Volson v. Volson, 950225

Decision Date01 February 1996
Docket NumberNo. 950225,950225
Citation542 N.W.2d 754
PartiesSteven E. VOLSON, Plaintiff and Appellant v. Kathrin A. VOLSON, Defendant and Appellee. Civil
CourtNorth Dakota Supreme Court

Donald T. Campbell (argued), of Pringle & Herigstad, P.C., Minot, for plaintiff and appellant. Appearance by Steven E. Volson.

Walter Mathias Lipp, McClusky, for defendant and appellee. Submitted on brief.

NEUMANN, Justice.

Steven Volson appeals from a divorce decree, alleging the trial court erred in dividing the parties' marital property. We hold the trial court's valuation of the real property was clearly erroneous, and we reverse and remand for a redetermination of the property distribution.

Steven and Kathrin Volson were married in June 1990. One daughter, Julie Ann, was born of the marriage. During the marriage, the parties acquired a 400-acre farmstead, originally owned by Steven's mother and father, on which they raised cattle. In September 1993 Steven filed for a divorce. At the time of trial Steven had moved off the farmstead and was working as a truck driver. Kathrin remained on the farmstead, with Julie Ann, and continued to operate the farmstead and cattle operation.

The trial court entered a judgment on June 2, 1995, granting Steven a divorce from Kathrin on the grounds of irreconcilable differences. The trial court valued the gross marital estate at $110,555 and valued the 400-acre farmstead, the primary asset, at $60,000. The court awarded Kathrin property with a gross value of $64,485 and a net value of $39,407. Steven received the balance of the marital property, with a gross value of $46,070 and a net value of $34,719. As part of the property distribution, Steven and Kathrin each received an undivided onehalf interest in the farmstead as tenants in common. The court valued each parties' interest in the farmstead at $30,000, or one- half of its total value. However, the court specifically made Steven's interest "subject to [Kathrin's] right of possession" in it. The court decreed, "[Kathrin] will have the right to receive all rents and profits from the farm without paying any rents to [Steven] as long as she resides on the farm and operates the farm, maintains the farm and pays all of the real estate taxes. Leasing a part of the land for cash rent is considered operating the farm." The court gave Steven no right to receive any rent or profits from the farmstead unless and until Kathrin decides to live elsewhere or not operate the farm. Steven appealed from the judgment, asserting this property distribution is inequitable.

Upon granting a divorce, the trial court is required to distribute the parties' real and personal property as may seem just and proper. Section 14-05-24, N.D.C.C. The court must make an equitable distribution of the property, depending on the facts and circumstances of each individual case. Heley v. Heley, 506 N.W.2d 715 (N.D.1993). To make an equitable distribution the court must first determine the net worth of the parties' assets. Schatke v. Schatke, 520 N.W.2d 833 (N.D.1994). A trial court's findings on the valuation and distribution of marital property will not be set aside on appeal unless they are clearly erroneous under Rule 52(a), N.D.R.Civ.P., or they are induced by an erroneous conception of the law. Welder v. Welder, 520 N.W.2d 813 (N.D.1994). A finding of fact is determined to be clearly erroneous when the reviewing court, on the entire...

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9 cases
  • Marschner v. Marschner
    • United States
    • North Dakota Supreme Court
    • January 30, 2001
    ...the facts and circumstances of each case. Zuger v. Zuger, 1997 ND 97, ¶ 6, 563 N.W.2d 804 (citing N.D.C.C. § 14-05-24; Volson v. Volson, 542 N.W.2d 754, 756 (N.D.1996)). The findings of fact of the trial court "are presumptively correct, and the complaining party bears the burden of demonst......
  • Curtiss A. Hogen Trust B v. Hogen
    • United States
    • North Dakota Supreme Court
    • May 8, 2018
    ...shares belies an intent to vest immediate ownership of the Trust in the beneficiaries as tenants in common. See Volson v. Volson , 542 N.W.2d 754, 756 (N.D. 1996) (stating chief attribute of tenancy in common is unity of possession by joint owners, with each sharing a common right to posses......
  • Basin Elec. Power Co-op. v. ANR Western Coal Development Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 28, 1997
    ...considered owners of severable portions of mixture). A tenancy in common is an undivided interest in property. See Volson v. Volson, 542 N.W.2d 754, 756 (N.D.1996); Roger A. Cunningham et al., The Law of Property § 5.2, at 190-91 & n. 29 (2d ed.1993). In this case, a tenancy in common impli......
  • Strand v. Rasmussen
    • United States
    • Iowa Supreme Court
    • July 17, 2002
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