IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 229

Denise M. Senger, Plaintiff and Appellee

 v.

James Senger, Defendant and Appellant

No. 20220040

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

District, the Honorable James S. Hill, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by McEvers, Justice.

Mikayla M. Reis and Todd D. Kranda, Mandan, ND, for plaintiff and appellee.

Justin D. Hager, Bismarck, ND, for defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

DECEMBER 22, 2022 

STATE OF NORTH DAKOTA
2

Senger v. Senger

No. 20220040

McEvers, Justice.

[¶1] James Senger appeals from a divorce judgment entered following a 

bench trial. He argues the district court erred by retroactively applying an 

amended and reenacted version of N.D.C.C. § 14-05-24(1) in valuing the 

marital estate and, thereby, erred by considering inadmissible evidence and 

incorrectly valuing the marital home and bank accounts. He further argues the 

court erred by distributing marital property and by awarding Denise Senger 

spousal support. We affirm in part, reverse in part, and remand for further 

proceedings consistent with this opinion.

I

[¶2] James Senger and Denise Senger were married in 1988. Denise Senger 

sued for divorce on July 27, 2020. James Senger answered and filed a 

counterclaim. A bench trial was held on November 18, 2021. At the time of 

trial, James Senger was 57 years of age and Denise Senger was 54. They lived 

in Mandan, North Dakota. Denise Senger was employed with the North 

Dakota State Penitentiary earning approximately $59,609 annually. James 

Senger was employed with Burlington Northern Santa Fe Railroad, earning 

approximately $137,700 annually.

[¶3] The district court heard testimony from both parties regarding the 

accumulated assets, debts, and the conduct attributing to the breakdown of 

this long-term marriage. Testimony revealed that James Senger’s alcohol use 

became problematic, he was verbally abusive towards Denise Senger, and she 

felt threatened by his drunken, angry behavior. 

[¶4] Denise Senger presented testimony from a real estate agent regarding a 

market analysis of the marital home valuing the home between $425,000 and 

$475,000. Denise Senger adopted her valuation of $440,000 by splitting the 

difference of the appraiser’s values. James Senger valued the home at 

$382,500. The district court found the law existing at the time of the market 

analysis and time of trial applied, but the distinction had little impact because 
3

the home would be sold. The court further found there was no appraised value 

of the marital home on July 27, 2020, nor a precise valuation on September 18, 

2021. Based on this finding, the court ordered the marital home be sold as an 

equitable division of the property with the parties each receiving one-half of 

the net sale proceeds. The court agreed with Denise Senger’s value of the 

marital home based on the market analysis her real estate agent presented.

[¶5] Regarding the financial assets, the district court split all of the parties’ 

bank accounts equally between them. The court awarded each party their 

individual retirement account balances. The court awarded James Senger

$130,000 in unaccounted for cash withdrawals he made from his bank account. 

The court awarded various real estate holdings and vehicles, which are not in 

dispute on appeal. After dividing the assets and liabilities, the court calculated 

an equity adjustment to be paid by James Senger, resulting in an equal division 

of property. The court awarded Denise Senger spousal support of $1,000 per 

month. James Senger appeals from the divorce judgment. 

[¶6] On appeal, James Senger argues the district court erred by retroactively 

applying N.D.C.C. § 14-05-24(1) in valuing the marital estate and, thereby, 

erred by considering inadmissible evidence and incorrectly valuing the marital 

home and bank account. James Senger further argues the court erred by

distributing marital assets and awarding Denise Senger spousal support.

II

[¶7] Section 14-05-24(1) (2017), N.D.C.C., requires a district court to value 

the parties’ property and debts and “make an equitable distribution” in 

granting a divorce.1 Our standard for reviewing a district court’s marital 

property distribution is well established:

This Court reviews a district court’s distribution of marital 

property as a finding of fact, and will not reverse unless the 

findings are clearly erroneous. A finding of fact is clearly erroneous 

if it is induced by an erroneous view of the law, if there is no 

1 Section 14-05-24(1), N.D.C.C., was amended effective August 1, 2021, after this action commenced. 
4

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.

Berdahl v. Berdahl, 2022 ND 136, ¶ 6, 977 N.W.2d 294 (internal citations and 

quotation marks omitted) (quoting Holm v. Holm, 2017 ND 96, ¶ 4, 893 N.W.2d 

492).

[¶8] In distributing marital property, the district court considers the RuffFischer factors, which 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.

