Gerving v. Gerving , 2021 ND 50 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 24, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 50Ben Gerving, Plaintiff and Appellant
v.
Janet Gerving, Defendant and Appellee
and
State of North Dakota Statutory Real Party in Interest
No. 20200291
Appeal from the District Court of Oliver County, South Central Judicial
District, the Honorable John W. Grinsteiner, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Justin D. Hager, Bismarck, ND, for plaintiff and appellant.
Erica J. Shively, Bismarck, ND, for defendant and appellee.
Gerving v. Gerving
No. 20200291
Crothers, Justice.
[¶1] Ben Gerving appeals from an amended divorce judgment and parenting
plan. He argues the district court’s distribution of marital assets and debts was
clearly erroneous. Janet Gerving argues the appeal is frivolous and she is
entitled to costs and attorney’s fees. The amended divorce judgment and
parenting plan are affirmed, and Janet Gerving’s request for attorney’s fees is
denied.
I
[¶2] Ben Gerving and Janet Gerving were married in 2004. The parties have
two minor children and own and operate a farm that has been in Ben Gerving’s
family for three generations. Ben Gerving is employed as a road grader in
Oliver County, and Janet Gerving is employed as a certified nursing assistant
at Elm Crest Nursing Home in New Salem, North Dakota.
[¶3] A divorce trial was held on May 7, 2019. The district court issued its
findings of fact, conclusions of law, and order for judgment on June 12, 2019.
The court found the facts supported an equal division of the marital estate but
that the law disfavored breaking up family farms. Therefore, the court
awarded Ben Gerving the entire farm, including the homestead, livestock, and
equipment. The court noted the award would only become a windfall to Ben
Gerving if he sold the land, and in the event he sold the land, the proceeds were
to be distributed equally between Ben Gerving and Janet Gerving. Janet
Gerving was awarded her retirement account and annual property
equalization payments of $6,000 over 16 years.
[¶4] Janet Gerving appealed the district court’s original judgment, and this
Court reversed. Gerving v. Gerving, 2020 ND 116, 943 N.W.2d 797. This Court
concluded Ben Gerving was awarded approximately 90% of the marital estate,
that distribution was not equitable and the district court clearly erred by
retaining jurisdiction over a final property distribution.
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[¶5] On remand, the district court noted it had a choice to either force a sale
of the land and divide the proceeds or divide the land with an equity payment
stretched out over a number of years. In choosing the latter, the court awarded
Janet Gerving two parcels of land and Ben Gerving the other two parcels of
property with a considerably higher value. Ben Gerving also received the farm
equipment and animals, and the farm’s operating loan and debt. Ben Gerving
was ordered to make equalization payments to Janet Gerving over 20 years.
The court noted its new distribution ultimately awarded each party half of the
assets. This new distribution was reflected in the amended divorce judgment
and parenting plan, issued September 15, 2020. Ben Gerving appeals from that
judgment.
II
[¶6] Ben Gerving argues the district court’s property distribution on remand
should leave this Court with a definite and firm conviction a mistake has been
made. Ben Gerving claims the court’s order makes selling the farm an eventual
certainty, that forcing the sale of a family farm should be an absolute last
resort, and that doing such was clearly erroneous. We conclude the evidence
supports the district court’s findings, the decision on property division was
adequately explained, we are not left with a definite and firm conviction a
mistake was made, and the court’s decision is not clearly erroneous. We
summarily affirm under N.D.R.App.P. 35.1(a)(2).
III
[¶7] Janet Gerving argues she is entitled to costs and attorney’s fees under
Rule 38 of the North Dakota Rules of Appellate Procedure. She asserts Ben
Gerving’s arguments on appeal are so groundless and devoid of merit that she
should be awarded costs and fees.
[¶8] Rule 38 of the North Dakota Rules of Appellate Procedure provides: “An
appeal is frivolous if it is flagrantly groundless, devoid of merit, or
demonstrates persistence in the course of litigation which could be seen as
evidence of bad faith.” Larson v. Larson, 2002 ND 196, ¶ 13, 653 N.W.2d 869.
“When reviewing the frivolous nature of an appeal, we consider whether there
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is such a ‘. . . complete absence of facts and law that a reasonable person might
not have thought this Court would render a favorable judgment on appeal.’”
Williams v. State, 405 N.W.2d 615, 620 (N.D. 1987).
[¶9] Janet Gerving argues Ben Gerving provides no good faith legal argument
to support his contention the district court’s property distribution should be
overturned. She asserts Ben Gerving presents only arguments previously
decided by this Court in Gerving I. We disagree. The issues in this appeal and
Gerving I are different due to the change in property distribution upon remand.
Ben Gerving presented an argument this Court should be left with a definite
and firm conviction a mistake was made as to the distribution on remand. We
conclude Ben Gerving’s arguments on appeal were not so groundless or devoid
of merit that they were frivolous. Janet Gerving’s request for attorney’s fees is
denied.
IV
[¶10] The amended divorce judgment and parenting plan are affirmed, and
Janet Gerving’s request for attorney’s fees is denied.
[¶11] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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