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.
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.”
3
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-
4
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.
5
[¶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.
6
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.
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