unless it
is induced by an erroneous view of the law, if no evidence exists to support it, or
if on the entire record this Court is left with a definite and firm conviction a
mistake has been made. Duff v. Kearns-Duff, 

, 

.
“A choice between two permissible views of the weight of the evidence is not
clearly erroneous[.]” 

 (quoting Sorenson v. Slater, 

, 

). A district court shall consider the best interests of the child in awarding
primary residential responsibility, and the court must consider all relevant
factors under N.D.C.C. § 14-09-06.2(1). Id. ¶ 6.

[¶30] On appeal, Darrell Van Beek argues the district court erred in applying
best-interest factors i and j of N.D.C.C. § 14-09-06.2(1) in its analysis of the best
interests of the children. Darrell Van Beek does not contest the court’s findings
under factors a, b, c, d, e, f, g, h, k, l, or m.




                                         9
                                        A

[¶31] Regarding best-interest factor i, Darrell Van Beek argues the district court
erred when it awarded Tami Van Beek primary residential responsibility of
L.V.B. because the child expressed a desire of wanting to reside with him.

[¶32] Under N.D.C.C. § 14-09-06.2(1)(i), “[i]f the court finds by clear and
convincing evidence that a child is of sufficient maturity to make a sound
judgment, the court may give substantial weight to the preference of the mature
child[,]” but also “shall give due consideration to other factors that may have
affected the child’s preference, including whether the child’s preference was
based on undesirable or improper influences.” (Emphasis added.) This Court has
explained the district court generally has “wide discretion regarding the
examination of witnesses, and, under appropriate circumstances, a court may
refuse to allow a witness to testify.” Reineke v. Reineke, 

, 

 (cleaned up); see also N.D.R.Civ.P. 61 (“[N]o error in admitting or
excluding evidence, or any other error by the court or a party, is ground for
granting a new trial, . . . or for vacating, modifying, or otherwise disturbing a
judgment or order” and “the court must disregard all errors and defects that do
not affect any party’s substantial rights.”).

[¶33] “[M]ore weight should be given to a child’s [custodial] preference as the
child matures.” Frueh v. Frueh, 

, 

; see Mertz v.
Mertz, 

, 96 n. 2 (N.D. 1989). “The preference of a child who is
capable of intelligently choosing between his parents for custody can be
significant in determining the best interest of the child,” but the “child’s
preference is ‘only one factor’ to consider and is not usually determinative.” Novak
v. Novak, 

 (N.D. 1989) (emphasis added).

[¶34] Here, under best-interest factor i, the district court found that L.V.B. was
not mature enough to make his own decisions and the court declined to place
significant weight on L.V.B.’s preference. The court’s findings included the
following:

      Tami testified that L.V.B. is a people-pleaser, and that he has always
      been controlled and manipulated by Darrell. [The local school


                                        10
      superintendent/school counselor] described him as immature,
      reactive, and questioned his honesty. . . . While Darrell asked the
      Court to take L.V.B.’s opinion into consideration, he did not provide
      any evidence convincing this Court that L.V.B. is mature enough to
      make his own decisions. The Court has serious concerns about
      L.V.B.’s motivation at school, respect for authority, and a true
      understanding of the consequences of his actions.

            . . . This Court does not find L.V.B. mature enough to make his
      own decisions and will not take his preference into consideration.
      The Court will, however, take the demeanor and content of his
      testimony into consideration in issuing the parenting plan.

[¶35] The maturity of the child depends on the facts and circumstances of each
individual case. Under the clearly erroneous standard of review, we do not
reassess evidence or the witnesses’ credibility or retry a custody case, and we do
not substitute our judgment for a district court’s decision merely because we
might have reached a different result. Niemann v. Niemann, 

, 

. “A choice between two permissible views of the weight of the
evidence is not clearly erroneous and our deferential review is especially
applicable for a difficult child custody decision involving two fit parents.” 

 On
appeal, the complaining party bears the burden of proving a finding of fact is
clearly erroneous. Koble v. Koble, 

, 

.

