Filed 07/30/2020 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 174

Gerard Wald, Plaintiff and Appellee

v.

Donna Mae Wald, Defendant and Appellant

No. 20190159

Appeal from the District Court of McIntosh County, Southeast Judicial 

District, the Honorable Daniel D. Narum, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Patti J. Jensen, East Grand Forks, Minnesota, for plaintiff and appellee.

Rodney E. Pagel, Bismarck, North Dakota, for defendant and appellant.
1

Wald v. Wald

No. 20190159

Tufte, Justice.

[¶1] Donna Wald appeals from an amended divorce judgment valuing and 

distributing Donna Wald’s and Gerard Wald’s marital property. She also 

appeals from a postjudgment order denying her motion for contempt or 

redistribution of property. We affirm, concluding the district court did not 

clearly err in valuing and distributing the parties’ marital property.

I

[¶2] Donna and Gerard Wald were married in 1975. Gerard Wald sued for 

divorce in August 2017. Gerard Wald operates a cattle ranch and fencing 

business, and Donna Wald is no longer employed.

[¶3] After a three-day bench trial in September 2018, the district court valued 

the parties’ marital estate at approximately $5.83 million. The parties owned 

2,044 acres of real property used for the ranch, which accounted for nearly half 

of the marital estate’s total value.

[¶4] The district court awarded Gerard Wald property valued at $4.24 million 

and Donna Wald property valued at $1.59 million. Gerard Wald’s award of 

marital property included the real property integral to the cattle ranch, 

livestock, farm machinery, and the fencing business. Donna Wald was awarded 

a majority of the parties’ financial accounts, hay bales, a rental property, and 

remainder interests in real property.

[¶5] After entry of judgment, Donna Wald moved for contempt or in the 

alternative for redistribution of property, claiming she was unable to retrieve 

the hay bales awarded to her under the judgment and Gerard Wald refused to 

turn the bales over to her. The court denied her motion, finding she failed to 

remove the hay bales as required by the judgment.
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II

[¶6] Gerard Wald moved to dismiss the appeal, claiming Donna Wald waived 

her right to appeal because she voluntarily and unconditionally accepted

substantial benefits of the judgment. Gerard Wald argues Donna Wald 

accepted all of the property awarded to her except the hay bales, which she 

failed to retrieve.

[¶7] Generally, one waives the right to appeal by voluntarily, unconditionally, 

and consciously accepting a substantial benefit from a divorce judgment.

Willprecht v. Willprecht, 2020 ND 77, ¶ 6, 941 N.W.2d 556. A party moving to 

dismiss the appeal must clearly establish the other party waived the right to 

appeal. Id. This Court has sharply limited the waiver rule in divorce cases:

The party objecting to the appeal has the burden of showing the 

benefit accepted by the appealing party is one which the party 

would not be entitled to without the decree. There must be unusual 

circumstances, demonstrating prejudice to the movant, or a very 

clear intent on the part of the appealing party to accept the 

judgment and waive the right to appeal, to keep this Court from 

reaching the merits of the appeal.

Id. (quoting Tuhy v. Tuhy, 2018 ND 53, ¶ 7, 907 N.W.2d 351).

[¶8] Gerard Wald does not assert that extraordinary circumstances exist here 

or that he is prejudiced by the appeal. Donna Wald argues she should receive 

a greater share of the marital estate. Gerard Wald does not assert Donna Wald

is entitled to less than she was awarded. Gerard Wald has not demonstrated 

that Donna Wald clearly waived the right to appeal. We deny his motion to 

dismiss the appeal.

III

[¶9] Donna Wald argues the district court erred in valuing and distributing 

the marital estate.
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A

[¶10] Donna Wald argues the district court clearly erred in its valuation of 

marital property. She claims the court erroneously accepted Gerard Wald’s 

valuation of the 2,044 acres over the value provided by her real estate 

appraiser. She also argues the court erred in its valuation of the fencing 

business’s inventory.

[¶11] A district court’s valuations of marital property are findings of fact and 

will not be reversed on appeal unless they are clearly erroneous. Willprecht, 

2020 ND 77, ¶ 10, 941 N.W.2d 556. 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, 

after reviewing the entire record, this Court is left with a definite and firm 

conviction a mistake has been made. Id. A court’s valuations of marital 

property are not clearly erroneous if they are within the range of evidence 

presented. Eberle v. Eberle, 2010 ND 107, ¶ 17, 783 N.W.2d 254.

