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Grinsteiner, Judge.\n\nAFFIRMED IN PART, REVERSED IN PART, AND REMANDED.\n\nOpinion of the Court by McEvers, Justice.\n\nJustin D. Hager, Bismarck, ND, for plaintiff and appellee.\n\nErica J. Shively (argued) and Christopher E. Rausch (appeared), Bismarck,\nND, for defendant and appellant.\n Gerving v. Gerving\n No. 20190253\n\nMcEvers, Justice.\n\n[¶1] Janet Gerving appeals from a judgment granting Ben Gerving a divorce\nand distributing their marital property. Janet Gerving argues the district\ncourt's property distribution is clearly erroneous because it is not equitable and\nthe court did not adequately explain the substantial disparity. We affirm in\npart, reverse in part, and remand.\n\n I\n\n[¶2] Ben and Janet Gerving were married in 2004 and have two minor\nchildren together. In November 2017, Ben Gerving sued for divorce.\n\n[¶3] In January 2019, the parties filed a partial settlement agreement. The\nparties agreed Ben Gerving would have primary residential responsibility for\nthe children and Janet Gerving would have parenting time. They agreed to a\nparenting time schedule, decision making responsibility, and to reserve the\nissue of child support. The district court adopted the parties' partial settlement\nagreement and entered a partial judgment incorporating the terms of the\nagreement.\n\n[¶4] In May 2019, a bench trial was held on the remaining issues, including\ndistribution of the marital estate and spousal support. The district court found\nthe length of the marriage would support an equal property division, but other\nfactors had to be weighed, including that Ben Gerving acquired the real\nproperty and farm prior to the marriage, that he lived and worked on the farm\nhis entire life, and that he did most of the work on the farm. The court\nconcluded Ben Gerving should be awarded the family farm, homestead,\nequipment, animals, and the accompanying debt. The court ordered Ben\nGerving was required to split the net proceeds of any future sale of the land\nwith Janet Gerving. The court ordered Ben Gerving to pay Janet Gerving\n$6,000 per year until Janet Gerving is 65 years old to offset the award of the\nfarming operation, and awarded each party their separate retirement and\nbank accounts. The court ordered neither party would be awarded spousal\n\n 1\n support and each party was responsible for their own attorney's fees. The court\nalso ordered Janet Gerving to pay $507 per month in child support. Judgment\nwas entered.\n\n II\n\n[¶5] Janet Gerving argues the district court's property distribution is clearly\nerroneous because it is not equitable and the evidence does not support the\ncourt's findings.\n\n[¶6] The district court's property distribution will not be reversed on appeal\nunless the court's findings are clearly erroneous. Brew v. Brew, 2017 ND 242,\n¶ 13, 903 N.W.2d 72. A finding of fact is clearly erroneous if it is induced by\nan erroneous view of the law, there is no evidence to support it, or if after\nviewing all of the evidence, we are left with a definite and firm conviction a\nmistake has been made. Id.\n\n[¶7] When a divorce is granted, the district court is required to make an\nequitable distribution of the parties' property and debts. N.D.C.C. § 14-05-\n24(1). The court must start with the presumption that all property held by\neither party, jointly or individually, is considered marital property. Lee v. Lee,\n2019 ND 142, ¶ 12, 927 N.W.2d 104. All property held by either party must be\nincluded in the marital estate. Lessard v. Johnson, 2019 ND 301, ¶ 21, 936\nN.W.2d 528. The court must determine the value of the entire marital estate\nand then apply the Ruff-Fischer guidelines to make an equitable distribution.\nAllmon v. Allmon, 2017 ND 122, ¶ 7, 894 N.W.2d 869; Lessard, at ¶ 21. The\nRuff-Fischer guidelines include:\n\n The respective ages of the parties, their earning ability, the\n duration of the marriage and conduct of the parties during the\n marriage, their station in life, the circumstances and necessities of\n each, their health and physical condition, their financial\n circumstances as shown by the property owned at the time, its\n value at the time, its income-producing capacity, if any, whether\n accumulated before or after the marriage, and such other matters\n as may be material.\n\n 2\n Lessard, at ¶ 21 (quoting Tuhy v. Tuhy, 2018 ND 53, ¶ 10, 907 N.W.2d 351).\nThe court is not required to make findings about each Ruff-Fischer factor, but\nit must explain the rationale for its decision. Wagner v. Wagner, 2007 ND 101,\n¶ 10, 733 N.W.2d 593. The court's property distribution does not need to be\nequal to be equitable, but the court must explain a substantial disparity.\nLessard, at ¶ 21.\n\n[¶8] \"North Dakota law does not mandate a set formula or method to\ndetermine how marital property is to be divided; rather, the division is based\non the particular circumstances of each case.