Berdahl, 2022 ND 136, ¶ 7; Ruff v. Ruff, 52 N.W.2d 107 (N.D. 1952); Fischer v. 

Fischer, 139 N.W.2d 845 (N.D. 1966). The court is not required to make specific 

findings on each Ruff-Fischer factor; however, we must be able to determine 

the reasons for the court’s decision. Berdahl, at ¶7.

A

[¶9] James Senger argues the district court erred by retroactively applying 

the August 1, 2021 version of N.D.C.C. § 14-05-24(1).
5

[¶10] Whether a statute applies retroactively is a question of law. Smith v. 

Baumgartner, 2003 ND 120, ¶ 9, 665 N.W.2d 12. Questions of law are fully 

reviewable on appeal. Klein v. Klein, 2016 ND 153, ¶ 4, 882 N.W.2d 296.

[¶11] A statute is applied retroactively if it applied to an action that arose 

before the effective date. Baumgartner, 2003 ND 120, ¶ 11. When this action 

commenced in July 2020, N.D.C.C. § 14-05-24(1) (2017) provided: “If the 

parties do not mutually agree upon a valuation date, the valuation date for 

marital property is the date of service of a summons in an action for divorce or 

separation or the date on which the parties last separated, whichever occurs 

first.” The amended version of the statute states the valuation date is sixty 

days before the initially scheduled trial date. N.D.C.C. § 14-05-24(1). In order 

for a court to retroactively apply a statute, the statute itself must generally

contain language expressly declaring the statute to be retroactively applied.

N.D.C.C. § 1-02-10 (providing “no part of this code is retroactive unless it is 

expressly declared to be so”); see also Klein, 2016 ND 153, ¶ 12 (holding 

statutes cannot be applied retroactively without specific legislative direction); 

Larson v. Norheim, 2013 ND 60, ¶ 10, 830 N.W.2d 85 (applying prior version 

of statute that was in effect at the time the action commenced); Sorenson v. 

Felton, 2011 ND 33, ¶ 9, 793 N.W.2d 799 (same); Berdahl, 2022 ND 136, ¶ 6 n. 

1 (applying version of N.D.C.C. § 14-05-24(1) at time of commencement). 

However, laws conferring benefits may be excepted from the general rule on 

retroactive application. Baumgartner, 2003 ND 120, ¶¶ 11-15. Nothing in the 

statute or the legislative history suggests the amendments were intended to 

apply retroactively. The district court erred by not applying the version of

N.D.C.C. § 14-05-24(1) in effect at the time of commencement of the divorce 

action.

B

[¶12] Because the district court erred by retroactively applying the statute, we 

now examine whether the error was harmless. Rule 61 of the North Dakota 

Rules of Civil Procedure provides guidance for dealing with errors:
6

Unless justice requires otherwise, no error in admitting or 

excluding evidence, or any other error by the court or a party, is 

ground for granting a new trial, for setting aside a verdict, or for 

vacating, modifying, or otherwise disturbing a judgment or order. 

At every stage of the proceeding, the court must disregard all 

errors and defects that do not affect any party’s substantial rights.

Put simply, an error is harmless if it does not affect the outcome of the case or 

a party’s substantial rights.

[¶13] James Senger argues the district court erred by admitting evidence that 

should have been excluded based on relevancy because it used the incorrect 

valuation date, and relying on that evidence when valuing the marital home.

[¶14] “A trial court has broad discretion when ruling whether proffered 

evidence is relevant, and we will not reverse that decision absent an abuse of 

discretion. A trial court abuses its discretion when it acts in an arbitrary, 

unreasonable, or unconscionable manner.” Goff v. Goff, 1999 ND 95, ¶20, 593 

N.W.2d 768 (cleaned up).

[¶15] At trial, Denise Senger presented testimony of a real estate agent and 

offered into evidence an August 27, 2021, market analysis the agent conducted 

of the marital home. The valuation indicated the home was a unique property 

and it was difficult to provide comparable properties because few similar 

properties had been sold. The valuation included analysis on three comparable 

homes sold between October 30, 2020 and August 13, 2021. The district court 

admitted the market analysis into evidence over objection. The following 

exchange occurred: 

[James Senger’s Counsel]: . . . We would object to Exhibit 

2 at this time and our objection is based on relevancy regarding

this exhibit. We are supposed to use the date of valuation as [sic] 

commencement in this action. This exhibit purports to be from 

August 27th of 2021 and the valuation therefrom. 
7

THE COURT: All right. The objection is to relevance. 

Any response, Counsel?

