author: RANDALL, Judge.

text:
    Juris CURISKIS, Appellant, v. CITY OF MINNEAPOLIS, Respondent.
    No. A06-982.
    Court of Appeals of Minnesota.
    April 10, 2007.

      Juris Curiskis, Minneapolis, MN, pro se appellant.
    Jay M. Heffern, Minneapolis City Attorney, Edward A. Backstrom, Assistant City Attorney, Minneapolis, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge; TOUSSAINT, Chief Judge; and HUDSON, Judge.
   OPINION

RANDALL, Judge.

On appeal from a summary judgment for the city in this special-assessment dispute, pro se appellant argues that the district court miscalculated the filing deadline for challenging a special assessment when it ruled that appellant’s appeal was untimely and, therefore, the district court lacked jurisdiction to address the challenge. We agree and reverse.

FACTS

On April 19, 2005, the City of Minneapolis sent notice of a public hearing, to be held May 3, 2005, to residents regarding the Bryn Mawr renovation project. The street reconstruction project included new curbs, gutters, and other paving improvements. The city sought to divide project costs between general city funds and special assessments to benefited properties.

The city’s notice informed recipients that a public hearing would be conducted “pursuant to Chapter 10, Section 6 of the Minneapolis City Charter.” Further, the notice assured recipients that “all written and oral objections” would be heard, and provided the following language regarding written objections and the appeals process:

At the time of the public hearing, the Committee will provide an opportunity for all interested persons to be heard regarding the proposed assessments and the Committee will consider all written and oral objections and statements.
Should a person be unable to attend and wishes to object or comment, please send a written objection or statement in sufficient time for it to arrive prior to the time of the public hearing ... If the proposed assessment is adopted or adopted as modified and the owner of the property is dissatisfied with the assessment against the property, the owner may appeal the assessment to the District Court. To appeal, there must be a written Notice of Appeal served on the Mayor or City Clerk of the City of Minneapolis within 30 days after the City Council adoption of the assessment. Also, a copy of the written Notice of Appeal must be filed with the Court Administrator of the District Court within 10 days after its service upon the Mayor or City Clerk and accompanied by the appropriate filing fees.

It is undisputed that appellant did not file any objections with the city prior to the public hearing. At the public hearing, appellant and other affected residents submitted a signed petition, declaring a violation of their due process rights and requesting the city to stop all proceedings until Bryn Mawr residents received more information. Appellant conceded that the petition did not state objections to his assessment.

On May 13, 2005, the Minneapolis City Council approved the special assessment. Appellant filed an appeal challenging the special assessment with the Minneapolis mayor and the city clerk on June 10, 2005. On June 20, 2005, appellant filed an appeal with Hennepin County district court.

The district court granted the city’s motion for summary judgment, focusing on the jurisdictional issues that no objections were filed by appellant prior to the public hearing and that appellant’s June 20 filing with the district court was untimely. This appeal followed.

ISSUE

Did the district court err in granting summary judgment?

ANALYSIS

Summary judgment is appropriate where there are no genuine issues of material fact, and where the moving party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997). “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). The party opposing summary judgment must establish a genuine issue for trial by “substantial evidence.” DLH, 566 N.W.2d at 69-70. “On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[ ] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

“[A]ppeals by property owners from assessments are wholly statutory, there being no common-law right to such appeal, and that the conditions imposed by the statute must be strictly complied with.” Wesson v. Village of Deephaven, 284 Minn. 296, 298, 170 N.W.2d 126, 128 (1969). Minnesota Statutes chapter 429 governs local improvements and special assessments, and allows a city to use either chapter 429 or its home rule charter in making improvements and imposing special assessments. Minn.Stat. § 429.111 (2006). It is undisputed here that the city elected to use its home rule charter. Consequently, the charter rules govern the appeals process with which a disgruntled property owner must comply. See Op. Att’y Gen. 707a-4 (Aug. 1, 1955) (stating that once the election provided for in this section, to proceed under the statute or the charter, is made, the charter provisions or the statutory provisions, as the ease may be, must be followed throughout the particular proceeding). “A charter may, however, incorporate state law by reference. Thus, where the city elects to proceed under its charter, state law does not automatically apply unless the charter so states or the state legislature has expressly or impliedly made the charter subject to state law.” Gadey v. City of Minneapolis, 517 N.W.2d 344, 348 (Minn.App.1994), review denied (Minn. Aug. 24,1994). This court, in Gadey, acknowledged that the 1969 session laws allowed the city to proceed with assessments under its charter and made chapter 429 available to the city. Id. Neither the district court nor respondent acknowledge the interplay between the charter and the statutes, specifically if and where the charter permits alternating back and forth between the charter and the statutes. The charter contains such reference, but it is irrelevant here because respondent concedes that the charter controls.