[¶12] Gerard Wald valued the 2,044 acres of real property at $1,400 per acre, 

for a total of $2,861,160. Donna Wald’s appraiser valued the real property at 

$3,028,000. In accepting Gerard Wald’s value of the property, the district court

found “Gerard’s opinion credible considering his knowledge of the land and its 

use as well as his general knowledge of the value of property in the area.”

[¶13] “An owner of real property may testify as to the value of the land without 

any further qualification or special knowledge.” Eberle, 2010 ND 107, ¶ 17, 783 

N.W.2d 254. The parties’ values of the 2,044 acres differed by approximately 

6%, or $166,840. The district court’s value of $2,861,160 was within the range 

of evidence presented. We conclude the court did not clearly err in valuing the 

parties’ real property. We are not left with a definite and firm conviction a 

mistake was made.

[¶14] The district court valued the inventory of the fencing business at 

$200,000 on the basis of evidence provided by Gerard Wald. The court found 

Donna Wald “provided no valuation of the inventory even being given the 

opportunity to update the information provided on the Rule 8.3 Statement.”
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We conclude the court’s valuation of the fencing business’s inventory was not 

clearly erroneous.

B

[¶15] Donna Wald argues the district court erred by not including 10 cows, 10 

calves, feeder cows, and a bull in the marital estate.

[¶16] The district court found the parties were separated on August 8, 2017.

The court valued the marital property as of that date. See N.D.C.C. § 14-05-

24(1) (stating that if the parties do not agree on a valuation date, the date of 

separation may be used as the valuation date). The court found Gerard Wald 

acquired the 10 cows, 10 calves, feeder cows, and bull after the August 2017 

valuation date. The court also found Donna Wald acquired a significant 

amount of personal property after the separation that was not included in the 

marital estate. Because the property acquired after the valuation date would 

have been obtained with income earned after the valuation date or with 

proceeds from the sale of assets that were valued as of the valuation date, the 

district court appropriately limited its consideration to one point in time for 

both parties’ property.

[¶17] Both parties acquired property after the valuation date that was not 

included in the marital estate. We conclude the court did not clearly err by not 

including the after-acquired property in the marital estate.

C

[¶18] Donna Wald claims the district court clearly erred in its distribution of 

marital property. She claims the court did not adequately explain the 

substantial disparity in its distribution of marital property.

[¶19] A district court’s property distribution is a finding of fact and will not be 

set aside unless the court’s findings are clearly erroneous. Willprecht, 2020 ND 

77, ¶ 19, 941 N.W.2d 556. The district court must make an equitable property 

distribution under N.D.C.C. § 14-05-24(1). The court must include all of the 

parties’ assets and debts in the marital estate and then consider the Ruff-
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Fischer guidelines to equitably distribute the property. Willprecht, at ¶ 19. The 

Ruff-Fischer guidelines include the following factors:

[T]he 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.

Id. at ¶ 19 (quoting Lee v. Lee, 2019 ND 142, ¶ 12, 927 N.W.2d 104). A longterm marriage generally supports an equal distribution of the marital estate. 

Conzemius v. Conzemius, 2014 ND 5, ¶ 17, 841 N.W.2d 716. The property 

distribution does not need to be equal to be equitable, but the court must 

explain a substantial disparity. Willprecht, at ¶ 19.

[¶20] The district court awarded Donna Wald $1,587,584.44, and Gerard Wald

$4,239,534 in marital property. The court awarded Gerard Wald the real 

property used for the cattle ranch, livestock, farm equipment, and the fencing 

business. The court awarded Donna Wald a majority of the parties’ financial

and retirement accounts, the bales resulting from the 2017 and 2018 hay crops, 

remainder interests in real property, and a rental property in Wishek. The 

parties did not have any joint debt.

[¶21] The district court addressed each of the Ruff-Fischer factors. The court 

found the factors relating to the parties’ ages and conduct during the marriage 

supported an unequal distribution in favor of Gerard Wald. The court found 

Donna Wald at age 63 chose to be retired and unemployed. Gerard Wald at age 

64 continues to work in a labor intensive occupation. The court found Gerard 

Wald is less hands on and more of a “coach” to his employees. The court found 

Donna Wald’s alcohol use made her physically and emotionally abusive toward 

Gerard Wald, which resulted in a protection order. The court found each party 

will have the ability to provide self-support with the assets awarded to them.
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[¶22] After reviewing the district court’s findings on the Ruff-Fisher factors, 

we conclude the evidence supports the findings and the findings are not clearly 

erroneous. The court adequately addressed the substantial disparity in the 

property distribution, and we are not left with a definite and firm conviction a 

mistake was made.

