Berdahl v. Berdahl

• Decision Date: 07 July 2022
• Docket Number: 20210320
• Citation: 2022 ND 136
• Parties: Cody Berdahl, Plaintiff and Appellant v. Joleen Berdahl, Defendant and Appellee
• Court: North Dakota Supreme Court

2022 ND 136

Cody Berdahl, Plaintiff and Appellant v. Joleen Berdahl, Defendant and Appellee

No. 20210320

Supreme Court of North Dakota

July 7, 2022

Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Daniel S. El-Dweek, Judge.

Elizabeth A. Elsberry, Bismarck, ND, for plaintiff and appellant.

Harry M. Pippin, Williston, ND, for defendant and appellee.

OPINION

McEvers, Justice.

[¶1] Cody Berdahl appeals from a divorce judgment entered following a bench trial in his divorce action against Joleen Berdahl. He argues the district court erred in distributing the marital property, in ordering him to pay spousal support to Joleen Berdahl, and in awarding Joleen Berdahl credit for attorney's fees. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I

[¶2] Cody Berdahl and Joleen Berdahl were married in 1997. The parties separated on August 1, 2019, and Cody Berdahl sued for divorce in November 2019. A two-day trial was held in July 2021. At the time of trial, Cody Berdahl was 50 years of age and Joleen Berdahl was 49. They lived in Watford City North Dakota. Cody Berdahl was part owner of Dirty Birds, an oilfield service company. As part owner, he received work-related benefits including a phone, a vehicle, and health insurance. Joleen Berdahl worked at Dirty Birds as its bookkeeper from 2011 until fall 2019. At trial, she admitted she failed to timely remit payroll taxes to the Internal Revenue Service for the business. Joleen Berdahl had a high school education and eighteen years of bookkeeping experience. After the parties separated, she worked for the McKenzie County School District in a seasonal aide position.

[¶3] The district court heard testimony from both parties regarding the accumulated assets and debts and the conduct attributing to the breakdown of this long-term marriage. Both parties drank alcohol throughout the marriage. Joleen Berdahl's alcohol consumption became problematic resulting in her seeking and successfully completing outpatient alcohol treatment.

[¶4] Following trial, the district court issued its Memorandum of Opinion, Findings of Fact, Conclusions of Law and Order for Judgment and attached Exhibit A outlining its property distribution. The court included post- separation property in the marital estate. The court valued Dirty Birds' accounts receivable at $100,000, based on Joleen Berdahl's testimony, and included that amount in its property distribution. The court permitted Joleen Berdahl to remain in the marital home "with Cody Berdahl continuing to pay the mortgage, insurance, taxes, and utilities on the home until it sells." The court found both parties engaged in conduct that "affected the parties directly and indirectly, financially," and no harm resulted to Dirty Birds due to Joleen Berdahl's actions. The court awarded Joleen Berdahl spousal support of $1,000 per month for ten years "to assist her with her financial needs and to rehabilitate her into becoming self-sustaining," to begin the month after the marital home sells or Joleen Berdahl voluntarily leaves the home. Finally, the court ordered each party be responsible for their own attorney's fees, but credited Joleen Berdahl with a $20,000 reduction in the marital estate for her legal fees in its property distribution. The court entered judgment, and Cody Berdahl appeals.

II

[¶5] Cody Berdahl argues the district court erred in distributing the marital property by finding Dirty Birds' accounts receivable had a value of $100,000, by failing to properly consider Joleen Berdahl's conduct, by including valuations for property acquired post-separation in the marital estate, and by failing to require Joleen Berdahl to reimburse him for payment of post-separation bills.

[¶6] When granting a divorce, a district court is required to value the parties' property and debts and "make an equitable distribution." N.D.C.C. § 14-05-24(1) (2017).^[1] This Court's standard of review for a district court's marital property distribution is well established:

This Court reviews a district court's distribution of marital property as a finding of fact, and will not reverse unless the findings are clearly erroneous. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made." We view the evidence in the light most favorable to the findings, and the district court's factual findings are presumptively correct. Valuations of marital property within the range of the evidence presented are not clearly erroneous. A choice between two permissible views of the evidence is not clearly erroneous if the district court's findings are based either on physical or documentary evidence, or inferences from other facts, or on credibility determinations.