Chapter 429 provides that if the city proceeds under its charter rules for special assessments, “such provisions shall be deemed to include a requirement that notices of proposed assessments inform property owners of the procedures they must follow under the charter in order to appeal the assessments to district court.” Minn.Stat. § 429.021, subd. 3 (2006) (emphasis added). The city complied with this statutory requirement by including the following language in the notice sent to residents:

If the proposed assessment is adopted or adopted as modified and the owner of the property is dissatisfied with the assessment against the property, the owner may appeal the assessment to the District Court. To appeal, there must be a written Notice of Appeal served on the Mayor of City Clerk of the City of Minneapolis within 30 days after the City Council adoption of the assessment. Also, a copy of the written Notice of Appeal must be filed with the Court Administrator of the District Court within 10 days after its service upon the Mayor or City Clerk and accompanied by the appropriate filing fees.

This appeals language also complied with the appeals process disclosure requirement in the city charter rules. Minneapolis, Minn., City Charter ch. 10, § 8 (2005). Specifically, section 8 states that a dissatisfied property owner “may appeal to district court by serving a notice upon the Mayor or the City Clerk within thirty days after the City Council has adopted the assessments and by filing the notice with the clerk of the district court within ten days after its service....” Id. Section 6 of the charter rules directly addresses appeals of special assessments. Under section 6, a dissatisfied property owner “may at any time before such award or assessment shall be confirmed by the City Council” file a written objection with the city clerk. Minneapolis, Minn., City Charter ch. 10, § 6 (2005) (emphasis added). Upon confirmation of the special assessment, “[a dissatisfied property owner] so objecting shall have the right to appeal ... at any time within thirty days after such order.” Id. Section 6 goes on to state that an appeal must be filed with the mayor or city clerk and with the district court within 10 days. Id.

Section 6 is ambiguous. Within the same sentence it states that a property owner may file written objections before an assessment is confirmed, and later indicates that only persons who objected have the right to appeal. The “may” language in section 6 differs from Minn.Stat. § 429.081 (2006), the statutorily prescribed appeals process:

Within 30 days after the adoption of the assessment, any person aggrieved, iwho is not precluded by failure to object prior to or at the assessment hearing, or whose failure to so object is due to a reasonable cause, may appeal to the district court.

(Emphasis added.) The statute requires either a prior objection in writing or an objection at the assessment hearing. The charter rules, however, do not include that requirement.

The district court cites Wessen for the proposition that failing to file objections prior to the public hearing provides a basis for dismissal. In Wessen, however, Minn. Stat. § 429.081 was utilized and not the city’s charter rules. 284 Minn. at 297, 170 N.W.2d at 127. Similarly, respondent cites Habel v. City of Chicago City, for the same reason, and again, Habel uses chapter 429 and not the city’s charter rules. 346 N.W.2d 668, 669 (Minn.App.1984).

Given the disclosure requirement of Minn.Stat. § 429.021, subd. 3, which is deemed included if charter rules are utilized, and section 8 of the charter, both of which require disclosure of the appeals process, it is unreasonable that the city would be able to disclose less than the full appeals process. Such would be the case if a property owner was required, under the charter, to preserve a right to appeal by filing a written objection prior to the public hearing, where no mention of this step was made in the notice letter. Section 8 requires disclosure and provides language of the appeals process to be included in the notice sent to affected property owners. If there were an “additional” step required for property owners to preserve the right to appeal, this would always provide the city with an escape route to challenges of special assessments by property owners. Therefore, we conclude that under the charter rules prior objections are not required.

The district court found that appellant’s appeal was untimely. The question becomes what the charter rule states as the timeframe for filing an appeal. Appellant argues that he timely filed, understanding from the city’s April 19th notice that he had 30 days from the city’s adoption of the special assessment to file a notice of appeal with the mayor or city clerk, and “an additional” ten days to file with the district court.

The interpretation of a statute, charter, or ordinance involves a question of law, which this court reviews de novo. Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). Sections 6 and 8 both contain language regarding the timeframe established for appealing a special assessment to the district court. Two interpretations result from reading these sections. First, as respondent urges, the two-step appeals process must be fully completed within 30 days after the city’s adoption of the assessment. Second, as appellant urges, service upon the mayor or city clerk must occur within 30 days after the city’s adoption of the assessment and upon the district court within 10 days after serving the mayor or city clerk. (Put another way, a total of 40 days).

