Rebel v. Rebel

2016 ND 144, 882 N.W.2d 256, 2016 N.D. LEXIS 145

• Court: North Dakota Supreme Court
• Decided: July 20, 2016
• Docket: 20150066
• Status: Published

Opinions

■ 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.

I

[¶ 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 át 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 property.

[¶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 (“[Tjhe 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 court.

Because the district court has not adequately articulated reasons justifying its calculated $356,769.00 disparity in favor of Rodney Rebel, and Helen Rebel “received 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 NW,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 ¶¶ 14-15. 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 “[njeither 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.

II

[¶ 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 ¶ 6).

[¶ 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 Homer v. Homer, 2004 ND 165, ¶ 18, 686 N.W.2d 131; Stecklerv. 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 evidénce 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.

Ill

[¶ 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 required.

[¶ 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 N.W.2d 845.

[¶ 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, ¶¶ 17-18, 621N.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 ¶ 7).

[¶ 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 cpnsid-' er 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 .u 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 predicted.”

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.1987). .

[¶ 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. Say-ler’s opinion if the operation were split, either land, machinery or livestock, the farm would no longer' cash flow. The present “efficiencies of scale” would be lost according to Sayler.

Mr. Sayler also testified in regard to various cash flow projections. Defendant’s Exhibits “C through H.” Mr. Say-ler pointed out that some of those projections that would not cash flow in 2011 would now cash flow based on the May 2, 2012 values. One item of note was a crop- insurance check for • $86,458.00 which turned out to be more than-anticipated (Plaintiffs Exhibit #44). This was applied to reduce Rodney’s loan balance,- on January 24, 2012. Mr. Sayler testified that in his opinion Rodney could cash flow á $400,000.00 to $500,000.00 cash payment depending on the variables. The variables would be the length of time to pay off, the interest rate, and, of course, commodity prices. He also .testified that he used a 5% interest rate in his projection because

that was the going rate in the fall of 2011. Implicit in Mr. Sayler’s testimony was that any amount over $500,000.00 would be very difficult for Rodney to cash flow and likely force him to liquidate.

[¶ 16] The district court found Rodney Rebel deserved the opportunity to preserve the family farm and his livelihood by making a cash payment to Helen Rebel. The court found because of the certainty of the tax consequences and expenses of sale that would result if the court ordered him to make a cash payment in excess of a sum which the current farming operation could “cash flow,” that the cash pay out amount needed to be adjusted accordingly. The court then considered the testimony of accountant Keith Anderson in-reaching an equitable cash payment amount:

Mr. Anderson testified that because of the nature of the assets awarded' to Rodney if he were forced to liquidate taxes and expenses of sale would result in reduction in his equity of about 38%. (Defendant’s Exhibit “W”). In contrast, in regard to the assets awarded to Helen there would be no or little liquidation costs. The sale of her residence would not be taxable nor were any other tax consequences brought to the attention of the Court in regard to the property she requested.

After reducing the net marital estate awarded to Rodney by 38% Rodney’s equity would be $1,070,966.38 ($1,727,-365.13 x 38% = $656,398.75) ($1,727,-365.13 - $656,398.75 = $1,070,966.36). Adding this amount to the assets awarded to Helen results in a total of $1,337⅜687.55 ($1,070,966.36 ■ + $266,721.17 = $1,337,687.55). Dividing this amount by two results in $668,843.78 which is the approximate •amount of an equal distribution after a forced liquidation. Subtracting what Helen has already received from this amount leaves a balance' due to Helen of $402,122.61.

This amount ($402,122.61) is remarkably close to the balance owed by Rodney under the Judgment entered in this action on May 2, 2012. In accordance with [the prior judge’s] decision Helén was awarded a cash payment amount of $512,534.78. After paying 20% or $102,506.00 down, Rodney was left with a balance owing of $410,207.00.

