Filed 6/2/20 by Clerk of Supreme Court 

IN THE SUPREME COURT 

STATE OF NORTH DAKOTA 

2020 ND 116 

Ben Gerving, Plaintiff and Appellee 

 v. 

Janet Gerving, Defendant and Appellant 

 and 

State of North Dakota, Statutory Real Party in Interest 

No. 20190253 

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

District, the Honorable John W. Grinsteiner, Judge. 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

Opinion of the Court by McEvers, Justice. 

Justin D. Hager, Bismarck, ND, for plaintiff and appellee. 

Erica J. Shively (argued) and Christopher E. Rausch (appeared), Bismarck, 

ND, for defendant and appellant. 
1 

Gerving v. Gerving 

No. 20190253 

McEvers, Justice. 

[¶1] Janet Gerving appeals from a judgment granting Ben Gerving a divorce 

and distributing their marital property. Janet Gerving argues the district 

court’s property distribution is clearly erroneous because it is not equitable and 

the court did not adequately explain the substantial disparity. We affirm in 

part, reverse in part, and remand. 

I 

[¶2] Ben and Janet Gerving were married in 2004 and have two minor 

children together. In November 2017, Ben Gerving sued for divorce. 

[¶3] In January 2019, the parties filed a partial settlement agreement. The 

parties agreed Ben Gerving would have primary residential responsibility for 

the children and Janet Gerving would have parenting time. They agreed to a 

parenting time schedule, decision making responsibility, and to reserve the 

issue of child support. The district court adopted the parties’ partial settlement 

agreement and entered a partial judgment incorporating the terms of the 

agreement. 

[¶4] In May 2019, a bench trial was held on the remaining issues, including 

distribution of the marital estate and spousal support. The district court found 

the length of the marriage would support an equal property division, but other 

factors had to be weighed, including that Ben Gerving acquired the real 

property and farm prior to the marriage, that he lived and worked on the farm 

his entire life, and that he did most of the work on the farm. The court 

concluded Ben Gerving should be awarded the family farm, homestead, 

equipment, animals, and the accompanying debt. The court ordered Ben 

Gerving was required to split the net proceeds of any future sale of the land 

with Janet Gerving. The court ordered Ben Gerving to pay Janet Gerving 

$6,000 per year until Janet Gerving is 65 years old to offset the award of the 

farming operation, and awarded each party their separate retirement and 

bank accounts. The court ordered neither party would be awarded spousal 
2 

support and each party was responsible for their own attorney’s fees. The court 

also ordered Janet Gerving to pay $507 per month in child support. Judgment 

was entered. 

II 

[¶5] Janet Gerving argues the district court’s property distribution is clearly 

erroneous because it is not equitable and the evidence does not support the 

court’s findings. 

[¶6] The district court’s property distribution will not be reversed on appeal 

unless the court’s findings are clearly erroneous. Brew v. Brew, 2017 ND 242, 

¶ 13, 903 N.W.2d 72. A finding of fact is clearly erroneous if it is induced by 

an erroneous view of the law, there is no evidence to support it, or if after 

viewing all of the evidence, we are left with a definite and firm conviction a 

mistake has been made. Id.

[¶7] When a divorce is granted, the district court is required to make an 

equitable distribution of the parties’ property and debts. N.D.C.C. § 14-05-

24(1). The court must start with the presumption that all property held by 

either party, jointly or individually, is considered marital property. Lee v. Lee, 

2019 ND 142, ¶ 12, 927 N.W.2d 104. All property held by either party must be 

included in the marital estate. Lessard v. Johnson, 2019 ND 301, ¶ 21, 936 

N.W.2d 528. The court must determine the value of the entire marital estate 

and then apply the Ruff-Fischer guidelines to make an equitable distribution. 

Allmon v. Allmon, 2017 ND 122, ¶ 7, 894 N.W.2d 869; Lessard, at ¶ 21. The 

Ruff-Fischer guidelines include: 

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 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. 
3 

Lessard, at ¶ 21 (quoting Tuhy v. Tuhy, 2018 ND 53, ¶ 10, 907 N.W.2d 351). 