We accept the latter interpretation given that section 8 requires disclosure of the appeals process to affected property owners, and the language in section 8 is what appears in notices sent to property owners. Therefore, appellant had the right to reasonably assume he had 30 days to file his appeal with the mayor or city clerk and then an additional ten days to file with the district court. The city adopted the special assessment on May 13, 2005. Appellant filed an appeal with both the mayor and the city clerk 28 days later, on June 10, 2005. Then appellant filed the notice with the district court on June 20, 2005. Consequently, appellant timely filed.

Respondent argues that appellant relies upon a theory for reversal of the summary judgment order that was not previously argued before the district court. Respondent contends that appellant asserts a new theory by now claiming that he complied with section 8 filing requirements. Generally, a party may not “obtain review by raising the same general issue litigated below but under a different theory.” Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (citation omitted). However, because section 8 and section 6 are both involved in this case and contain filing requirements, this issue was properly addressed.

DECISION

Because appellant timely filed his appeal with the mayor, city clerk and the district court, the district court erred in granting the city’s summary judgment motion.

Reversed.

      . The charter references chapter 429 only by stating the "attention of the user is called to the following special acts relating to local improvements and assessments therefore: ... (3) Laws 1969, Ch. 499, authorizing the city, at its option, to make local improvements and levy special assessments either under its Charter or under M.S. Ch. 429 or other statutory authority.” Minneapolis, Minn., City Charter ch. 10, special references (2005).

      . Chapter 10 does not define "may.” See Minn.Stat. § 645.44, subds. 15, 15a, 16 (2006) (providing that "may” is permissive, as opposed to "must” and "shall” which are mandatory).

      . Section 6 states, in relevant part, that
      such person so objecting shall have the right to appeal from such order of confirmation of the City Council, to the District Court ... at any time within thirty days after such order. Such appeal shall be made by serving a written notice of such appeal upon the Mayor or City Clerk ... and by filing the notice of appeal upon the clerk of district court within ten days after its service.
      Minneapolis, Minn., City Charter ch. 10, § 8.

      . Section 8 states, in relevant party that "the owner may appeal to district court by serving a notice upon the Mayor or the City Clerk within thirty days after the City Council has adopted the assessments and by filing the notice with the clerk of district court within ten days after its service....” Minneapolis, Minn., City Charter ch. 10. § 8.


source: Caselaw Access Project

author: CROTHERS, Justice. MARING, Justice, VANDE WALLE, Chief Justice, SANDSTROM, Justice,

license: Public Domain

text:
    2007 ND 49
    Rhonda Rene LORENZ, Plaintiff and Appellant v. Mark Andrew LORENZ, Defendant and Appellee.
    No. 20060068.
    Supreme Court of North Dakota.
    April 10, 2007.

      Paul M. Probst, Probst Law Firm, Minot, ND, for plaintiff and appellant.
    Robert S. Thomas, Thomas & Thomas, Minot, ND, for defendant and appellee.
   CROTHERS, Justice.

[¶ 1] Rhonda Lorenz appeals from a judgment granting her a divorce from Mark Lorenz, dividing the parties’ marital estate, denying her request for spousal support, awarding her custody of the parties’ minor child, and granting Mark Lorenz visitation. By this opinion and that of the Chief Justice, we affirm that portion of the judgment distributing the property and debt of the parties. By Justice Mar-ing’s opinion and the concurrence of Justice Kapsner and the Chief Justice, we reverse that portion of the judgment denying spousal support and remand to the trial court for the purpose of awarding temporary spousal support.

I

[¶ 2] Rhonda and Mark Lorenz were married in April 1994 and have one child together. Rhonda Lorenz has another child from a previous marriage, and that child lived with the parties during their marriage. Mark Lorenz served in the United States Air Force during the marriage and was stationed at the Minot Air Force Base. Rhonda Lorenz also served in the Air Force, but left the service, and began pursuing a medical degree studying in Grenada, England, and other locations outside of Minot. She completed her degree in 2004 and returned to Minot.

[¶ 3] In September 2004, Rhonda Lorenz sued Mark Lorenz for divorce. After a trial, the court granted the parties a divorce, awarded Rhonda Lorenz custody of the parties’ child, granted Mark Lorenz visitation, and divided the parties’ marital estate. The court established a visitation schedule and ordered the parties to equally share the visitation transportation expenses if they resided more than 60 miles apart. The court valued the parties’ marital assets at approximately $213,824 and their marital debt at $448,649. The court awarded Rhonda Lorenz $136,824 in marital property, including the parties’ Minot home, and apportioned her $402,045 of the marital debt, including $250,000 for her medical school loans and the first and second mortgages on the Minot home. The court awarded Mark Lorenz $77,000 in marital property, including the parties’ interest in a house Mark Lorenz had inherited from his mother in Lewiston, Idaho. Mark Lorenz was allocated $46,288 of the parties’ marital debt. Mark Lorenz received a net award of $30,712, and Rhonda Lorenz received a net award of negative $265,221. The court ordered Mark Lorenz to pay Rhonda Lorenz $2,000 per year for five years to more equalize the property award. The court denied Rhonda Lorenz’s request for an equitable share of Mark Lorenz’s military retirement pension and denied Mark Lorenz’s request for an equitable share of Rhonda Lorenz’s military pension if she returned to military service. The court denied each party’s request for spousal support.