[¶36] We conclude the district court correctly applied the law, there is evidence
in the record to support the findings on factor i, and we are not left with a definite
and firm conviction a mistake has been made. The findings regarding the child’s
maturity and the child’s preference are not clearly erroneous.

                                         B

[¶37] Darrell Van Beek argues the district court erred by finding there was
credible evidence of domestic violence, applying the statutory domestic violence
presumption, and that the court’s finding of domestic violence is inconsistent
with awarding him unsupervised parenting time of L.V.B.

[¶38] The district court considers evidence of domestic violence under best-interest factor j:

                                         11
      In determining parental rights and responsibilities, the court shall
      consider evidence of domestic violence. If the court finds credible
      evidence that domestic violence has occurred, and there exists one
      incident of domestic violence which resulted in serious bodily injury
      or involved the use of a dangerous weapon or there exists a pattern
      of domestic violence within a reasonable time proximate to the
      proceeding, this combination creates a rebuttable presumption that
      a parent who has perpetrated domestic violence may not be
      awarded residential responsibility for the child. This presumption
      may be overcome only by clear and convincing evidence that the
      best interests of the child require that parent have residential
      responsibility. The court shall cite specific findings of fact to show
      that the residential responsibility best protects the child and the
      parent or other family or household member who is the victim of
      domestic violence. . . . The fact that the abused parent suffers from
      the effects of the abuse may not be grounds for denying that parent
      residential responsibility. As used in this subdivision, “domestic
      violence” means domestic violence as defined in section 14-07.1-01.
      A court may consider, but is not bound by, a finding of domestic
      violence in another proceeding under chapter 14-07.1.

N.D.C.C. § 14-09-06.2(1)(j). Domestic violence “includes physical harm, bodily
injury, sexual activity compelled by physical force, assault, or the infliction of
fear of imminent physical harm, bodily injury, sexual activity compelled by
physical force, or assault, not committed in self-defense, on the complaining
family or household members.” N.D.C.C. § 14-07.1-01(2).

[¶39] The district court found credible evidence of domestic violence and
applied the statutory domestic violence presumption. After a review of the
record we conclude the findings are supported by evidence in the record, the
court did not misapply the law, and we are not left with a definite and firm
conviction a mistake has been made. The findings are not clearly erroneous and
the court did not err in applying the statutory domestic violence presumption.

[¶40] To overcome the domestic violence presumption, Darrell Van Beek must
clearly and convincingly demonstrate the children’s best interests require that he
have primary residential responsibility. N.D.C.C. § 14-09-06.2(1)(j). The district




                                       12
court addressed each best-interest factor, finding nine factors favored Tami Van
Beek and the remaining factors favored neither party or were not applicable.

[¶41] The district court weighed best-interest factor j and the evidence of
domestic violence and determined, based on the evidence as a whole, it was in
the children’s best interests for Tami Van Beek to receive primary residential
responsibility. After a review of the entire record, we conclude the court’s
findings were not induced by an erroneous view of the law, were supported by
the evidence in the record, and we are not left with a definite and firm conviction
a mistake has been made.

[¶42] Darrell Van Beek argues that the district court’s finding of domestic
violence is inconsistent with awarding him unsupervised parenting time of
L.V.B. Factor J precludes a parent who has perpetrated domestic violence from
being awarded residential responsibility for the child. N.D.C.C. § 14-09-06.2(1)(j).
To overcome the presumption, Darrell Van Beek would be required to provide
clear and convincing evidence that the best interests of the child require that he
have residential responsibility. N.D.C.C. § 14-09-06.2(1)(j). The court is required
to cite specific findings of fact to show that the residential responsibility best
protects the child and the parent or other family or household member who is
the victim of domestic violence. In allowing Darrell Van Beek unsupervised
parenting time of L.V.B., the court found the following:

             The Court has serious concerns about Darrell and L.V.B.’s
      relationship, which seems to have facets of control and
      manipulation. The Court gets the impression that if it ordered
      supervised parenting time for L.V.B., L.V.B. would not follow the
      order, and would further drive a wedge between L.V.B. and Tami.
      Further, L.V.B. is a teenager, and has the ability to remove himself
      from an unsafe situation.

