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, Stat utory Real Party in Interest

No. 20190253

Appeal from the District Court of Oliver County, South Central Judicial District, the Honorable Jo hn 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 Christoph er E. Rausch (appeared), Bismarck, ND, for defendant and appellant.1 Gerving v. Gerving No. 20190253
McEvers, Justice.
[¶1] Janet Gerving appeals from a judgme nt 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 adeq uately 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 20 17, 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 responsib ility, and to reserve the issue of child support. The district cour t adopted the parties’ partial settlement agreement and entered a partial judgme nt 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 sp ousal support. The district court found the length of the marriage would support an equal property division, but other factors had to be weighe d, including that Ben Gerving acquired the real property and farm prior to the marriage, that he lived and wo rked on the farm his entire life, and that he did most of the work on the farm. The court concluded Ben Gerving should be aw arded the family farm, homestead, equipment, animals, and the accompan ying debt. The court ordered Ben Gerving was required to split the net proceeds of any future sale of the land with Janet Gerving. Th e court ordered Ben Gervin g 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 ne ither party would be awarded spousal2 support and each party was responsible fo r 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 di strict 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 distribut ion 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 suppo rt it, or if after viewing all of the evidence, we are left with a definite and firm conviction a mistake has b een made. Id.
[¶7] When a divorce is granted, the distr ict court is requir ed to make an equitable distribution of th e parties’ property and debts. N.D.C.C. § 14-05- 24(1). The court must start with the pr esumption that all property held by either party, jointly orindividually, is consid ered marital property. Lee v. Lee , 2019 ND 142, ¶ 12, 92 7 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 th e 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 part ies, their earnin g ability, the duration of the marriage and co nduct of the parties during the marriage, their station in life, th e circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the pr operty owned at the time, its value at the time, its income-producing capaci ty, 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 ration ale for its decision. Wagner v. Wagner , 2007 ND 101, ¶ 10, 733 N.W.2d 593. The court’s prop erty 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 fo rmula or method to determine how marital propertyis to be divided; rath er, the division is based on the particular circumsta nces 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 suppor ts an equal property division. Lessard , 2019 ND 301, ¶ 21, 936 N.W. 2d 528. “While the orig in of property must be considered, there is no requirement to set property asid e 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 on going farming operation is generally a last resort, and the distribut ion of farm assets to one spouse with an offsetting monetary award to the othe r 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’ asse ts and debts and found the parties have $1,850,000 in assets, $264,000 in deb ts, with a net mari tal estate worth $1,586,000. The court ma de 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 pa rty has any physical limitations that would hinder their ability to earn a living. The co urt found the parties own and operate a farm and Be n Gerving inherited the fa rming operation and real property prior to the marriage. The court found the part ies have cattle and smaller animals and crop and pastureland , and both parties worked together on the farm but Janet Gerving did less wo rk 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 unabl e to work, the illness caus ed the parties to sell their milk cows in 2007 and begin rent ing out some or most of the land, Ben Gerving began working off the farm af ter his health recovered, and Janet Gerving began working off the farm in 2008. The court found the parties4 currently rent out the land, work some cattle, and plan t crops or hay for animal feed, but the farming oper ation 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 an d live paycheck to paycheck, the parties rent out three parcels of land and us e the rent to make the spring loan payment, and the parties us e the proceeds from the cattle sales to make the fall loan payment. The cour t found both partie s 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 cont inue farming. The court found the parties will have a similar station in life po st-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 mo st 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 aw arded Ben Gerving most of the parties’ property, including all of the real property, the farm equipment and animals, the accompanying debt, and some ve hicles. The court explained:
According to the te stimony 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 prod ucing 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 proc eeds from the sale would then be split equally with Janet. The sm all income produc ing 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 revisite d and adjusted accordingly. The court ordered Ben Gerving pay Jane t Gerving $6,000 per year until her 65th birthday to offset the award of the farming operation, and the court5 retained jurisdiction of the payment to allow the payment to be revisited if Ben Gerving sells any of the la nd. The court explained:
This yearly payment, which ef fectively offsets Janet’s child support obligation, along with th e unequal award of retirement accounts serves as the equitable division of the potential farming proceeds. Janet is receiving $9 6,000 in payments over the next sixteen (16) years and approximat ely $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, retireme nt accounts, and individual credit card debt.
[¶11] This was a long-term marriage, whic h produced two children, and there was evidence both partie s contributed to the ma rriage and the farming operation. Evidence established both pa rties 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 Jane t 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 fa mily. Ben Gerving testifiedJanet Gerving did some work on the farm including the bookkeep ing, milking the cows until 2007 when they got rid of the milk cows, feeding and helping with the small animals, and occasionally feeding the la rge animals. Both partie s 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 si ck. Janet Gerving testified she did the day-to-day chores around the farm while Ben Ge rving was sick. The court found Ben Gerving acquired the land before the marriage. However, Janet Gerving also contributed to the property . She testified that theyput a new house on the property in 2006 and they both paid for the house.
[¶12] Janet Gerving received a net proper ty award of approximately $163,500 and Ben Gerving received the remainder of the property and debt, for a net6 award of approximately $1,422,500. Ben Gerving was awarded approximately ninety percent of the marita l estate, including all of the parties’ real property and all of the assets related to the farm ing operation. Although this Court has recognized the importance of preserving th e 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 beco me 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 prop erty equally with Janet Gerving and the yearly pa yment could be adjusted if a land sale became necessary. However, the court cannot re tain 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 distributio n remained equitable.
[¶13] Evidence exists in the record that bo th parties contribu ted to the farming operation. Janet Gerving contributed to the farm and family by working full time off the farm, providin g 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 as sets related to the farming operation. We conclude the property distribution is not equitable.
[¶14] This Court has previously reversed similar proper ty distributions. In Wagner v. Wagner , 2007 ND 101, ¶¶ 1, 7, 733 N.W.2d 593, this Court reversed a property distribution in which the ne t marital estate wa s worth $332,500, the wife received a property award of $12,000 and spousal su pport of $200 per month for two years, and the husband re ceived the remainder of the marital assets and all marital debts. The distr ict court explained its distribution by finding the wife was “entitled to littl e of the assets” because she contributed little to the accumulati on of the assets. Id. at ¶ 15. This Court acknowledged the district court was attempting to pres erve farm property, but concluded:
Although we have generally sa id 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 rental7 property. Here, the district cour t was laboring to maintain the farm assets intact desp ite the lack of an ongoing farming operation and, in effect, was removing the pr operty from consideration of an equitable distribution.