II

[¶ 4] Rhonda Lorenz argues the district court’s property division is clearly erroneous because it is inequitable, the court treated her medical school loans as separate personal debt, and the court did not consider Mark Lorenz’s military retirement pension as marital property. Rhonda Lorenz also claims the court incorrectly allocated the Lewiston, Idaho, residence to Mark Lorenz, and contends insufficient evidence supports the court’s finding there is a mortgage on the Lewi-ston property. •

[¶ 5] “We review a district court’s determinations regarding the division of property as findings of fact, and we will not reverse unless the findings are clearly erroneous.” Dvorak v. Dvorak, 2005 ND 66, ¶20, 693 N.W.2d 646. “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, although there is some evidence to support it, on the entire evidence the reviewing court is left with a definite and firm conviction a mistake has been made.’ ” Kostelecky v. Kostelecky, 2006 ND 120, ¶ 8, 714 N.W.2d 845 (quoting Olson v. Olson, 2002 ND 30, ¶ 7, 639 N.W.2d 701). “ ‘A [district] court’s findings of fact are presumptively correct, and we view the evidence in the light most favorable to the findings.’ ” Striefel v. Striefel, 2004 ND 210, ¶ 8, 689 N.W.2d 415 (quoting Reineke v. Reineke, 2003 ND 167, ¶ 12, 670 N.W.2d 841).

[¶ 6] The district court must ascertain the value of the marital estate after including all of the parties’ assets and debts, whether obtained separately or inherited. Steckler v. Steckler, 519 N.W.2d 23, 25 (N.D.1994). After all assets and debts have been included in the marital estate, the court applies the Ruff-Fischer guidelines to equitably distribute the property. Ulsaker v. White, 2006 ND 133, ¶ 10, 717 N.W.2d 567. The Ruff-Fischer guidelines 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. The [district] court is not required to make specific findings, but it must specify a rationale for its determination.

Id. The property division does not need to be equal to be equitable and a substantial disparity must be explained. Brandner v. Brandner, 2005 ND 111, ¶ 7, 698 N.W.2d 259. Generally, a long-term marriage supports an equal division of the marital estate, but economic fault and a party’s dissipation of assets can be relevant factors to consider. Id.

[¶ 7] The district court found the parties’ marital property was worth $213,824. The court awarded Rhonda Lorenz $136,824 in property, which included the parties’ Minot home worth $110,000, vehicles, household goods, and financial assets. The court awarded Mark Lorenz $77,000 in property, including the parties’ interest in the Lewiston, Idaho, property worth $45,000, vehicles, household goods, and financial assets. The court’s findings addressed the parties’ marital debt:

The parties have accumulated significant debt totaling some $448,649. Of this total debt, $250,000 is Rhonda’s medical school loans, which Rhonda has agreed it’s equitable that this debt should be apportioned to her. The Court concurs. This still leaves $198,649 of debt to be equitably apportioned between the parties. The parties agree that some of the accumulated credit card debt was for living costs and other expenses relating to Rhonda’s medical school education. However, there was no breakdown as to what amount of credit card debt was directly related to Rhonda’s education and what was for other purposes. In apportioning this $198,649 of debt, the Court took into account that at present, the parties are earning about the same gross monthly income. While Mark also receives certain military subsistence income, those sums may be reduced because of the divorce process. The Court further took into account that Mark will have a child support payment obligation of $781 per month. Finally, the Court also took into consideration that while the parties’ incomes are close now, it is more likely than not that as Rhonda continues in the medical profession, her income will increase significantly. While Mark’s income may also increase, it is more likely than not that Rhonda’s income will rise more quickly and to higher levels than Mark’s in the future.
The evidence was that the parties’ second mortgage from Homecoming Financial on the marital residence property was used to pay off some of both Rhonda’s educational costs and expenses and other marital expenses and debt. The Court finds it equitable that Mark equally share in such debt. However, because this debt is against the marital residence awarded to Rhonda, this debt will be apportioned to Rhonda; and Mark will be apportioned the $15,492 debt on the AT & T Universal Card (which sum is approximately one-half of the balance on the second mortgage of the marital residence).
The Court finds that the total accumulated marital debt of the parties is 4448,-649 [sic].
The amount of such debt apportioned to Rhonda: $402,045.00*
The amount of such debt apportioned to Mark: $46,288.00
*The $402,045 apportioned to Rhonda includes the $250,000 of her medical school loans, which both parties and the Court, under the facts of this case, agree should be the sole responsibility of Rhonda.