[¶43] Tami Van Beek has not appealed the district court’s award of
unsupervised parenting time to Darrell Van Beek and we therefore decline to
consider whether the court’s factual findings are sufficient to support
unsupervised parenting time. However, we conclude any inconsistency between
the court’s finding Darrell Van Beek perpetrated domestic violence and the


                                        13
award of unsupervised parenting time does not demonstrate the court’s
conclusion regarding the domestic violence presumption was erroneous, but
creates a question, not raised on this appeal, of whether the award of
unsupervised parenting time itself was appropriate.

                                       IV

[¶44] Darrell Van Beek argues the district court erred in calculating his income
to determine his child support obligation. Specifically, he argues the court erred
in considering his in-kind income.

[¶45] Our standard of review for child support decisions is well-established:

      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.

Updike v. Updike, 

, 

 (quoting Schrodt v. Schrodt,

, 

).

[¶46] The district court was required to consider the value of any in-kind income
when determining an obligor’s gross income for purposes of calculating child
support. Halberg v. Halberg, 

, 

; N.D. Admin. Code
§ 75-02-04.1-07(1). In-kind income is:

      [T]he receipt from employment or income-producing activity of any
      valuable right, property or property interest, other than money or
      money’s worth, including forgiveness of debt (other than through
      bankruptcy), use of property, including living quarters at no charge
      or less than the customary charge, and the use of consumable
      property or services at no charge or less than the customary charge.

N.D. Admin. Code § 75-02-04.1-01(5); Halberg, ¶ 21.



                                        14
[¶47] In determining Darrell Van Beek’s child support obligation, the district
court found:

            Both parties submitted proposed child support calculations to
      the Court. Tami proposed Darrell’s income for the purposes of child
      support be 1099 income of $48,000/year. See Exhibits 90A, 90B, 90C.
      Darrell proposed his income for the purpose of child support be
      $42,000/year. See Exhibit 149. Greg testified he pays Darrell
      $48,000/year. Darrell testified he only earned $42,000 this year, and
      indicated it was lower in 2023 because he owed Greg money, for
      something. If Darrell had a debt to Greg waived in lieu of receiving
      cash for his work, that is in-kind income, and is included in gross
      income for the purposes of child support. See N.D.A.C. § 75-02-04.1-
      01(4)(b) and (5).

[¶48] We conclude the district court did not misapply the law in considering
Darrell Van Beek’s in-kind income.

                                        V

[¶49] Tami Van Beek’s request for attorney’s fees in the divorce were made in
part under N.D.C.C. § 14-09-29(4). Section 14-09-29(4), N.D.C.C., provides:

      In any proceeding dealing with parental rights and responsibilities
      in which a parent is found to have perpetrated domestic violence,
      and there exists one incident of domestic violence which resulted in
      serious bodily injury or involved the use of a dangerous weapon or
      there exists a pattern of domestic violence within a reasonable time
      proximate to the proceeding, all court costs, attorney’s fees,
      evaluation fees, and expert witness fees must be paid by the
      perpetrator of the domestic violence unless those costs would place
      an undue financial hardship on that parent.

(Emphasis added.)

[¶50] Darrell Van Beek argues the district court erred in awarding Tami Van
Beek attorney’s fees under N.D.C.C. § 14-09-29(4) without making a finding
whether those costs would result in undue financial hardship. Tami Van Beek
expressly sought a recovery of costs and attorney’s fees pursuant to § 14-09-29(4).
The court considered § 14-09-29(4) and found Darrell Van Beek perpetrated

                                        15
domestic violence as defined in the statute. Despite notice that Tami Van Beek
was seeking a recovery of costs and attorney’s fees pursuant to § 14-09-29(4),
Darrell Van Beek neither asserted the recovery would cause undue financial
hardship nor did he request a finding on that issue. We conclude that once Tami
Van Beek offered evidence to support an award under the statute, the award
became mandatory absent the undue financial hardship exception, and the
burden switched to Darrell Van Beek to establish the exception that the award
would cause undue financial hardship.