In this Court’s view, $410,207.00 is a fair and equitable cash settlement payment amount and is re-affirmed and adopted as the decision of this Court. Although this represents an increase of just over $8,000.00 ($410,207.00 - $402,122.61 = $8,084.39) in order to be the same as the cash amount owing after the down payment under [the prior judge’s] decision, the Court finds this adjustment to be equitable and appropriate. The primary reason in the 38% figure representing taxes and" costs of sale is an approximation and not an exact number. A second reason for the upward adjustment is that in this Court’s view [the prior judge] was not presented with the proper evidence and therefore did not take into account or explain the tax consequences and costs of sale of liquidation. Helen therefore should not be penalized and receive less than what she would be entitled to under [the prior judge’s] decision. [The previous decision] was reversed in part, because [the court] did not adequately explain the reasons justifying a disparity or unequal division. This Court does not find the above division as uhequal or [in]equitable because this Court finds that if any higher cash payment amount is ordered, Rodney’s farm operation will not cash flow. The Court finds that this would certainly lead to liquidation and the adverse tax consequences and sale costs associated with liquidation.

The district court also found that Helen Rebel had stated her preference for a cash buy out even though she may obtain less, that she acknowledged there would be tax consequences if the farm were liquidated, and that she acknowledged it would be fair to consider tax consequences when determining her share.

[¶ 17] Helen Rebel contends that while the district court found the net value of the marital estate was $1,994,086.30, the court erred as a matter of law in allocating the property after reducing the value of the net marital estate awarded to Rodney Rebel by thirty-eight percent. She argues “phantom” tax consequences are not relevant when considering a relevant basis for dividing marital property. She argues that the district court failed to analyze the tax consequences under the Linrud and Kaiser factors and erroneously considered a “hypothetical” tax consequence. She further asserts there was no testimony Rodney Rebel would have to liquidate the assets of the farm if he were required to make payments to equalize the allocation or. pay her one-half of the assets. She argues the court speculated regarding the tax consequences of liquidating the farming and ranching operation.

[¶ 18] Helen Rebel also argues the district court clearly erred in finding that any payment to her over $500,000 would result in liquidation of the farm assets. She had requested she receive two sections of land, in addition to the other property she ultimately was awarded, which she asserts was not traditional “Rebel” land and would have allowed for nearly an equitable allocation. She asserts none of Rodney Rebel’s witnesses testified any of her proposed allocations would result in a liquidation of assets, and he bears the burden of proving a liquidation would result from an equitable allocation of the assets and debts. She argues that although the court implicitly found liquidation based on the testimony of Rodney Rebel’s banker, no evidence supports that finding. She contends, therefore, the district court factually erred and its distribution was clearly erroneous.

[¶ 19] Rodney Rebel responds, however, that the district court’s distribution of the marital estate was not clearly erroneous and the court did not err in considering the tax consequences of a liquidation of the parties’ farm and ranch assets. He argues the court’s property distribution was fair and equitable under the circumstances. He contends neither he nor Helen Rebel advocated for the liquidation of the farm and ranch and the court did not “speculate” about possible future tax consequences because the tax liability was reasonably predicted. He asserts that the court knew he wanted to be able to continue to farm and ranch, passing it on to his children, and the court realized the tax liability and other liquidation costs were bound to occur if it did not consider the tax consequences in the equitable distribution.

[¶ 20] In its analysis, the district court essentially provides alternate rationales for deciding that the unequal distribution of assets is in fact equitable. On one hand, the court found the distribution roughly equal if the value of the property — largely related to the farm operation awarded to Rodney Rebel — was reduced in value by thirty-eight percent for liquidation. On the other hand, the court was also persuaded by the testimony of Rodney Rebel’s banking expert that the farm operation could only “cash flow” a payment of approximately $400,000 to $500,000. Relying on these alternate rationales, the court reaffirmed and adopted the remaining cash payment of $410,207 as fair and equitable. The court did this despite the payment being greater than what the court’s alternate calculation would have been in light of the “liquidation” discount. Nonetheless, the court adopted the “higher” number based on what the prior district court judge had awarded before remand.

[¶ 21] Although Helen Rebel disagrees with the district court’s factual inferences, there is evidence in the record to support the court’s findings, and we will not reweigh the evidence or reassess the credibility of the witnesses. We conclude the district court has adequately explained its distribution of the marital property. We are not left with a definite and firm conviction the court made a mistake in distributing the parties’ marital property, and we conclude the court’s distribution is not clearly erroneous.

IV

[¶ 22] Helen Rebel asserts the district court made a simple mathematical error in its addition regarding the amount of the. parties’ farm assets. She asserts the total amount of the farm machinery and equipment should have been $346,810, and there was a $27,745 error in Rodney Rebel’s favor. Rodney Rebel contends, however, the district court did not make a $27,745 error in calculating the value of the parties’ machinery and equipment because Helen Rebel has overlooked the fact that the court adjusted the value of those items for depreciation.