The court is not required to make findings about each Ruff-Fischer factor, but 

it must explain the rationale for its decision. Wagner v. Wagner, 2007 ND 101, 

¶ 10, 733 N.W.2d 593. The court’s property distribution does not need to be 

equal to be equitable, but the court must explain a substantial disparity. 

Lessard, at ¶ 21. 

[¶8] “North Dakota law does not mandate a set formula or method to 

determine how marital property is to be divided; rather, the division is based 

on the particular circumstances of each case.” Wagner, 2007 ND 101, ¶ 11, 733 

N.W.2d 593 (quoting Holden v. Holden, 2007 ND 29, ¶ 10, 728 N.W.2d 312). A 

long-term marriage generally supports an equal property division. Lessard, 

2019 ND 301, ¶ 21, 936 N.W.2d 528. “While the origin of property must be 

considered, there is no requirement to set property aside for a spouse who 

brings property into a marriage.” Lee, 2019 ND 142, ¶ 12, 927 N.W.2d 104. 

We have recognized liquidation of an ongoing farming operation is generally a 

last resort, and the distribution of farm assets to one spouse with an offsetting 

monetary award to the other spouse may be upheld. Wagner, at ¶ 11. 

[¶9] The district court adopted the parties’ final Rule 8.3 property and debt 

listing as a full list of the parties’ assets and debts and found the parties have 

$1,850,000 in assets, $264,000 in debts, with a net marital estate worth 

$1,586,000. The court made findings about the Ruff-Fischer factors to divide 

the martial estate. The court found both parties are 49 years old and have a 

high school education, and neither party has any physical limitations that 

would hinder their ability to earn a living. The court found the parties own 

and operate a farm and Ben Gerving inherited the farming operation and real 

property prior to the marriage. The court found the parties have cattle and 

smaller animals and crop and pastureland, and both parties worked together 

on the farm but Janet Gerving did less work in the last few years. The court 

found the farm supported the family early in the marriage, but Ben Gerving 

was ill in 2007 and was unable to work, the illness caused the parties to sell 

their milk cows in 2007 and begin renting out some or most of the land, Ben 

Gerving began working off the farm after his health recovered, and Janet 

Gerving began working off the farm in 2008. The court found the parties 
4 

currently rent out the land, work some cattle, and plant crops or hay for animal 

feed, but the farming operation is operating at a loss according to the tax 

returns. The court found the parties’ high net worth was mostly due to the 

land value, the parties are cash poor and live paycheck to paycheck, the parties 

rent out three parcels of land and use the rent to make the spring loan 

payment, and the parties use the proceeds from the cattle sales to make the 

fall loan payment. The court found both parties testified they do not want to 

sell the farm and would like to pass it on to their children, and Ben Gerving 

testified he wanted to continue farming. The court found the parties will have 

a similar station in life post-divorce because their current employment income 

is similar and neither party has any unusual circumstances or necessities. 

[¶10] The district court found the length of the marriage supported an equal 

division, but other factors had to be considered, including that Ben Gerving 

acquired the land prior to the marriage, he lived and worked on the farm his 

entire life, and he did most of the work on the farm. The court found Janet 

Gerving’s contribution to the farm did not grow or expand the farming 

operation. The court awarded Ben Gerving most of the parties’ property, 

including all of the real property, the farm equipment and animals, the 

accompanying debt, and some vehicles. The court explained: 

According to the testimony and evidence this appears to be the only 

way the family farm will survive. Any division would likely be the 

final straw. In addition, it was the wish of the parties that the 

property not be sold if possible and for it [to] pass to the children. 

Based on its current income producing capabilities, this award 

only becomes a windfall if the farmland is sold. As a protection 

against such, should any of the land need to be sold or if Ben elects 

to sell any of the land, all net proceeds from the sale would then be 

split equally with Janet. The small income producing capabilities, 

animals, and equipment of the farm will be offset with a yearly 

payment to Janet by Ben. Should the sale of land become 

necessary the yearly payment can be revisited and adjusted 

accordingly. 