\" Wagner, 2007 ND 101, ¶ 11, 733\nN.W.2d 593 (quoting Holden v. Holden, 2007 ND 29, ¶ 10, 728 N.W.2d 312). A\nlong-term marriage generally supports an equal property division. Lessard,\n2019 ND 301, ¶ 21, 936 N.W.2d 528. \"While the origin of property must be\nconsidered, there is no requirement to set property aside for a spouse who\nbrings property into a marriage.\" Lee, 2019 ND 142, ¶ 12, 927 N.W.2d 104.\nWe have recognized liquidation of an ongoing farming operation is generally a\nlast resort, and the distribution of farm assets to one spouse with an offsetting\nmonetary award to the other spouse may be upheld. Wagner, at ¶ 11.\n\n[¶9] The district court adopted the parties' final Rule 8.3 property and debt\nlisting as a full list of the parties' assets and debts and found the parties have\n$1,850,000 in assets, $264,000 in debts, with a net marital estate worth\n$1,586,000. The court made findings about the Ruff-Fischer factors to divide\nthe martial estate. The court found both parties are 49 years old and have a\nhigh school education, and neither party has any physical limitations that\nwould hinder their ability to earn a living. The court found the parties own\nand operate a farm and Ben Gerving inherited the farming operation and real\nproperty prior to the marriage. The court found the parties have cattle and\nsmaller animals and crop and pastureland, and both parties worked together\non the farm but Janet Gerving did less work in the last few years. The court\nfound the farm supported the family early in the marriage, but Ben Gerving\nwas ill in 2007 and was unable to work, the illness caused the parties to sell\ntheir milk cows in 2007 and begin renting out some or most of the land, Ben\nGerving began working off the farm after his health recovered, and Janet\nGerving began working off the farm in 2008. The court found the parties\n\n 3\n currently rent out the land, work some cattle, and plant crops or hay for animal\nfeed, but the farming operation is operating at a loss according to the tax\nreturns. The court found the parties' high net worth was mostly due to the\nland value, the parties are cash poor and live paycheck to paycheck, the parties\nrent out three parcels of land and use the rent to make the spring loan\npayment, and the parties use the proceeds from the cattle sales to make the\nfall loan payment. The court found both parties testified they do not want to\nsell the farm and would like to pass it on to their children, and Ben Gerving\ntestified he wanted to continue farming. The court found the parties will have\na similar station in life post-divorce because their current employment income\nis similar and neither party has any unusual circumstances or necessities.\n\n[¶10] The district court found the length of the marriage supported an equal\ndivision, but other factors had to be considered, including that Ben Gerving\nacquired the land prior to the marriage, he lived and worked on the farm his\nentire life, and he did most of the work on the farm. The court found Janet\nGerving's contribution to the farm did not grow or expand the farming\noperation. The court awarded Ben Gerving most of the parties' property,\nincluding all of the real property, the farm equipment and animals, the\naccompanying debt, and some vehicles. The court explained:\n\n According to the testimony and evidence this appears to be the only\n way the family farm will survive. Any division would likely be the\n final straw. In addition, it was the wish of the parties that the\n property not be sold if possible and for it [to] pass to the children.\n Based on its current income producing capabilities, this award\n only becomes a windfall if the farmland is sold. As a protection\n against such, should any of the land need to be sold or if Ben elects\n to sell any of the land, all net proceeds from the sale would then be\n split equally with Janet. The small income producing capabilities,\n animals, and equipment of the farm will be offset with a yearly\n payment to Janet by Ben. Should the sale of land become\n necessary the yearly payment can be revisited and adjusted\n accordingly.\n\nThe court ordered Ben Gerving pay Janet Gerving $6,000 per year until her\n65th birthday to offset the award of the farming operation, and the court\n\n 4\n retained jurisdiction of the payment to allow the payment to be revisited if Ben\nGerving sells any of the land. The court explained:\n\n This yearly payment, which effectively offsets Janet's child\n support obligation, along with the unequal award of retirement\n accounts serves as the equitable division of the potential farming\n proceeds. Janet is receiving $96,000 in payments over the next\n sixteen (16) years and approximately $67,500 more in retirement,\n amounting to an award of $163,500 to offset the farming operation\n award to Ben.