Mark Lorenz received a net award of $30,712, and Rhonda Lorenz received a net award of negative $265,221. The court’s findings explained the unequal distribution:

Even taking into account the support Mark gave Rhonda so that she could pursue her medical education, such as financial support, and that Mark solely provided for their child ... and Rhonda’s child ... for several years in Rhonda’s absence, which is difficult to place a money value on, the Court believes that it is equitable that there be an adjustment to account for this substantial difference.

The court identified a difference of $30,712 between the parties’ net property awards, after excluding the $250,000 medical school loans allocated to Rhonda Lorenz, and ordered Mark Lorenz to pay Rhonda Lorenz $2,000 per year for five years to make the property distribution equitable.

A

[¶ 8] Rhonda Lorenz claims the district court treated her student loan debt as personal debt and not marital debt, and therefore the court’s findings were made under an erroneous view of the law. She argues there is no evidence to support the court’s finding that she unconditionally agreed to assume the student loan debt.

[¶ 9] We must understand the basis for the district court’s decision before we can decide whether the findings of fact are clearly erroneous. In re Griffey, 2002 ND 160, ¶8, 652 N.W.2d 351. The district court must adequately explain the basis for its decision, but “we will not reverse a district court’s decision when ‘valid reasons are fairly discernable, either by deduction or by inference.’ ” In re Spicer, 2006 ND 79, ¶ 8, 712 N.W.2d 640 (quoting Griffey, at ¶ 8).

[¶ 10] Relying on Brandner, 2005 ND 111, 698 N.W.2d 259, Rhonda Lorenz claims the district court did not include her medical school loans in the marital estate and, therefore, the court misapplied the law. In Brandner, we said the district court misapplied the law when it treated a spouse’s business debts as “non-marital debts.” Id. at ¶¶ 10-11. This case is different from Brandner. Here, the district court found the parties’ marital debt totaled $448,649, which included $250,000 for Rhonda Lorenz’s school loans. The court included the student loans in the parties’ marital estate and considered the loans in the property distribution. Although the district court did not- include the student loans in its mathematical worksheet, we can fairly discern from the court’s decision that the loan amounts were not included in the equitable adjustment because the court had already addressed the debt and why it allocated the loans to Rhonda Lorenz.

[¶ 11] The court allocated the student loan debt to Rhonda Lorenz after finding she agreed at trial to be responsible for the student loans and the first mortgage on the home. Rhonda Lorenz confirms she agreed to be responsible for the student loan debt and the first mortgage, but that the agreement was contingent on receiving $2000 per month spousal support and Mark Lorenz paying all the other debt. She argues that the district court clearly erred by citing her agreement to assume the debt because the court did not award her spousal support or allocate the other debt to Mark Lorenz.

[¶ 12] We agree the district court erred when it mischaracterized the nature of Rhonda Lorenz’s agreement. However, we do not agree the mistake made the court’s findings clearly erroneous.

[¶ 13] The student loans are the majority of the debt awarded to Rhonda Lorenz, which made the property distribution unequal. The court made other findings about allocating the debt and explained the unequal distribution. “A [district] court may consider which of the parties has incurred particular debts, and the purposes for which those debts were incurred, in determining an equitable allocation of the responsibility for repayment, but those debts nevertheless remain a part of the marital estate.” Brandner, 2005 ND 111, ¶ 10, 698 N.W.2d 259. Under the Ruff-Fischer guidelines, both economic and non-economic fault are factors that may be considered in dividing the marital estate. Heinz v. Heinz, 2001 ND 147, ¶ 5, 632 N.W.2d 443. The court found the parties took out a loan secured by a second mortgage on the marital residence and incurred credit card debt to fund Rhonda Lorenz’s education.

[¶ 14] Rhonda Lorenz claims it is inequitable for her to be responsible for repayment of the loan secured by the second mortgage and the credit card debt because some of that money was used for depen-dant care in Minot. Review of the record shows that the credit cards were used solely by Rhonda Lorenz and that any other dependant care money paid for part, but less than all, of the children’s tuition expenses, including that of the child for whom Mark Lorenz had no legal obligation to support.

