from the District Court of Williams County, Northwest
Judicial District, the Honorable Joshua B. Rustad, Judge.
L. Ellison, West Fargo, N.D., for plaintiff, appellee, and
Malcolm Pippin, Williston, N.D., for defendant, appellant,
1] Terry Smith appeals, and Cindie Innis-Smith cross-appeals,
an amended judgment granting the parties a divorce, dividing
the parties' marital property, and awarding Innis-Smith
spousal support. Smith also appeals an order denying his
motion to reopen the record to present additional evidence
relating to the values of certain items of marital property.
We affirm in part, reverse in part, and remand.
2] Smith and Innis-Smith began dating in 1994, were engaged
in 1996, and married in March 2006. Smith worked as a welder,
had a farming and cattle operation, and received income
through a gravel pit, water depot, and mineral interests.
Smith also had an interest in his mother Jacqueline
Smith's revocable trust. Innis-Smith assisted with
Smith's farming and cattle operations, did some
bookkeeping for Smith, and helped care for his parents.
3] Innis-Smith sued for a divorce in 2011. At the April 2013
trial, Innis-Smith was sixty years old and Smith was
sixty-one. In May 2015, the district court issued its
memorandum opinion and valued the net marital estate at $7,
937, 804.55. The court awarded Smith $7, 400, 607.55 in
property and Innis-Smith $558, 206.50, plus a $3, 431, 705
cash payment from Smith to equalize the property
distribution. The court also awarded Innis-Smith $4, 000 per
month in permanent spousal support.
4] The district court did not include Smith's interest in
his mother's trust in the marital estate. Jacqueline
Smith died before trial, and the court concluded that under
amendments she made to the trust during the divorce, Terry
Smith's interest lapsed to his daughters when Jacqueline
Smith died. The court held Smith had no interest in the trust
at his mother's death.
5] After the district court issued its May 2015 decision,
Smith moved the court under N.D.R.Civ.P. 59(j) to reopen the
record to present additional evidence relating to the values
of the water depot and mineral interests. Smith argued the
values of the water depot and mineral interests dramatically
decreased between the April 2013 trial and May 2015 decision.
Smith attached an affidavit and exhibits purporting to show
the value of the water depot decreased from $4, 335, 000 to
$1, 220, 215, and the value of the mineral interests
decreased from $1, 113, 950 to $598, 637. The court denied
Smith's motion after a hearing.
6] Smith argues the district court erred in its distribution
of the marital property.
7] A district court's distribution of marital property is
a finding of fact and will not be overturned unless it is
clearly erroneous. Lewis v. Smart, 2017 ND 214,
¶ 10, 900 N.W.2d 812. A factual finding is clearly
erroneous if it is induced by an erroneous view of the law,
if there is no evidence supporting it, or if, although there
is some evidence to support it, on the entire record, we are
left with a definite and firm conviction a mistake has been
made. Id. "We view the evidence in the light
most favorable to the findings, and the district court's
factual findings are presumptively correct." Adams
v. Adams, 2015 ND 112, ¶ 13, 863 N.W.2d 232. The
clearly erroneous standard of review does not allow us to
reassess the credibility of witnesses, reweigh the evidence,
or substitute our judgment for a court's initial
decision. Hoverson v. Hoverson, 2013 ND 48, ¶
8, 828 N.W.2d 510. A choice between two permissible views of
the evidence is not clearly erroneous if the court's
findings are based on evidence in the record, inferences from
other facts, or credibility determinations. Stephenson v.
Stephenson, 2011 ND 57, ¶ 7, 795 N.W.2d 357.
8] Under N.D.C.C. § 14-05-24(1), a district court must
equitably distribute the parties' property and debts.
After including all of the marital assets and debts, the
court must apply the Ruff- Fischer guidelines in
dividing the property. Lewis, 2017 ND 214, ¶
10, 900 N.W.2d 812. Under the Ruff- Fischer
guidelines, the court considers:
[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.
Lewis, at ¶ 10 (quoting Rebel v.
Rebel, 2013 ND 116, ¶ 7, 833 N.W.2d 442).
9] Smith argues the district court clearly erred by equally
distributing the marital property. Smith claims the
parties' short marriage does not justify an equal
10] Here, in distributing the parties' marital property,
the district court made findings under the Ruff-
Fischer guidelines. In relevant part, the court
discussed the length of the parties' relationship,
finding the circumstances of this case supported an equal
division of property:
The testimony established that the parties began dating in
1994, and the relationship became serious fairly quickly with
a promise ring purchased by Terry for Cindie in 1994 and an
engagement ring being purchased in 1996. As early as 1996,
the parties entertained family members at Terry's farm on
holidays and that Cindie began living at Terry's farm in
1997 along with her son. Cindie asserts that the parties made
financial decisions together such as deciding to remodel the
house, building a garage and patio and creating a teardrop
garden. Cindie further indicated she worked in the yard and
assisted with Terry's cattle and farming operation and
did some bookkeeping for Terry's business. Cindie also
helped care for Terry's parents and helped plan their 50
th anniversary party. The parties separated from 2001-2002.
The Court finds that the circumstances of this case support
nearly equal division of the marital property even if
characterized as short term, and that it would not be
equitable to award each party what they brought into the
marriage. It is also appropriate to consider all the parties
time together as they in essence lived like a married couple
from 1997-2011, except for the separation previously
addressed from 2001-2002. Horner [v. Horner], 2004
ND 165, ¶¶ 12, 13, 686 N.W.2d 131. All assets, with
the exception of the Jacqueline Smith Trust property
addressed later, will be included in the marital estate and
will be fairly and equitably distributed by looking at the
Ruff- Fischer Guidelines.
11] As discussed by the district court, Horner
stated, "It is appropriate for a court to consider all
of the parties' time together in dividing the marital
property when parties live together and then marry."
Horner v. Horner, 2004 ND 165, ¶ 13, 686 N.W.2d
131. The court found the parties lived like a married couple
from 1997-2011, with an intervening separation in 2001-2002.
The court's remaining findings relating to the division
of property have support in the record. We cannot conclude
the court clearly erred by equally dividing the parties'
property. We are not left with a definite and firm conviction
a mistake has been made.
12] Smith argues the district court erred by not reopening
the record to receive additional evidence relating to the
values of the water depot and mineral interests ...