Lippert v. Lippert, 10591

• Citation: 353 N.W.2d 333
• Decision Date: 13 August 1984
• Docket Number: No. 10591,10591
• Parties: Sharon E. LIPPERT, Plaintiff and Appellee, v. Theodore R. LIPPERT, Defendant and Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 333

353 N.W.2d 333

Sharon E. LIPPERT, Plaintiff and Appellee, v. Theodore R. LIPPERT, Defendant and Appellant.

Civ. No. 10591.

Supreme Court of North Dakota.

Aug. 13, 1984.

Rosenberg & Baird, Bismarck, for plaintiff and appellee; argued by LaRoy Baird, III, Bismarck.

Bair, Brown & Kautzmann, Mandan, for defendant and appellant; argued by Dwight C.H. Kautzmann, Mandan.

ERICKSTAD, Chief Justice.

Theodore R. Lippert has appealed from the judgment in this divorce action brought by Sharon E. Lippert. We affirm in part, reverse in part, and remand for further proceedings.

Theodore and Sharon were married on September 4, 1957. The next day they moved onto a farm owned by Theodore's mother. Neither party brought any assets of substantial value to the marriage. Both parties have worked hard to accumulate what is now a substantial marital estate.

For a number of years, Theodore and Sharon farmed the land under an arrangement whereby Theodore's mother received one-half of the crop and Theodore and Sharon received one-half. In 1964, Sharon inherited $34,000, the interest on which was spent on family needs. In 1969, Theodore purchased the farm from his mother under a contract for deed for $31,500. The land was paid for with income generated by the parties in farming the land and with $13,466.09 that Theodore inherited upon his mother's death in 1976.

Of four children born of the marriage, one daughter is still a minor. Sharon was awarded custody of the minor daughter and Theodore has been required to pay child support.

As to the parties' property, the trial court made the following finding of fact:

"The parties own certain properties and owe marital debts. The court determines that the parties presently own real property and improvements thereon of a value of $330,000.00. They own equipment and machinery of a value of $26,400.00; grain of a value of $20,000.00; livestock of a value of $23,000.00; goods and furnishings of a value of $3,600.00; capital equipment of a value of $2,300.00; shop equipment of a value of $7,200.00; guns and equipment of a value of $1,000.00; cash and other liquid securities in the name of Plaintiff in the sum of $34,000.00 and in the name of Defendant in the sum of $26,500.00; making a total property valuation of $474,000.00. The parties have a marital debt in the sum of $4,000.00 leaving a net property valuation of $470,000.00.... The assets, both real and personal, of the parties shall be divided equally."

Under the property distribution contained in the judgment, Sharon was allotted: (1) one-half of the mineral interests owned by the parties; (2) several items of personal property of relatively modest value; (3) "those assets presently in her name", which consist of the $34,000 she inherited in 1964; (4) a cash payment from Theodore of $40,000 within 120 days after entry of the judgment; and (5) annual payments from Theodore of $10,000 for 20 years with no interest on the unpaid balance. Theodore retained the rest of the parties' property and was required to assume the marital debts, pay child support, include the minor child in a medical insurance plan, and pay all medical expenses incurred on behalf of the minor child.

The only issues raised are whether or not the trial court erred in placing a higher value on the real property than was testified to at trial, and whether or not the property distribution is equitable.

Section 14-05-24, N.D.C.C., provides that "[w]hen a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, ..."

The trial court's determination on the matter of property distribution is treated as a finding of fact which will not be set aside on appeal unless it is clearly erroneous. Jondahl v. Jondahl, 344 N.W.2d 63 (N.D.1984). We also said in Jondahl, supra, 344 N.W.2d at 67:

"In order to make an equitable distribution, the trial court must first determine the net worth of the property owned by the parties. Graves v. Graves, 340 N.W.2d 903, 906 (N.D.1983). We have said that there is no requirement that the trial court place a value on the individual items making up the net worth of the parties; but when the trial court does act to set such values, as in the instant case, there should exist evidence in the record supporting the value placed upon the property. Svetenko v. Svetenko, 306 N.W.2d 607, 610 (N.D.1981)."

Our review of the record has left us with a definite and firm conviction that a mistake has been made as to the valuation of the parties' real property and improvements thereon, which the trial court valued at $330,000. We are unable to find any evidence to support that value.

The highest value placed on the parties' real property and improvements thereon by any witness at trial was $310,000. There is no evidentiary support for a valuation in excess of $310,000 and the trial court's finding of a value of $330,000 is, therefore, clearly erroneous. Beck v. Lind, 235 N.W.2d 239, 249 (N.D.1975). There being no evidence that the value of the property was more than $310,000, we ascribe that value to it. See Gooselaw v. Gooselaw, 320 N.W.2d 490, 491-492 (N.D.1982).

Because the property distribution made by the trial court is based in part upon an erroneous valuation of the major asset of the parties, we remand to allow the trial court to make an initial determination on the basis of a correct valuation of the parties' property. Modification of the value ascribed to the parties' real property and improvements thereon by $20,000, which alone is not a substantial amount in an estate of this size, may require modification of all of the provisions relating to an equitable distribution of the property. See Webber v....