\n\nEach party was awarded their personal possessions, retirement accounts, and\nindividual credit card debt.\n\n[¶11] This was a long-term marriage, which produced two children, and there\nwas evidence both parties contributed to the marriage and the farming\noperation. Evidence established both parties have full time jobs off the farm\nand both parties have worked on and contributed to the farming operation.\nEvidence established Ben Gerving has worked for the county full time since\n2007 and his gross monthly income from the job is approximately $3,794.\nEvidence established Janet Gerving worked full time outside the home as a\nCNA, her gross monthly income is $2,862, and her employment provided\nhealth insurance for the family. Ben Gerving testified Janet Gerving did some\nwork on the farm including the bookkeeping, milking the cows until 2007 when\nthey got rid of the milk cows, feeding and helping with the small animals, and\noccasionally feeding the large animals. Both parties testified it was Janet\nGerving's job to take care of the small animals on a daily basis. Ben Gerving\ntestified he was sick and hospitalized for four months in 2007, he was unable\nto work during that time, and Janet Gerving managed the farm and cared for\nthe animals while he was sick. Janet Gerving testified she did the day-to-day\nchores around the farm while Ben Gerving was sick. The court found Ben\nGerving acquired the land before the marriage. However, Janet Gerving also\ncontributed to the property. She testified that they put a new house on the\nproperty in 2006 and they both paid for the house.\n\n[¶12] Janet Gerving received a net property award of approximately $163,500\nand Ben Gerving received the remainder of the property and debt, for a net\n\n 5\n award of approximately $1,422,500. Ben Gerving was awarded approximately\nninety percent of the marital estate, including all of the parties' real property\nand all of the assets related to the farming operation. Although this Court has\nrecognized the importance of preserving the viability of a family farming\noperation, we have said it should not result in a windfall for one spouse.\nLinrud v. Linrud, 552 N.W.2d 342, 346 (N.D. 1996). The district court\nreasoned its distribution would only become a windfall if the real property was\nsold, and to ensure that does not occur the court ordered Ben Gerving to split\nall net proceeds from any future sale of the property equally with Janet\nGerving and the yearly payment could be adjusted if a land sale became\nnecessary. However, the court cannot retain jurisdiction to modify a final\nproperty distribution. See Jacobs-Raak v. Raak, 2020 ND 107, ¶ 10; Keita v.\nKeita, 2012 ND 234, ¶ 28, 823 N.W.2d 726. The court erred by attempting to\nretain jurisdiction to ensure the distribution remained equitable.\n\n[¶13] Evidence exists in the record that both parties contributed to the farming\noperation. Janet Gerving contributed to the farm and family by working full\ntime off the farm, providing medical insurance, and by working on the farm.\nBen Gerving was awarded ninety percent of the parties' assets, including all of\nthe real property and any assets related to the farming operation. We conclude\nthe property distribution is not equitable.\n\n[¶14] This Court has previously reversed similar property distributions. In\nWagner v. Wagner, 2007 ND 101, ¶¶ 1, 7, 733 N.W.2d 593, this Court reversed\na property distribution in which the net marital estate was worth $332,500,\nthe wife received a property award of $12,000 and spousal support of $200 per\nmonth for two years, and the husband received the remainder of the marital\nassets and all marital debts. The district court explained its distribution by\nfinding the wife was \"entitled to little of the assets\" because she contributed\nlittle to the accumulation of the assets. Id. at ¶ 15. This Court acknowledged\nthe district court was attempting to preserve farm property, but concluded:\n\n Although we have generally said that liquidation of an\n ongoing farming operation is a last resort in dividing marital\n assets, we are not confronted here with an ongoing farming\n operation, but instead the primary use of the land is as rental\n\n 6\n property. Here, the district court was laboring to maintain the\n farm assets intact despite the lack of an ongoing farming operation\n and, in effect, was removing the property from consideration of an\n equitable distribution.\n\nId. at ¶ 16. This Court concluded the district court erred in limiting the\nproperty distribution to the wife based on the husband's limited income and by\nfailing to consider liquidation of the farm assets. Id. at ¶ 17.