IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 50

Ben Gerving, Plaintiff and Appellant

 v.

Janet Gerving, Defendant and Appellee

 and

State of North Dakota Statutory Real Party in Interest

No. 20200291

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

District, the Honorable John W. Grinsteiner, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

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

Erica J. Shively, Bismarck, ND, for defendant and appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MARCH 24, 2021 

STATE OF NORTH DAKOTA
1

Gerving v. Gerving

No. 20200291

Crothers, Justice.

[¶1] Ben Gerving appeals from an amended divorce judgment and parenting 

plan. He argues the district court’s distribution of marital assets and debts was 

clearly erroneous. Janet Gerving argues the appeal is frivolous and she is 

entitled to costs and attorney’s fees. The amended divorce judgment and 

parenting plan are affirmed, and Janet Gerving’s request for attorney’s fees is 

denied. 

I

[¶2] Ben Gerving and Janet Gerving were married in 2004. The parties have 

two minor children and own and operate a farm that has been in Ben Gerving’s 

family for three generations. Ben Gerving is employed as a road grader in 

Oliver County, and Janet Gerving is employed as a certified nursing assistant 

at Elm Crest Nursing Home in New Salem, North Dakota. 

[¶3] A divorce trial was held on May 7, 2019. The district court issued its 

findings of fact, conclusions of law, and order for judgment on June 12, 2019. 

The court found the facts supported an equal division of the marital estate but 

that the law disfavored breaking up family farms. Therefore, the court 

awarded Ben Gerving the entire farm, including the homestead, livestock, and 

equipment. The court noted the award would only become a windfall to Ben 

Gerving if he sold the land, and in the event he sold the land, the proceeds were 

to be distributed equally between Ben Gerving and Janet Gerving. Janet 

Gerving was awarded her retirement account and annual property 

equalization payments of $6,000 over 16 years. 

[¶4] Janet Gerving appealed the district court’s original judgment, and this 

Court reversed. Gerving v. Gerving, 2020 ND 116, 943 N.W.2d 797. This Court 

concluded Ben Gerving was awarded approximately 90% of the marital estate, 

that distribution was not equitable and the district court clearly erred by

retaining jurisdiction over a final property distribution. 
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[¶5] On remand, the district court noted it had a choice to either force a sale 

of the land and divide the proceeds or divide the land with an equity payment 

stretched out over a number of years. In choosing the latter, the court awarded 

Janet Gerving two parcels of land and Ben Gerving the other two parcels of 

property with a considerably higher value. Ben Gerving also received the farm 

equipment and animals, and the farm’s operating loan and debt. Ben Gerving 

was ordered to make equalization payments to Janet Gerving over 20 years. 

The court noted its new distribution ultimately awarded each party half of the 

assets. This new distribution was reflected in the amended divorce judgment 

and parenting plan, issued September 15, 2020. Ben Gerving appeals from that 

judgment. 

II

[¶6] Ben Gerving argues the district court’s property distribution on remand 

should leave this Court with a definite and firm conviction a mistake has been 

made. Ben Gerving claims the court’s order makes selling the farm an eventual 

certainty, that forcing the sale of a family farm should be an absolute last 

resort, and that doing such was clearly erroneous. We conclude the evidence 

supports the district court’s findings, the decision on property division was 

adequately explained, we are not left with a definite and firm conviction a 

mistake was made, and the court’s decision is not clearly erroneous. We 

summarily affirm under N.D.R.App.P. 35.1(a)(2). 

III

[¶7] Janet Gerving argues she is entitled to costs and attorney’s fees under 

Rule 38 of the North Dakota Rules of Appellate Procedure. She asserts Ben 

Gerving’s arguments on appeal are so groundless and devoid of merit that she 

should be awarded costs and fees. 

[¶8] Rule 38 of the North Dakota Rules of Appellate Procedure provides: “An 

appeal is frivolous if it is flagrantly groundless, devoid of merit, or 

demonstrates persistence in the course of litigation which could be seen as 

evidence of bad faith.” Larson v. Larson, 2002 ND 196, ¶ 13, 653 N.W.2d 869. 

“When reviewing the frivolous nature of an appeal, we consider whether there 
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is such a ‘. . . complete absence of facts and law that a reasonable person might 

not have thought this Court would render a favorable judgment on appeal.’” 

Williams v. State, 405 N.W.2d 615, 620 (N.D. 1987).

[¶9] Janet Gerving argues Ben Gerving provides no good faith legal argument 

to support his contention the district court’s property distribution should be 

overturned. She asserts Ben Gerving presents only arguments previously 

decided by this Court in Gerving I. We disagree. The issues in this appeal and 

Gerving I are different due to the change in property distribution upon remand. 

Ben Gerving presented an argument this Court should be left with a definite 

and firm conviction a mistake was made as to the distribution on remand. We 

conclude Ben Gerving’s arguments on appeal were not so groundless or devoid 

of merit that they were frivolous. Janet Gerving’s request for attorney’s fees is 

denied.

IV

[¶10] The amended divorce judgment and parenting plan are affirmed, and 

Janet Gerving’s request for attorney’s fees is denied.

[¶11] Jon J. Jensen, C.J. 

Gerald W. VandeWalle 

Daniel J. Crothers 

Lisa Fair McEvers 

Jerod E. Tufte