from the District Court of Stark County, Southwest Judicial
District, the Honorable Zane Anderson, Judge.
M. Jackson, for plaintiff and appellant.
D. Ramsey, for defendant and appellee.
VandeWalle, Chief Justice.
1] Helen Rebel appealed from an amended divorce judgment
entered after remand distributing the parties' marital
property. We conclude the district court adequately explained
its disparity in distributing the parties' marital
property and the distribution is not clearly erroneous. We
further conclude the court did not abuse its discretion in
awarding interest on Rodney Rebel's delayed cash payments
to Helen Rebel. We affirm.
2] Helen and Rodney Rebel were married in 1989 and owned a
farming and ranching operation. In 2010, Helen Rebel sued for
divorce. They had two children, one of whom was a minor at
the time of the divorce. After an initial trial, Helen Rebel
appealed a judgment granting her a divorce from Rodney Rebel,
awarding her primary residential responsibility and child
support for the minor child, and distributing their marital
3] This Court affirmed the district court's child support
award but reversed and remanded its property distribution,
holding the court had not adequately articulated reasons
justifying its disparity in favor of Rodney Rebel. Rebel
v. Rebel, 2013 ND 116, ¶ 15, 833 N.W.2d 442. In
remanding the case, a majority of this Court explained:
The district court articulated some reasons for granting an
unequal distribution. But, the fact that the land was
acquired on "very generous terms" from Rodney
Rebel's parents does not explain giving the greater
distribution to Rodney Rebel when the land was acquired
during the marriage, both parties were purchasers, and the
district court found "[b]oth parties' income and
effort contributed to the increase in the marital
estate." See Ulsaker v. White, 2006 ND
133, ¶ 12, 717 N.W.2d 567 ("[T]he origin of
property is not the sole or, necessarily, the controlling
factor under the Ruff-Fischer guidelines.")
(citation omitted). The distribution was based on an
assumption that the difference was $356, 769.00. The district
court has not adequately articulated reasons justifying a
greater disparity in favor of Rodney Rebel. Moreover, by
failing to either award interest or to compute the present
value of the delayed payments, the actual disparity is
greater than the $356, 769.00 identified by the district
Because the district court has not adequately articulated
reasons justifying its calculated $356, 769.00 disparity in
favor of Rodney Rebel, and Helen Rebel "receive[d]
property which is clearly worth less than the value ascribed
to it by the trial court, [we] cannot determine whether the
resulting property distribution is equitable."
Welder[ v. Welder ], 520 N.W.2d [813, 816 (N.D.
1994)]; see also Steckler[ v. Steckler ],
519 N.W.2d [23, 25 (N.D. 1994)]; Sateren[ v. Sateren
], 488 N.W.2d [631, 633 (N.D. 1992)]; Lucy[ v. Lucy
], 456 N.W.2d [539, 542 (N.D. 1990)]. We remand the case to
the district court to reconsider the property distribution.
Rebel, at ¶¶ 14-1 5. We therefore remanded
to the district court to adequately explain any disparity
favoring Rodney Rebel and to address its failure either to
award interest or to compute the present value of the delayed
payments to Helen Rebel.
4] On remand the case was assigned to a different judge
because the previous judge had retired. The district court
permitted the parties to present additional evidence
regarding valuation of the property at a three-day trial.
After that trial, the court found the parties' net
marital estate as of May 2, 2012, the date of their divorce,
was $1, 994, 086.30. The court found the value of the real
property was $1, 302, 000, valuing the farmland at $1, 210,
000 and the marital home at $92, 000. The court also found
the value of the livestock was $569, 750, of the crops and
feed was $135, 471, and of the farm machinery was $319, 065.
5] The district court allocated $279, 832.17 in assets and
$13, 111 of debt, for a net award of $266, 721.17, to Helen
Rebel, mainly consisting of the marital home, not subject to
a mortgage, and other monetary assets. The court allocated
$2, 281, 077.50 in assets and $553, 712.37 of debt, for a net
award of $1, 727, 365.13, to Rodney Rebel, mainly consisting
of the farmland and assets related to the farm operation.