D

[¶23] Donna Wald asserts the district court erred in determining a payment 

of $50,000 to her for purposes of paying attorney’s fees and expenses was a 

property distribution while allowing Gerard Wald to pay more than $35,000 in 

attorney’s fees from the marital estate.

[¶24] Following a hearing on Donna Wald’s motion for an interim order, the 

district court ordered Gerard Wald to pay Donna Wald $50,000 as an advance 

property distribution to be used “for any purpose.” The interim order stated 

the “payment shall be credited against [her] as an advance upon her share of 

the final distribution of the marital estate.” Although the distribution was to 

be used for any purpose, she alleged she used it for payment of attorney’s fees 

and expenses. At trial, Gerard Wald submitted an exhibit showing he spent 

$35,356.15 on attorney’s fees and expenses, which were paid from the marital 

estate.

[¶25] Assuming the district court erred, we conclude the error does not justify 

reversal in this case involving a marital estate in excess of $5.8 million. See 

Halvorson v. Halvorson, 482 N.W.2d 869, 872 (N.D. 1992) (explaining a 

relatively insignificant error, standing alone, does not warrant reversal of a 

judgment).

IV

[¶26] Donna Wald asserts the district court erred in finding Gerard Wald was 

more credible than Donna Wald.

[¶27] “In a bench trial, the district court determines credibility issues, which 

we will not second-guess on appeal.” Vig v. Swenson, 2017 ND 285, ¶ 14, 904 

N.W.2d 489. We decline to address Donna Wald’s credibility argument.
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V

[¶28] Donna Wald argues the district court erred in denying her postjudgment 

motion for contempt or in the alternative for redistribution of property. She 

claims that because she did not receive the hay bales awarded to her, the court 

should have ordered Gerard Wald to pay her $242,216 for the value of the hay 

bales.

[¶29] Under N.D.C.C. § 14-05-24(3), “[t]he court may redistribute property and 

debts in a postjudgment proceeding if a party . . . fails to comply with the terms 

of a court order distributing property and debts.” A court has broad equitable 

powers under N.D.C.C. § 14-05-24(3) to grant relief from a divorce judgment. 

Walstad v. Walstad, 2012 ND 204, ¶ 19, 821 N.W.2d 770. We review a court’s 

decision whether or not to exercise its equitable powers for an abuse of 

discretion. Estate of Albrecht, 2018 ND 67, ¶ 23, 908 N.W.2d 135. A court 

abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable 

manner; it misinterprets or misapplies the law; or its decision is not the 

product of a rational mental process leading to a reasoned determination. Id.

[¶30] The amended judgment dated May 2, 2019, provides, “Donna shall 

provide fourteen (14) days’ notice of her intent to remove the bales and they 

shall be removed from the property . . . within thirty (30) days of entry of 

Judgment.” The district court found Donna Wald did not contact Gerard Wald 

about removing the bales until August 2019. The court found she did not move 

for an extension of the time to remove the bales. The court stated, “Donna has 

taken no affirmative steps to remove the hay bales awarded to her as required 

by Paragraph 8 of the Judgment and Amended Judgment.” The court also 

stated, “Donna presented insufficient evidence for the Court to determine the 

value of hay as of August 20, 2019, or the date of hearing and without such, it 

has no evidence from which it is able to grant a request to redistribute the 

value of the hay bales awarded to her.” The court concluded Gerard Wald 

complied with the judgment.

[¶31] Donna Wald failed to exercise her rights under the judgment relating to 

the hay bales. We conclude the district court did not abuse its discretion in 

denying her motion.
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VI

[¶32] Having considered Donna Wald’s remaining arguments, we conclude 

they are either without merit or not necessary to our decision. The amended 

judgment and postjudgment order are affirmed.

[¶33] Jerod E. Tufte 

Daniel J. Crothers

Gerald W. VandeWalle

Jon J. Jensen, C.J.

Stacy J. Louser, D.J.

[¶34] The Honorable Stacy J. Louser, District Judge, sitting in place of 

McEvers, J., disqualified.