[Denise Senger’s Counsel]: I would say that it’s relevant. 

It was the closest date we could get as of the date of 

commencement, and therefore it’s the only real market analysis or 

evaluation that was offered at all by either party. Therefore, I 

conclude it’s relevant, Your Honor. 

THE COURT: All right. Exhibit 2 is going to be received. I 

do note the objections by [James Senger’s counsel], the relevance 

issues. I do have to relate it back to a specific date. We have an 

August 2021, date on the market analysis. The Court will have to 

consider that in taking into account the exhibit. 

[¶16] Evidence is relevant if it has any tendency to make a fact of consequence 

more or less probable than it would be without the evidence. N.D.R.Ev. 401. In 

a bench trial, it is presumed the district court only considered competent 

evidence because a judge, when deliberating the ultimate decision, is capable 

of distinguishing between admissible and inadmissible evidence. Rath v. Rath, 

2018 ND 138, ¶ 17, 911 N.W.2d 919. As we explained:

In the trial of a nonjury case, it is virtually impossible for a trial 

judge to commit reversible error by receiving 

incompetent evidence, whether objected to or not. An appellate 

court will not reverse a judgment in a nonjury case because of the 

admission of incompetent evidence, unless all of the 

competent evidence is insufficient to support the judgment or 

unless it affirmatively appears that the 

incompetent evidence induced the court to make an essential 

finding which would not otherwise have been made.

Haas v. Hudson & Wylie LLP, 2020 ND 65, ¶ 14, 940 N.W.2d 650.

[¶17] The August 2021 market analysis was relevant because the value of the 

marital home is a fact of consequence. The court did not abuse its discretion by

considering the testimony or the market analysis. Furthermore, the court 

noted the distinction in the statutory language had “little impact in this case” 
8

because the marital home would be sold with both parties splitting the 

proceeds equally. The court reasoned “there was no testimony at trial regarding 

the appraised value of the marital home on July 27, 2020 nor a precise 

valuation on September 18, 2021, given the nature of the property and the 

availability of comparative sale for comparison purposes.”

[¶18] A court’s valuations of marital property are not clearly erroneous if they 

are within the range of evidence presented. Wald v. Wald, 2020 ND 174, ¶ 11, 

947 N.W.2d 359. “In a bench trial, the district court determines credibility 

issues, which [this Court] will not second-guess on appeal.” Id. at ¶ 27. “The 

district court is in a better position than this Court to judge the credibility and 

observe the demeanor of witnesses and to determine property values.” Datz v. 

Dosch, 2013 ND 148, ¶ 22, 836 N.W.2d 598 (cleaned up). The court’s marital 

property valuation depends on the evidence presented by the parties. 

Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 12, 673 N.W.2d 601. 

[¶19] Denise Senger’s real estate agent testified providing a market analysis 

on the marital home. He valued the house between $425,000 and $475,000

based on his analysis comparing the marital home to other comparable 

properties in the Bismarck-Mandan area. He testified the marital home was a 

unique property in the area and the August 2021 date he used for the market 

analysis was the closest he could get to the date of commencement of this action 

due to the unique nature of the property. He also stated he would hope to get 

at least $400,000 out of this property if he were to sell it. 

[¶20] Denise Senger testified her “owner’s value” of the marital home was 

$440,000, which splits the difference between $400,000 and $475,000, the high 

end of the market analysis. James Senger testified his “owner’s value” of the 

marital home on the date of commencement was $382,500. The district court 

found the marital home’s value was $440,000, finding the range the real estate 

agent offered most credible and persuasive. The record supports the court’s 

findings.

[¶21] The district court’s use of the incorrect version of the statute to 

determine the valuation date for the marital home was harmless. Even if the 
9

valuation of the home was affected, it did not affect either party’s substantial 

rights. The parties were each awarded fifty percent of the equity of the home. 

The court asked James Senger about selling the house at trial: “[I]f there’s no 

agreement as to the value of the house, and I ordered as a judge that the 

property be placed on the open market and sold, would you agree to do that?” 

James Senger replied, “Yes.” The court ordered the marital home be listed for 

sale within 90 days of entry of judgment with the parties to share the proceeds, 

and the option for either party to purchase the home at one-half of the court’s 

value. James Senger has not provided any legal authority that he was entitled 

to receive any particular marital property; therefore, he has not established 

his substantial rights were affected by the court’s valuation of the property or 

ordering the marital home be sold.