Based on these values, the district court recognized that if
it were to make an "equal" division of the
property, Rodney Rebel would "owe" Helen Rebel
$730, 321.98. The court found, however, that $410, 207
constituted a fair and equitable cash payment under the
circumstances of this case.
6] In the initial divorce judgment, the previous judge had
awarded Helen Rebel $512, 534.78, of which Rodney Rebel had a
balance owing of $410, 207 at the time of the remand. On
remand, the court reaffirmed and adopted this remaining
amount. The court found the property division was not unequal
or inequitable because "if any higher cash payment
amount is ordered, Rodney's farm operation will not cash
flow, " and "this would certainly lead to
liquidation and the adverse tax consequences and sale costs
associated with liquidation." The court also found that
4.5 percent was a fair and appropriate interest rate and that
Rodney Rebel could admittedly "cash flow" an annual
payment of $33, 607.85. The court therefore ordered him to
make annual payments of about $33, 530 to Helen Rebel,
allowing him seventeen years to pay the $410, 207 cash award
with a 4.5 percent interest rate. The court also ordered that
"[n]either party shall be required to pay any spousal
support to the other now or at any time in the future
since the issue was never raised on appeal." An
amended judgment was entered distributing the parties'
marital property and assigning the debts.
7] Section 14-05-24(1), N.D.C.C., requires a district court
make an equitable division of the parties' marital estate
in a divorce action. "In making an equitable
distribution of marital property, a court must consider all
of the parties' assets." Rebel, 2013 ND
116, ¶ 7, 833 N.W.2d 442 (quoting Kosobud v.
Kosobud, 2012 ND 122, ¶ 6, 817 N.W.2d 384). After
including the parties' marital assets and debts in the
marital estate, the court considers the Ruff-Fischer
guidelines in distributing the assets:
[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.
Rebel, at ¶ 7 (quoting Kosobud, at
8] The district court is not required to make specific
findings on each Ruff-Fischer factor but must
explain the rationale for its decision. Kostelecky v.
Kostelecky, 2006 ND 120, ¶ 13, 714 N.W.2d 845. A
long-term marriage supports an equal property distribution.
Wagner v. Wagner, 2007 ND 101, ¶ 11, 733 N.W.2d
593. However, a property distribution need not be equal to be
equitable, and the district court must explain any
"substantial disparity" in its distribution.
Rebel, 2013 ND 116, ¶ 7, 833 N.W.2d 442. In
Rebel, at ¶ 8, we also discussed offsetting
periodic payments to preserve the family farm:
"We have upheld the distribution of farm assets to one
spouse with an offsetting monetary award to the other
spouse." Gibbon v. Gibbon, 1997 ND 210, ¶
7, 569 N.W.2d 707 (citation omitted). But, "[w]e have
consistently held that periodic cash payments without
interest awarded as part of a property distribution must be
discounted to present value in determining whether or not the
distribution is equitable." Welder v. Welder,
520 N.W.2d 813, 816 (N.D. 1994) (quotation and citations
omitted); see also Horner v. Horner, 2004
ND 165, ¶ 18, 686 N.W.2d 131; Steckler v.
Steckler, 519 N.W.2d 23, 25 (N.D. 1994); Sateren v.
Sateren, 488 N.W.2d 631, 633 (N.D. 1992); Lucy v.
Lucy, 456 N.W.2d 539, 542 (N.D. 1990); Pankow v.
Pankow, 371 N.W.2d 153, 157-58 (N.D. 1985).
9] The district court's distribution of property presents
a finding of fact, which we will not reverse unless the
court's findings are clearly erroneous. Rebel,
at ¶ 9. The district court's choice between two
permissible views of the evidence is not clearly erroneous.
Id. On appeal, we do not reweigh conflicts in the
evidence and will not reverse because we may have viewed the
evidence differently. Id. We give "due
regard" to the district court's opportunity to judge
the witnesses' credibility. Id.