\n\n[¶15] Similarly, in this case it is clear the district court was attempting to\nkeep the farming operation viable and respect the parties' desire to keep the\nreal property available for the parties' children, but there are other ways it can\nbe accomplished with an equitable distribution and without limiting the\ndistribution to Janet Gerving based on what Ben Gerving can afford to pay.\nMost of the parties' land is being used as rental property. Evidence established\nthe farm is made up of four parcels of land, Ben Gerving testified that he uses\nthe land to plant grain and make hay for the animals, that he rents out\ncropland in three of the parcels, and that the rent is used to pay on the loan\nfrom the bank. Ben Gerving testified he would not have any problem with\nwhatever the court does with the land, including giving some to Janet Gerving,\nas long as it is saved for their children. He testified there was one parcel of\nland he could do without and keep the farm operational. Janet Gerving\ntestified she did not have any plans to sell the land if it was awarded to her.\nShe also testified that she understood that she may receive some of the debt if\nshe is awarded some of the land, she would rent the land out, and she was\nwilling to rent it to Ben Gerving if he needed it for the farming operation.\n\n[¶16] On this record, we are left with a definite and firm conviction a mistake\nhas been made, and we conclude the district court's property distribution is\nclearly erroneous. We reverse and remand for the court to make an equitable\nproperty division.\n\n III\n\n[¶17] Janet Gerving argues the district court erred by failing to find Ben\nGerving committed economic misconduct. She alleges Ben Gerving sold cattle\n\n 7\n under his sisters' names and the sisters returned the money from the sales to\nhim which allowed him to hide the income.\n\n[¶18] \"Economic misconduct is misconduct that results in a wasted asset or in\nthe reduction of the net marital estate.\" Weigel v. Weigel, 2015 ND 270, ¶ 22,\n871 N.W.2d 810 (quoting Hoverson v. Hoverson, 2001 ND 124, ¶ 24, 629 N.W.2d\n573). Economic fault or financial misconduct are factors that may be\nconsidered in distributing marital property. Id. A court's findings about\neconomic fault are findings of fact, subject to the clearly erroneous standard of\nreview. Conzemius v. Conzemius, 2014 ND 5, ¶ 22, 841 N.W.2d 716.\n\n[¶19] The district court found Ben Gerving acknowledged selling cattle under\nother people's names, he explained he owed his sister money for her help with\nexpenses or for equipment she purchased for the farm, he gave his sister the\ncattle in exchange for her help, and he admitted that some of the proceeds were\ngiven back to him but they were used for farm expenses. The court found Ben\nGerving testified Janet Gerving was aware this was how they operated and she\ndid not have a problem with it when she was living on the farm. The court\nfound:\n\n During Janet's testimony she acknowledged handling the\n books and taxes for the farm the years she lived there. She\n questioned some of the sales of cattle/calves, especially since the\n separation, but seemed to stop short of accusing Ben of hiding\n cattle sale proceeds. It would appear from the testimony and\n evidence that Ben is struggling with handling the finances and bill\n paying since the separation. While there are questions about some\n of the finances, the Court doesn't find any evidence of intentional\n misconduct; instead the questions seemed to be caused more from\n lack of records and lack of money management skills rather than\n misconduct.\n\n[¶20] Ben Gerving testified he gave some cattle to his sister because he\nborrowed money from her to pay the land taxes, they used the same practice\nin the past, and it did not bother Janet Gerving. There was evidence Ben\nGerving used the proceeds he received from selling cattle in other people's\nnames to pay bills and other farm expenses. Evidence supports the court's\n\n 8\n findings. The court's finding that there was no evidence of economic\nmisconduct is not clearly erroneous.\n\n IV\n\n[¶21] We affirm the judgment in part, reverse in part, and remand.\n\n[¶22] Lisa Fair McEvers\n Gerald W. VandeWalle\n Jerod E. Tufte\n Daniel J. Crothers\n Jon J. Jensen, C.J.\n\n 9", "publication_date": "2020-06-02", "publication_status": "public", "record_id": "rec:v1:b0617921-b518-76be-88e4-7d0e42f1c444", "schema_version": "1.0.0-draft.1", "source_locators": [ { "artifact_id": "art:v1:420d398a-acef-7629-8415-225abbe27749", "locator": "full-text", "quote_sha256": "0705b0bd675452236d97025a95fb879fc433a3ede4a97e9085b37659b57cff2f" } ], "status": "current", "structure_sha256": "0705b0bd675452236d97025a95fb879fc433a3ede4a97e9085b37659b57cff2f", "text_scope": { "excludes": [ "footer", "navigation", "annotations", "headnotes", "summaries", "editorial_content" ], "includes": [ "opinion_body" ] }, "version_id": "ver:v1:440a94d9-9755-752d-8074-dd54ad591f95" } }