[¶ 15] Rhonda Lorenz’s decision to obtain a medical degree and the second mortgage and credit card debt she incurred while obtaining the degree were largely responsible for the parties’ sizable debt. A small portion of that debt was sent home to pay for the children’s private school tuition. The court found Rhonda Lorenz’s income was likely to increase substantially in the future, while Mark Lorenz was about to retire and his income was not expected to increase greatly. ' Rhonda Lorenz has a greater ability to pay back the debt she incurred. In contrast, Mark Lorenz did not incur most of the debt and will not benefit from Rhonda Lorenz’s education. We therefore conclude that even though the district court misapprehended Rhonda Lorenz’s agreement to assume the student loan debt, the court’s debt allocation is not clearly erroneous.

B

[¶ 16] Rhonda Lorenz argues the district court’s finding that she was earning approximately the same monthly income as Mark Lorenz is clearly erroneous because she was unemployed at the time of the trial. She claims the court incorrectly relied on that finding in distributing the parties’ marital estate.

[¶ 17] Although Rhonda Lorenz was unemployed at the time of the trial, she testified she had received an offer of employment as a first-year resident in the Minot area, specializing in family practice and earning approximately $41,000 per year for the first year. Evidence was also presented that the average salary for a family practice physician in the Minot area is approximately $120,000. Under the Rujf-Fischer guidelines, the court may consider the parties’ earning abilities when distributing their marital estate. Although Rhonda Lorenz had not yet formally accepted the offer of employment by the time of the trial, the offered salary was evidence of her earning ability. It was appropriate for the district court to consider Rhonda Lorenz’s earning abilities when distributing the marital estate, and the court’s findings are not clearly erroneous.

C

[¶ 18] Rhonda Lorenz claims the district court’s decision is clearly erroneous because the court did not include Mark Lorenz’s military pension in the marital estate. She claims the court should have divided his pension.

[¶ 19] Retirement benefits are marital property that must be included in the marital estate and are subject to equitable distribution. Striefel, 2004 ND 210, ¶ 10, 689 N.W.2d 415. “[T]he [district] court has an affirmative duty to determine the value of the marital estate and distribute the property of the parties equitably.” Anderson v. Anderson, 504 N.W.2d 569, 571 (N.D.1993). The Rujf-Fischer guidelines cannot be applied until after the court has established the net worth of the parties’ property, if sufficient evidence has been admitted. VanRosendale v. VanRosendale, 333 N.W.2d 790, 791 (N.D.1983). “If the court fails to determine net worth when sufficient evidence is before the court, ‘a manifest abuse of discretion exists.’ ” Id. (quoting Hoge v. Hoge, 281 N.W.2d 557, 561 (N.D.1979)).

[¶ 20] Here, the parties each requested a portion of the other’s military pension. Mark Lorenz’s pension was vested but the amount he would receive was not known at the time of trial because he had not retired. Rhonda Lorenz’s pension was not vested but her prior time in service would count for future military pension benefits if she rejoined the military. The district court included Mark Lorenz’s military pension in the property distribution and awarded it to him. The district court did not and could not determine the value of the pension because neither party offered that evidence. The court therefore did not include the value of either pension in the property distribution calculations.

[IT 21] In this case the benefits were included in the estate, but the parties’ failure to present evidence of a present value prevented the court from doing more. On appeal a party cannot complain about error that is of their own making. See State v. Klose, 334 N.W.2d 647, 651 (N.D.1983). The court did not have evidence about the present value of Mark Lorenz’s pension, and therefore the court did not err in failing to include its value in the marital estate.

[¶ 22] We have said if the parties in a divorce action cannot agree upon the present value of a retirement account it may be necessary to divide the future benefits using a formula that equally allocates the risks and benefits of the retirement. Bullock v. Bullock, 354 N.W.2d 904, 908-09 (N.D.1984). But, use of a formula to distribute a retirement pension only provides a substitute means of division when the value is not known. Here, alternate methods for division are not relevant because the court awarded the pension to Mark Lorenz.

[¶ 23] The district court rejected using a formula to distribute Mark Lorenz’s pension and instead found it would be equitable to award the entire pension to him:

As of the hearing in this matter, the parties had been married about 11 years. For just about five years between the years 2000 through most of 2004, Rhonda was gone from the marital home pursuing her medical education in Granada [sic] England, and other places. While she was gone, Mark remained in the marital home caring for both their child ... and Rhonda’s child ... as well as financially assisting Rhonda with her living and some medical education related expenses. In truth, except for the first few years of their marriage when both parties were in the service, Mark did more promoting of Rhonda’s professional career development than she did promoting his military service career. Therefore, the Court denies Rhonda’s request for an equitable share of Mark’s military retirement.
The fact is, Mark should have a reasonable retirement from the military; and Rhonda should likewise have sufficient time to establish her own reasonable retirement pension, whether it be from further military service or from the private practice of medicine. This, the Court believes is equitable for both parties.