                                        VI

[¶51] Tami Van Beek requests attorney’s fees related to this appeal. Tami Van
Beek’s attorney submitted an affidavit and itemized statement stating Tami Van
Beek incurred attorney’s fees of $12,548.50 defending the appeal. See United Bank
of Bismarck v. Young, 

, 519 n.1 (N.D. 1987) (stating “that if more
than a token amount of attorney fees is sought in a request to this court to impose
monetary sanctions under Rule 38, N.D.R.App.P., the request should be
accompanied by an affidavit documenting the work performed on the appeal to
enable us to calculate the amount of reasonable attorney fees to be assessed.”).

[¶52] Section 14-09-29(4), N.D.C.C., provides for the recovery of attorney’s fees
in proceedings where a parent has perpetrated domestic violence and, as we
concluded in the prior section, attorney’s fees were properly awarded by the
district court. We conclude the statute extends to the recovery for the costs and
attorney’s fees incurred in a subsequent appeal.

[¶53] We recently addressed this issue in the application of a similar statute
allowing a prevailing plaintiff to recover costs and attorney’s fees following the
removal of a small claims court action to the district court by the defendant.
Johnson v. Menard, Inc., 

, 

. In Johnson, the
plaintiff argued she was entitled to attorney’s fees for the appeal under N.D.C.C.
§ 27-08.1-04. That statute provides, ‘“If the defendant elects to remove the action
from small claims court to district court, the district court shall award attorney’s
fees to a prevailing plaintiff.” Johnson, ¶ 24 (quoting N.D.C.C. § 27-08.1-04). We
noted that the statute requires the district court to award attorney’s fees when


                                        16
the party becomes a prevailing plaintiff in the district court. Id. ¶ 24. However,
we noted that the statute is silent on whether this includes attorney’s fees when
the action continues to an appeal and it was unclear whether the legislature
intended to include an award of attorney’s fees for an appeal. Id. We resolved
the issue as follows:

              Although the statute is unclear, it would appear inconsistent
       to disallow attorney’s fees for this appeal when the statute grants
       attorney’s fees to a prevailing plaintiff. When discussing a similar
       statute in a previous case we stated, “This Court has decided
       statutory provisions authorizing an award of attorney fees to a
       prevailing party entitle that party to attorney fees in successfully
       defending a judgment on appeal . . . . [T]o disallow attorney’s fees
       for the appeal may dilute or dissipate the party’s recovery.” Rocky
       Mountain Steel Founds., Inc. v. Brockett Co., LLC, 

, 

 (quoting Schwab v. Zajac, 

, 

). As a result, a prevailing plaintiff should be
       awarded reasonable attorney’s fees for the district court proceedings
       and for a successful appeal under N.D.C.C. § 27-08.1-04.

Id. ¶ 25.

[¶54] We conclude N.D.C.C. § 14-09-29(4) provides for a recovery of costs and
attorney’s fees on appeal. However, in his briefing to this Court, Darrell Van
Beek argued an award of attorney’s fees on appeal would cause great financial
hardship. Because this Court does not have a factfinding process to ascertain the
nature of the claimed hardship, we remand the question to the district court for
determination with respect to an award of attorney’s fees and costs with respect
to this appeal.

                                       VII

[¶55] We affirm the judgment except for the inclusion of the potential income of
$198,823 in the marital estate. We reverse and remand for determination, without
further evidentiary proceedings, the appropriate allocation of the existing
marital estate in light of Darrell Van Beek’s decision not to farm the land he had
rented. We also remand for consideration of whether an award of attorney’s fees



                                        17
and costs with respect to this appeal will result in a financial hardship to Darrell
Van Beek and, if appropriate, the amount of any award.

[¶56] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




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