Holm v. Holm, 2017 ND 96, ¶ 4, 893 N.W.2d 492 (internal citations omitted).

[¶7] In makings its distribution, the district court considers the Ruff-Fischer factors, which include:

The 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.

Quamme v. Quamme, 2021 ND 208, ¶ 14, 967 N.W.2d 452 (quoting Orwig v. Orwig, 2021 ND 33, ¶ 35, 955 N.W.2d 34); Ruff v. Ruff, 52 N.W.2d 107 (N.D. 1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D. 1966). Although the court is not required to make specific findings on each Ruff-Fischer factor, we must be able to determine the reasons for the court's decision. Quamme, at ¶ 14.

A

[¶8] Cody Berdahl first argues the district court erred in valuing accounts receivable for Dirty Birds at $100,000, based solely on Joleen Berdahl's testimony.

[¶9] As noted, a district court's valuations of marital property are findings of fact and will not be reversed on appeal unless they are clearly erroneous. Wald v. Wald, 2020 ND 174, ¶ 11, 947 N.W.2d 359. A court's valuations of marital property are not clearly erroneous if they are within the range of evidence presented. Id. "In a bench trial, the district court determines credibility issues, which we will not second-guess on appeal." Id. at ¶ 27. The value the court gives to marital property depends on the evidence presented. Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 12, 673 N.W.2d 601.

[¶10] The district court valued Dirty Birds' accounts receivable at $100,000. Joleen Berdahl testified she served as Dirty Birds' bookkeeper and Dirty Birds' accounts receivable were "well over $100,000" at the time of separation. Cody Berdahl offered no evidence to rebut Joleen Berdahl's testimony. In fact, Cody Berdahl testified that, although Dirty Birds had customers owing money, he did not know why those amounts were not listed on the parties' property and debt listings and he did not look for values of the accounts receivable before submitting his property and debt listing. Cody Berdahl further testified he had no basis to dispute the amount Joleen Berdahl provided. Because the court's valuation falls within the range of evidence presented, we conclude the court's valuation was not clearly erroneous.

B

[¶11] Cody Berdahl next argues the district court erred by failing to properly consider evidence about Joleen Berdahl's conduct at Dirty Birds and her alcohol abuse.

[¶12] The Ruff-Fischer guidelines allow a district court to consider the parties' conduct during marriage, including fault. Weigel v. Weigel, 2015 ND 270, ¶ 22, 871 N.W.2d 810. The court may properly consider both economic and non-economic fault in dividing marital property. Amsbaugh, 2004 ND 11, ¶ 34. "Economic misconduct is misconduct that results in a wasted asset or in the reduction of the net marital estate." Gerving v. Gerving, 2020 ND 116, ¶ 18, 943 N.W.2d 797. Further, "uncontrolled drinking contributing to the breakdown of the marriage, even if involving alcoholism, can be considered a matter of fault." Amsbaugh, at ¶ 34. A determination of economic or non- economic fault is a finding of fact, subject to the clearly erroneous standard of review. Gerving, at ¶ 18.

[¶13] The district court found both parties engaged in activity that affected the parties financially, directly and indirectly. The court found Joleen Berdahl did not gain monetarily from her misconduct related to Dirty Birds' tax filings and there was no evidence Dirty Birds was harmed financially by her actions. Regarding Joleen Berdahl's alcohol abuse, testimony was elicited that both parties drank excessively during the marriage. Joleen Berdahl testified she had recently undergone outpatient treatment and was participating in Alcoholics Anonymous. The court did not make a finding for either party related to alcohol abuse. The evidence presented is such that the court could have reasonably concluded both parties must share responsibility for the failure of the marriage. See Nastrom v. Nastrom, 284 N.W.2d 576, 582 (N.D. 1979) (trial court's finding that both parties contributed equally to the breakdown of marriage, based on excessive drinking and heated arguments, was not clearly erroneous). Based on the record, the court's findings on the conduct of each party during the marriage are supported by the evidence and are not clearly erroneous.

C

[¶14] Cody Berdahl argues the district court erred by including property acquired post-separation in the marital...