[¶ 24] The record shows the court included the pension in the marital estate and made findings addressing its distribution. The court’s findings are supported by the evidence, and we are not left with a definite and firm conviction a mistake has been made. We conclude the court’s findings are not clearly erroneous.

D

[¶ 25] Rhonda Lorenz claims the district court erred in awarding Mark Lorenz the parties’ interest in the Lewiston, Idaho, residence. She claims that the court failed to include that residence in the parties’ marital estate and that there was insufficient evidence of a mortgage on the residence.

[¶26] Mark Lorenz testified he and his brother inherited the Lewiston residence from his mother and he has a one-half share in the property. Property acquired by gift or inheritance must be included in the marital estate and is subject to distribution. Ulsaker, 2006 ND 133, ¶ 12, 717 N.W.2d 567. The district court’s decision reflects that the court in-eluded the parties’ interest in the residence in the marital estate and awarded it to Mark Lorenz. We conclude the court did not misapply the law.

[¶ 27] Rhonda Lorenz claims there is insufficient evidence of a mortgage on the Lewiston property, and therefore there is not sufficient evidence that Mark Lorenz’s property award will be offset by this debt. During trial, Mark Lorenz testified there is a $15,000 mortgage on the Lewiston residence. He also testified ,he did not have additional evidence of the mortgage with him because his brother has the mort-gáge. Rhonda Lorenz testified there is not a mortgage on the Lewiston residence. The court found there is a $15,000 mortgage on the property and allocated the debt to Mark Lorenz. Although there is conflicting testimony about the existence of a mortgage on the Lewiston residence, “[a] choice between two permissible views of conflicting evidence is not clearly erroneous.” Barth v. Barth, 1999 ND 91, ¶ 13, 593 N.W.2d 359. The court’s findings on the Lewiston residence are not clearly erroneous.

E

[¶ 28] Although the property division is not equal, the district court adequately explained the disparity. The evidence supports the district court’s findings and property division, and we are not left with a definite and firm conviction a mistake has been made. We conclude the district court’s property division is not clearly erroneous, and we affirm the distribution.

Ill

[¶ 29] Rhonda Lorenz argues the district court erred in denying her request for spousal support. She claims she is burdened by the expenses she incurred rehabilitating herself and argues those expenses should be offset by temporary spousal support.

[¶ 30] Both Rhonda and Mark Lorenz sought spousal support. The district court denied both parties’ requests:

The Interim Order provided that Mark pay temporary spousal support to Rhonda in the sum of $700 per month, and to pay $1,000 toward Rhonda’s legal fees. This was basically because at the time of the Interim Order, Rhonda, while having applications out for a residency appointment, was not employed, and her income was the child support for her child [from a previous marriage]. However, as of the trial in this matter, Rhonda testified that she had received a residency offer ... with a gross monthly income of about $3,448 per month. There was some evidence that Rhonda’s residency income would likely increase with each year’s successful completion; and thereafter, her income should increase significantly.
Mark has a very successful military career with a gross monthly income, not counting his military subsistence and BAH benefits, of about $4,000.
In point of fact, it does not appear to the Court that either party has been disadvantaged to the point of necessitating awarding either party temporary or permanent spousal support; and the Court declines to do so. Mark’s temporary spousal support obligation of $700 per month to Rhonda, pursuant to the Interim Order, shall end with his October 2005 payment.

[¶ 31] The decision whether to award spousal support is a finding of fact and will not be set aside on appeal unless it is clearly erroneous. Kostelecky, 2006 ND 120, ¶ 14, 714 N.W.2d 845. In deciding whether to award spousal support, the court must consider the relevant factors under the Ruff-Fischer guidelines. Id. A separate finding that a spouse is “disadvantaged” is no longer necessary to award spousal support. Sack v. Sack, 2006 ND 57, ¶ 11, 711 N.W.2d 157. The district court’s findings in this case were issued before Sack, and therefore the court made findings about whether either spouse was disadvantaged.

[¶ 32] Relying on Lohstreter v. Lohstreter, 1998 ND 7, ¶ 24, 574 N.W.2d 790, Rhonda Lorenz claims she is entitled to spousal support because she rehabilitated herself during the marriage. In Lohstreter we reversed a district court’s decision not to award Kathy Lohstreter spousal support after the court concluded she was not a disadvantaged spouse because she was close to graduating with a nursing degree. Id. at ¶23. We concluded the court’s decision was clearly erroneous because Kathy Lohstreter was burdened with family debts from her husband’s financial irresponsibility, she was responsible for her own education debts, she was 42 years old and had never had significant employment outside the home, and spousal support was critical because there was no other property to distribute to equalize the burdens and disadvantages of the marriage. Id. We also said that because she rehabilitated herself, she should receive some rehabilitative spousal support to help her retire her educational debt and embark on employment, particularly because the cost of becoming self-supporting was not equitably shared by her former spouse. Id. at ¶¶ 24-25.