C

[¶22] James Senger argues the district court erred by considering evidence 

that should have been excluded when assigning value to a bank account. James 

Senger and Denise Senger agreed through the property and debt listing that 

the current value of one of the accounts at issue was $32,000. However, James 

Senger argues the court must address $17,969 missing from an account that 

was closed. 

[¶23] The district court addressed the $17,969 transaction. The court heard 

testimony from Denise Senger and the parties’ daughter relating to the

transaction. The court found Denise Senger and her daughter to be credible, 

as they both unequivocally testified that loans were often made between the 

sisters for school expenses. The court found the account at issue was jointly 

owned by Denise Senger and her daughter, these accounts were not 

commingled, and the disputed amount was a loan between the daughter and 

her sister. We will not second guess the credibility the district court gave to the 

testimony. See Datz, 2013 ND 148, at ¶ 22 (explaining the district court is 

better positioned to judge credibility, observe witness’s demeanor, and 

determine property values). The court properly relied on the testimony it found 

more credible.
10

D

[¶24] James Senger argues the district court erred by identifying cash 

withdrawals made prior to commencement of the divorce as marital assets. 

According to James Senger, the cash withdrawals he made should not have 

been considered an asset for distribution because they did not exist when the 

action commenced.

[¶25] The district court found James Senger used or misappropriated marital 

assets since the service of the summons in the amount of $130,000. Economic 

fault and dissipation of marital assets are proper factors to consider when 

determining an equitable distribution of property. Horner v. Horner, 2004 ND 

165, ¶ 16, 686 N.W.2d 131. 

[¶26] The district court relied on plaintiff’s trial exhibit 13 regarding James 

Senger’s unaccounted for cash withdrawals amounting to $130,000. This 

exhibit shows the withdrawal of $140,700 occurred between June 2017 and 

July 2020, prior to commencement of the divorce. It is unclear why the court

used the amount of $130,000 rather than the $140,700, or why the court looked 

at cash withdrawals during this prolonged period prior to commencement of 

the divorce. Although credible testimony may have existed that James Senger 

withdrew cash without adequately accounting for it, we are unable to discern 

the basis for the district court’s findings on this issue. Therefore, we reverse

the court’s award to James Senger of unaccounted for cash withdrawals as a 

marital asset and remand with instructions to further explain its reasoning on

any unjustified use or dissipation of marital assets by James Senger.

III

[¶27] James Senger argues the district court erred by awarding spousal 

support to Denise Senger.

[¶28] District courts may award spousal support under N.D.C.C. § 14-05-24.1. 

“When determining whether to award spousal support, ‘the court must 

consider the Ruff-Fischer guidelines, the needs of the spouse seeking support, 

and the ability of the other spouse to pay.’” Quamme v. Quamme, 2021 ND 208, 
11

¶ 14, 967 N.W.2d 452 (quoting Willprecht v. Willprecht, 2020 ND 77, ¶ 40, 941 

N.W.2d 556).

[¶29] “‘Spousal support and property distribution are interrelated and 

intertwined and must be considered together.’” Lizakowski v. Lizakowski, 2017 

ND 91, ¶ 21, 893 N.W.2d 508 (quoting Krueger v. Krueger, 2008 ND 90, ¶ 9, 

748 N.W.2d 671). We remand on the spousal support issue because we reversed 

and remanded on the property division issue. However, while we do not fully 

review the district court’s analysis on spousal support, the court should be 

mindful on remand to consider Denise Senger’s current needs for spousal 

support rather than hypothetical needs. The district court found that Denise 

Senger had several years before reaching retirement age and Medicare 

eligibility and would have to factor in future health insurance costs if she did 

not continue employment with the State of North Dakota. Our cases require a 

finding on the current known needs of the requesting spouse and leave 

hypothetical future needs to consideration of changed circumstances by the 

district court under a motion to modify a support award. Knudson v. Knudson, 

2018 ND 199, ¶ 21, 916 N.W.2d 793 (“We have previously affirmed a court’s 

denial of spousal support when . . . the requesting spouse had the ability to 

adequately address her current needs . . . .”) (emphasis added). The district 

court should reconsider spousal support in light of any changes made in the 

division of property.

V

[¶30] The district court’s judgment is affirmed in part, reversed in part, and 

remanded for further proceedings consistent with this opinion.

[¶31] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Lisa Fair McEvers

Jerod E. Tufte

Bruce Haskell, S.J.

[¶32] The Honorable Bruce Haskell, S.J., sitting in place of Crothers, J., 

disqualified.