The court ordered Ben Gerving pay Janet Gerving $6,000 per year until her 

65th birthday to offset the award of the farming operation, and the court 
5 

retained jurisdiction of the payment to allow the payment to be revisited if Ben 

Gerving sells any of the land. The court explained: 

This yearly payment, which effectively offsets Janet’s child 

support obligation, along with the unequal award of retirement 

accounts serves as the equitable division of the potential farming 

proceeds. Janet is receiving $96,000 in payments over the next 

sixteen (16) years and approximately $67,500 more in retirement, 

amounting to an award of $163,500 to offset the farming operation 

award to Ben. 

Each party was awarded their personal possessions, retirement accounts, and 

individual credit card debt. 

[¶11] This was a long-term marriage, which produced two children, and there 

was evidence both parties contributed to the marriage and the farming 

operation. Evidence established both parties have full time jobs off the farm 

and both parties have worked on and contributed to the farming operation. 

Evidence established Ben Gerving has worked for the county full time since 

2007 and his gross monthly income from the job is approximately $3,794. 

Evidence established Janet Gerving worked full time outside the home as a 

CNA, her gross monthly income is $2,862, and her employment provided 

health insurance for the family. Ben Gerving testified Janet Gerving did some 

work on the farm including the bookkeeping, milking the cows until 2007 when 

they got rid of the milk cows, feeding and helping with the small animals, and 

occasionally feeding the large animals. Both parties testified it was Janet 

Gerving’s job to take care of the small animals on a daily basis. Ben Gerving 

testified he was sick and hospitalized for four months in 2007, he was unable 

to work during that time, and Janet Gerving managed the farm and cared for 

the animals while he was sick. Janet Gerving testified she did the day-to-day 

chores around the farm while Ben Gerving was sick. The court found Ben 

Gerving acquired the land before the marriage. However, Janet Gerving also 

contributed to the property. She testified that they put a new house on the 

property in 2006 and they both paid for the house. 

[¶12] Janet Gerving received a net property award of approximately $163,500 

and Ben Gerving received the remainder of the property and debt, for a net 
6 

award of approximately $1,422,500. Ben Gerving was awarded approximately 

ninety percent of the marital estate, including all of the parties’ real property 

and all of the assets related to the farming operation. Although this Court has 

recognized the importance of preserving the viability of a family farming 

operation, we have said it should not result in a windfall for one spouse. 

Linrud v. Linrud, 552 N.W.2d 342, 346 (N.D. 1996). The district court 

reasoned its distribution would only become a windfall if the real property was 

sold, and to ensure that does not occur the court ordered Ben Gerving to split 

all net proceeds from any future sale of the property equally with Janet 

Gerving and the yearly payment could be adjusted if a land sale became 

necessary. However, the court cannot retain jurisdiction to modify a final 

property distribution. See Jacobs-Raak v. Raak, 2020 ND 107, ¶ 10; Keita v. 

Keita, 2012 ND 234, ¶ 28, 823 N.W.2d 726. The court erred by attempting to 

retain jurisdiction to ensure the distribution remained equitable. 

[¶13] Evidence exists in the record that both parties contributed to the farming 

operation. Janet Gerving contributed to the farm and family by working full 

time off the farm, providing medical insurance, and by working on the farm. 

Ben Gerving was awarded ninety percent of the parties’ assets, including all of 

the real property and any assets related to the farming operation. We conclude 

the property distribution is not equitable. 

[¶14] This Court has previously reversed similar property distributions. In 

Wagner v. Wagner, 2007 ND 101, ¶¶ 1, 7, 733 N.W.2d 593, this Court reversed 

a property distribution in which the net marital estate was worth $332,500, 

the wife received a property award of $12,000 and spousal support of $200 per 

month for two years, and the husband received the remainder of the marital 

assets and all marital debts. The district court explained its distribution by 

finding the wife was “entitled to little of the assets” because she contributed 

little to the accumulation of the assets. Id. at ¶ 15. This Court acknowledged 

the district court was attempting to preserve farm property, but concluded: 

Although we have generally said that liquidation of an 

ongoing farming operation is a last resort in dividing marital 

assets, we are not confronted here with an ongoing farming 

operation, but instead the primary use of the land is as rental 
7 

property. Here, the district court was laboring to maintain the 

farm assets intact despite the lack of an ongoing farming operation 

and, in effect, was removing the property from consideration of an 

equitable distribution. 