Id. at ¶ 16. This Court concluded th e district court erred in limiting the property distribution to th e wife based on the husban d’s limited income and by failing to consider liquidati on of the farm assets. Id. at ¶ 17.
[¶15] Similarly, in this case it is clea r the district court was attempting to keep the farming operation viable and resp ect 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 wh at Ben Gerving can afford to pay. Most of the parties’ land is being used as rental prop erty. 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, th at he rents out cropland in three of the parcels, and thatthe 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, in cluding giving some to Janet Gerving, as long as it is saved for their childre n. He testified th ere was one parcel of land he could do withou t and keep the farm operational. Janet Gerving testified she did not have any plans to se ll 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 di strict court’s property distribution is clearly erroneous. We reverse and rema nd 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 Ge rving sold cattle8 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 th at results in a wasted asset or in the reduction of the ne t 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 distribut ing marital property. Id. A court’s findings about economic fault are findings of fact, subj ect to the clearly er roneous standard of review. Conzemius v. Conzemius , 2014 ND 5, ¶ 22, 841 N.W.2d 716.
[¶19] The district court found Ben Gervin g acknowledged selling cattle under other people’s names, he explained he owed his siste r money for her help with expenses or for equipment she purchase d for the farm, he gave his sister the cattle in exchange for her he lp, and he admitted that so me of the proceeds were given back to him but they were used for farm expenses. The court found Ben Gerving testified Janet Gerving was awar e this was how theyoperated and she did not have a problem with it when she was living on the farm. The court found:
During Janet’s testimony sh e acknowledged handling the books and taxes for the farm th e 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 se emed to be caus ed more from lack of records and la ck 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 landtaxes, they used the same practice in the past, and it did not bother Jan et Gerving. There was evidence Ben Gerving used the proceeds he received from selling ca ttle in other people’s names to pay bills and other farm expe nses. Evidence supports the court’s9 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.