This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In re the Marriage of:


Christine Ann Pomerleau, petitioner,





Jeffrey Scott Pomerleau,



Filed February 21, 2006


Lansing, Judge


Anoka County District Court

File No. FX-02-5288


Jeffrey P. Hicken, Hicken, Scott & Howard, P.A., 300 Anoka Office Center, 2150 Third Avenue, Anoka, MN 55303-2296 (for appellant)


Joseph Kaminsky, 230 Brookdale Corporate Center, 6300 Shingle Creek Parkway, Brooklyn Center, MN 55430 (for respondent)


            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal in a marital-dissolution proceeding, Christine Pomerleau challenges a postjudgment order denying her motion to classify a tax refund as marital property subject to equitable division.  Because the tax refund is the return of an overpayment from a nonmarital business asset belonging to Jeffrey Pomerleau and is not new income generated from the asset, we affirm.


            The district court entered a judgment dissolving the marriage of Christine and Jeffrey Pomerleau in June 2004.  The court based its judgment on a stipulation between Christine and Jeffrey Pomerleau and incorporated the terms of their 1993 antenuptial agreement.  The district court had previously determined that the antenuptial agreement was valid and enforceable. 

The terms of the judgment provided that the Pomerleaus would file joint state and federal income tax returns for the 2003 tax year.  At the time of the stipulation, Jeffrey Pomerleau estimated that any amount owed or refunded would be minimal.  When an accountant prepared their 2003 tax returns, however, the combined refund totaled more than $30,000.

Jeffrey Pomerleau maintained that he was entitled to the refund because the overpayment of the estimated tax liability was funded by draws throughout 2003 from Reynolds & Pomerleau Masonry, Inc., a subchapter S corporation of which he is the sole shareholder.  The Pomerleaus’ antenuptial agreement preserved the corporation as Jeffrey Pomerleau’s nonmarital asset, and the marital-dissolution judgment provided that Christine Pomerleau “shall have no claim to any of the . . . assets or earnings of Reynolds & Pomerleau Masonry, Inc.”  

            Following the entry of judgment, Christine Pomerleau moved the district court for an order equally dividing the 2003 tax refund.  The district court found that the refund was solely attributable to Jeffrey Pomerleau’s overpayments from nonmarital funds and denied the motion.  Christine Pomerleau appeals this determination.


In a marriage-dissolution proceeding, the marital property is subject to a just and equitable division.  Minn. Stat. § 518.58, subd. 1 (2004).  Property acquired by either spouse after the date of the marriage but before the date of the dissolution valuation is presumed to be marital property.  Id. § 518.54, subd. 5 (2004).  A party may overcome this presumption by proving by a preponderance of the evidence that the property is nonmarital.  Id.; Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).  Minnesota law provides that real or personal property acquired by either spouse “before, during, or after the existence of their marriage” is classified as nonmarital property if it is excluded by a valid antenuptial agreement.  Minn. Stat. § 518.54, subd. 5(e).

The district court, relying on the Pomerleaus’ antenuptial agreement, classified the 2003 tax refund as Jeffrey Pomerleau’s nonmarital property.  Whether an asset is marital or nonmarital property is a question of law, which we review de novo.  Gottsacker v. Gottsacker, 664 N.W.2d 848, 852 (Minn. 2003).  On the factual findings underlying the legal determination, we defer to the district court and will reverse only for clear error that leaves us with a definite and firm conviction that a mistake has been made.  Olsen, 562 N.W.2d at 800.

A “refund” is “[t]he return of money to a person who overpaid.”  Black’s Law Dictionary 1307 (8th ed. 2004); see also Minn. Stat. § 290.0679, subd. 1(c) (2004) (defining “refund” as “an individual income tax refund”).  It is undisputed that the source of the overpayment was a series of distributions from Jeffrey Pomerleau’s solely owned subchapter S corporation for the purpose of satisfying his anticipated tax liability.  It is also undisputed that the antenuptial agreement preserved the subchapter S corporation, Reynolds & Pomerleau, as Jeffrey Pomerleau’s nonmarital property and that the relevant terms of the agreement were incorporated into the stipulated dissolution judgment.

The terms of the Pomerleaus’ antenuptial agreement are unambiguous.  In exchange for Jeffrey Pomerleau’s conveyance of an interest in real property, Christine Pomerleau agreed “that she will never at any time claim any right, title or interest in or to any property of any kind or character, which is now owned by Jeffrey Scott Pomerleau, including an increase or appreciation in value thereof, either during his lifetime or upon his death.”  Jeffrey Pomerleau agreed to reciprocal language with respect to Christine Pomerleau’s property.  As part of his current assets, Jeffrey Pomerleau listed “100% of the common stock of Reynolds & Pomerleau Masonry Inc.”

Christine Pomerleau did not appeal from the district court’s determination on the validity and enforceability of the antenuptial agreement.  Similarly, she has not challenged the distribution of the marital property in the marriage-dissolution judgment.  Although the judgment requires the Pomerleaus to cooperate in filing a joint return, it does not provide for distribution of any refund or payment of any remaining liability.

Christine Pomerleau contends that the district court erred by refusing to subject the 2003 tax refund to distribution as new income generated by a nonmarital asset.  We agree that the increase in the value of nonmarital property attributable to the efforts of one or both spouses during the marriage is ordinarily subject to division as marital property.  Nardini v. Nardini, 414 N.W.2d 184, 192 (Minn. 1987).  But this argument overlooks the effect of the antenuptial agreement.  Under Minnesota law, a valid antenuptial agreement may allocate marital as well as nonmarital property between the parties.  McKee-Johnson v. Johnson, 444 N.W.2d 259, 264-65 (Minn. 1989).  “Minnesota has long recognized the validity of antenuptial agreements which altered statutory schemes regulating the disposition of marital property.”  Id. at 265.

            The facts establish that the tax refund, which accumulated during the Pomerleaus' marriage, was a distribution from Jeffrey Pomerleau’s solely owned subchapter S corporation for the specific purpose of meeting the anticipated tax obligation.  The refund is not a product of Jeffrey Pomerleau’s or Christine Pomerleau’s wages.  The distribution and, consequently, the refund are part of Jeffrey Pomerleau’s nonmarital assets in which Christine Pomerleau agreed she would not claim any interest.  Further, Jeffrey Pomerleau represents that, consistent with the purpose of the distribution, the refund was retained to meet the obligation for tax liability in the coming year. 

The district court did not abuse its discretion by denying Christine Pomerleau’s motion for an equitable distribution of the 2003 tax refund.  The record supports the district court’s determination that Jeffrey Pomerleau established by a preponderance of the evidence that the refund was nonmarital property and, therefore, not subject to distribution in the marriage-dissolution proceedings.