[¶ 23] Here, the district court found the total value of the parties’ machinery and equipment was $346,810, but made a specific finding regarding its computation for the depreciation of those assets based on the evidence presented on remand:

In his updated appraisal, Mr. Dvorak included an 8% depreciation deduction. This deduction was based on a 16% average depreciation for tax purposes for one year. The amount of 8% represents one-half a year or the approximate time from the first trial to the entry of the Judgment of divorce. The Court accepts this adjustment and calculates the 8% deduction as $27,744.80 ([$]346,-810.00 x 8% = $27,744.80). After subtracting this amount from $346,810.00 this Court finds the value of the parties’ machinery and equipment to be $319,065.20 on May 2, 2012, the date of the divorce.

[¶ 24] On this record, we conclude the district court findings explain its computation regarding depreciation and the court did not clearly err regarding the amount of the parties’ farm machinery and equipment.

V

[¶ 25] Helen Rebel argues the district court failed to award proper interest on the delayed cash payments she was awarded. She contends the court should have awarded interest at the judgment interest rate of 6.5 percent under N.D.C.C. § 28-20-34.

[¶26] When a marital property distribution includes periodic cash payments from one spouse to another, the district court has broad authority to provide for the payment of interest to achieve an equitable distribution of the property. Adams v. Adams, 2015 ND 112, ¶ 19, 863 N.W.2d 232; see also Dick v. Dick, 434 N.W.2d 557, 559 (N.D.1989); Klitzke v. Klitzke, 308 N.W.2d 385, 390 (N.D.1981); Rudel v. Rudel, 279 N.W.2d 651, 656 (N.D. 1979). A court is not limited to awarding interest at the legal rate under N.D.C.C. § 47-14-05, but may award interest at any appropriate rate, beginning on any appropriate date. Dick, at 559. “When a district court may do something, it is generally a matter of discretion.” Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d .' A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination; Krueger v. Grand Forks Cty., 2014 ND 170, ¶ 13, 852 N.W.2d 354. “The party seeking relief must show that the court positively abused its discretion and not that the court made a ‘poor? decision.” Id,

[¶ 27] Helen Rebel argues that, although the district court awarded interest at a rate of 4.5 percent, testimony at trial showed the bank’s interest rate was 5 percent and judgment interest, was approximately 6.5 percent. She contends that because she is “financing” Rodney Rebel over the course of more than ten years, •she should also be entitled to receive her interest at the same rate as the judgment interest rate. Rodney Rebel argues the court did not err in awarding interest on the delayed cash payments and her reliance on N.D.C.C. § 28-20-34 and Dick, 434 N.W.2d 557, is misplaced.

[¶ 28] In Dick, 434 N.W.2d at 559, this Court held that the district court “may award interest at any appropriate rate, commencing on any appropriate date,- or may deny interest altogether.”- However, as we have noted in ¶ 8, periodic cash payments without interest awarded as part of a property distribution must be discounted to present value when determining whether the distribution is equitable. This Court in Dick also explained when N.D.C.C. § 28-20t34 properly applies:

If, however, the judgment contains no reference to interest on a monetary award constituting division of property, Section 28-20-34, N.D.C.C., comes into play, and- the award draws - interest at -the1 statutory rate for judgments. We ■ further conclude that, where the trial court specifies a future date when a lump sum payment is due, interest accrues on the judgment from that date. This is consistent with the general rule that interest on unpaid installments of alimony accrues on the date they become due. ' ‘ "

Dick, at 559 (citations omitted).

[¶ 29] Here, the amended judgment provides for interest on the monetary award to Helen Rebel. The district court compromised between the parties’ interest rate proposals, concluding 4.5 percent was a fair and appropriate rate. The court required Rodney Rebel to pay interest of 4.5 percent on the remaining cash award of $410,207, retroactive to May 2, 2012. As discussed, the district court has discretion to award interest at any appropriate rate commencing at any appropriate date. Based on our review of the record, we conclude the district court did not abuse its discretion.

.VI

[¶ 30] We have considered Helen Rebel’s remaining ■ arguments and conclude they aye either unnecessary to our decision or without merit. The amended judgment is affirmed. .

[¶ 31] DALE V. SANDSTROM, DANIEL J. CROTHERS and LISA FAIR McEVERS,JJ.