10] Helen Rebel argues the district court erred in its
distribution of the marital estate by making an inequitable
allocation of the property to Rodney Rebel. She essentially
argues the court erred as a matter of law when it considered
liquidation of the assets to reduce Rodney Rebel's
monetary payments to pay her. She further contends the court
erred in its factual findings that there was evidence a
liquidation would have to occur if a higher cash payment were
11] Generally, "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." Holden v. Holden,
2007 ND 29, ¶ 10, 728 N.W.2d 312. We have recognized on
numerous occasions "the importance of preserving the
viability of a business operation like a family farm, "
Eberle v. Eberle, 2010 ND 107, ¶ 20, 783 N.W.2d
254 (quoting Gibbon v. Gibbon, 1997 ND 210, ¶
7, 569 N.W.2d 707), and "liquidation of an ongoing
farming operation or business is ordinarily a last
resort." Eberle, at ¶ 20 (quoting
Gibbon, at ¶ 7); see also Holden, at
¶ 14; Kostelecky, 2006 ND 120, ¶ 13, 714
12] This Court has therefore upheld distributing farm assets
to one spouse and awarding an offsetting monetary payment to
the other. Eberle, 2010 ND 107, ¶ 20, 783
N.W.2d 254; Gibbon, 1997 ND 210, ¶ 7, 569
N.W.2d 707. We have explained preserving the family farm is a
laudable purpose, to be achieved without detriment to the
other party, but should not be done at all costs so as to
engulf all other factors. See Marschner v.
Marschner, 2001 ND 4, ¶¶ 17-1 8, 621 N.W.2d
339; Linrud v. Linrud, 552 N.W.2d 342, 346 (N.D.
1996). We have also made clear, however, that "its
purpose is to avoid 'the potential for economic
hardship' if the farm is divided or sold."
Marschner, at ¶ 18 (quoting Gibbon, at
13] Helen Rebel argues that the district court erred as a
matter of law in considering any tax consequences of a
liquidation and erred in its factual findings that there was
evidence liquidation would be certain to occur.
14] We have recognized potential taxation matters are part of
the pragmatic effects of a marital property division that a
district court should consider when it is "properly
informed." Conzemius v. Conzemius, 2014 ND 5,
¶ 18, 841 N.W.2d 716; Wald v. Wald, 556 N.W.2d
291, 294 (N.D. 1996). In Linrud v. Linrud, 1998 ND
55, ¶ 15, 574 N.W.2d 875, this Court explained that
consideration of tax consequences should be limited and
reiterated four factors for the district court to consider:
While we acknowledge that a properly informed trial court
must consider tax effects in a divorce, the tax
consequences should only be considered when the liability is
certain to occur within a short time following the
dissolution. Kaiser v. Kaiser, 474 N.W.2d 63, 69
(N.D. 1991); see also Wald v. Wald, 556 N.W.2d 291,
294 (N.D. 1996); Fisher[ v. Fisher ], 1997 ND 176,
¶ 35, 568 N.W.2d 728. In Kaiser, we stated,
"[A] trial court in a divorce action should consider
potential taxes in valuing marital assets only if (1) the
recognition of a tax liability is required by the dissolution
or will occur within a short time; (2) the court need not
speculate about a party's future dealing with the asset;
(3) the court need not speculate about the possible future
tax consequences; and (4) the tax liability can be reasonably
Linrud, at ¶ 15 (quoting Kaiser, at
69-70) (emphasis added). Nevertheless, we have also said a
district court should alter its property distribution when it
concludes an adverse tax consequence would result that could
be avoided by a different equitable property allocation.
Conzemius, at ¶ 18; Kaiser, at 69;
Gronneberg v. Gronneberg, 412 N.W.2d 84, 92 (N.D.
15] Here, the district court found that the amount of the net
marital estate was misleading and considered whether
equitable liquidation was possible without liquidation:
Neither Rodney nor Helen advocate liquidation, but in the
Court's assessment the issue is whether an equitable
division is possible without liquidation. Helen requests part
of the farm land and argues that the farm operation would
still be feasible and cash flow for Rodney if she were
awarded the land she is requesting.
Helen's assertion flies in the face of the testimony of
Rodney's banker Dale Sayler, Vice President of Dakota
Community Bank of Hebron, North Dakota, who has been working
with Rodney for over 20 years. Mr. Sayler testified he was
familiar with Rodney's farm operation and financial
situation. In Mr. Sayler's opinion if the operation were
split, either land, machinery or livestock, the farm would ...