Id. at ¶ 16. This Court concluded the district court erred in limiting the 

property distribution to the wife based on the husband’s limited income and by 

failing to consider liquidation of the farm assets. Id. at ¶ 17. 

[¶15] Similarly, in this case it is clear the district court was attempting to 

keep the farming operation viable and respect the parties’ desire to keep the 

real property available for the parties’ children, but there are other ways it can 

be accomplished with an equitable distribution and without limiting the 

distribution to Janet Gerving based on what Ben Gerving can afford to pay. 

Most of the parties’ land is being used as rental property. Evidence established 

the farm is made up of four parcels of land, Ben Gerving testified that he uses 

the land to plant grain and make hay for the animals, that he rents out 

cropland in three of the parcels, and that the rent is used to pay on the loan 

from the bank. Ben Gerving testified he would not have any problem with 

whatever the court does with the land, including giving some to Janet Gerving, 

as long as it is saved for their children. He testified there was one parcel of 

land he could do without and keep the farm operational. Janet Gerving 

testified she did not have any plans to sell the land if it was awarded to her. 

She also testified that she understood that she may receive some of the debt if 

she is awarded some of the land, she would rent the land out, and she was 

willing to rent it to Ben Gerving if he needed it for the farming operation. 

[¶16] On this record, we are left with a definite and firm conviction a mistake 

has been made, and we conclude the district court’s property distribution is 

clearly erroneous. We reverse and remand for the court to make an equitable 

property division. 

III 

[¶17] Janet Gerving argues the district court erred by failing to find Ben 

Gerving committed economic misconduct. She alleges Ben Gerving sold cattle 
8 

under his sisters’ names and the sisters returned the money from the sales to 

him which allowed him to hide the income. 

[¶18] “Economic misconduct is misconduct that results in a wasted asset or in 

the reduction of the net marital estate.” Weigel v. Weigel, 2015 ND 270, ¶ 22, 

871 N.W.2d 810 (quoting Hoverson v. Hoverson, 2001 ND 124, ¶ 24, 629 N.W.2d 

573). Economic fault or financial misconduct are factors that may be 

considered in distributing marital property. Id. A court’s findings about 

economic fault are findings of fact, subject to the clearly erroneous standard of 

review. Conzemius v. Conzemius, 2014 ND 5, ¶ 22, 841 N.W.2d 716. 

[¶19] The district court found Ben Gerving acknowledged selling cattle under 

other people’s names, he explained he owed his sister money for her help with 

expenses or for equipment she purchased for the farm, he gave his sister the 

cattle in exchange for her help, and he admitted that some of the proceeds were 

given back to him but they were used for farm expenses. The court found Ben 

Gerving testified Janet Gerving was aware this was how they operated and she 

did not have a problem with it when she was living on the farm. The court 

found: 

During Janet’s testimony she acknowledged handling the 

books and taxes for the farm the years she lived there. She 

questioned some of the sales of cattle/calves, especially since the 

separation, but seemed to stop short of accusing Ben of hiding 

cattle sale proceeds. It would appear from the testimony and 

evidence that Ben is struggling with handling the finances and bill 

paying since the separation. While there are questions about some 

of the finances, the Court doesn’t find any evidence of intentional 

misconduct; instead the questions seemed to be caused more from 

lack of records and lack of money management skills rather than 

misconduct. 

[¶20] Ben Gerving testified he gave some cattle to his sister because he 

borrowed money from her to pay the land taxes, they used the same practice 

in the past, and it did not bother Janet Gerving. There was evidence Ben 

Gerving used the proceeds he received from selling cattle in other people’s 

names to pay bills and other farm expenses. Evidence supports the court’s 
9 

findings. The court’s finding that there was no evidence of economic 

misconduct is not clearly erroneous. 

IV 

[¶21] We affirm the judgment in part, reverse in part, and remand. 

[¶22] Lisa Fair McEvers 

Gerald W. VandeWalle 

Jerod E. Tufte 

Daniel J. Crothers 

Jon J. Jensen, C.J.