[¶ 33] This case is different from Lohstreter. Rhonda Lorenz was employed in the military before she decided to attend medical school, and it is not clear that she would have been entitled to rehabilitative spousal support if she had not gone to medical school and obtained her degree, while Kathy Lohstreter was not employed outside of the home before she went to school for her nursing degree. Id. at ¶¶ 26-27. Here, Rhonda Lorenz’s decisions about her education significantly contributed to the parties’ financial situation, and in Lohstreter the husband’s alcohol abuse and overspending led to the parties’ unstable financial situation. Id. at ¶ 18. Moreover, Rhonda Lorenz had received an offer of employment with a set salary at the time of the divorce trial, and although Kathy Lohstreter was close to completing her education, she was not yet employed and it was not certain what her income would be when she obtained employment.

[¶ 34] The district court here considered the Ruff-Fischer factors, specifically the parties’ earning abilities, and concluded neither spouse was entitled to spousal support. The court considered Rhonda Lorenz’s income based on the employment offer and the likelihood that her income would increase significantly in the future. We conclude the court’s findings about spousal support are supported by the evidence and, therefore, are not clearly erroneous.

IV

[¶ 35] Rhonda Lorenz argues the district court’s decision requiring the parties to equally share transportation expenses incurred when the parties’ child visits Mark Lorenz is clearly erroneous, because it places an excessive financial burden on her.

[¶ 36] A district court’s decision on visitation is a finding of fact which will not be reversed on appeal unless it is clearly erroneous. Berg v. Berg, 2000 ND 36, ¶ 18, 606 N.W.2d 895. Assessment of transportation expenses is part of the broader issue of visitation and custody and we apply the same standard of review. Id.

[¶ 37] Mark Lorenz testified he was contemplating moving to Lewiston, Idaho, after he retired from the military. The divorce judgment requires the parties to equally share the visitation transportation expenses if the parties reside in separate states and more than 60 miles from each other.

[¶ 38] Relying on Berg, 2000 ND 36, 606 N.W.2d 895, Rhonda Lorenz claims she should not be required to pay half the transportation expenses because it places an excessive financial burden on her. In Berg, however, we affirmed a district court’s decision to require the father to transport the children for visitation and pay all transportation expenses due to the mother’s financial circumstances and the father’s attempts to demean the mother’s reputation in the community, which made it difficult for the mother to return to the community for visitation. Id. at ¶ 19. Rhonda Lorenz has not cited, and we have not found, a decision where this Court has reversed a district court order requiring parents to equally share transportation expenses due to an excessive financial burden on one parent. We decline to do so in this case. The district court’s decision was not based on an erroneous view of the law, there is evidence to support it, and we are not left with a definite and firm conviction a mistake was made. We conclude the court’s decision is not clearly erroneous.

[¶ 39] DANIEL J. CROTHERS

MARING, Justice,

concurring in part and dissenting in part.

[¶ 40] I concur in part IV and, respectfully, dissent to parts II and III of the majority opinion. I believe the trial court clearly erred in dividing the parties’ marital estate and failing to award Rhonda Lorenz spousal support. Therefore, I would reverse and remand for the trial court to reconsider the division of the marital estate, including division of the debt, Mark Lorenz’s military retirement pension, and an award of spousal support.

[¶ 41] “Courts generally start with the view that marital property should be divided equally, and although the division need not be exactly equal to be equitable, the trial court must explain any substantial disparity.” Brandner v. Brandner, 2005 ND 111, ¶ 7, 698 N.W.2d 259. An explanation must be sufficient to understand the trial court’s rationale for the substantial disparity. See Ulsaker v. White, 2006 ND 133, ¶ 18, 717 N.W.2d 567.

[¶ 42] The majority concludes the trial court did not clearly err in its division of the marital debt even though the trial court mischaracterized the nature of Rhonda Lorenz’s agreement to pay her student loan debt. The trial court held:

The court allocated the student loan debt to Rhonda Lorenz after finding she agreed at trial to be responsible for the student loans and the first mortgage on the home. (Emphasis added.)

[¶ 43] However, on direct examination during the divorce trial, Rhonda Lorenz testified that she would take her student loans and the first mortgage provided she was awarded the home in Minot and provided she was awarded spousal support from Mark Lorenz at $2,000 per month for one year.

[¶ 44] Rhonda Lorenz testified that she would be required to start paying back her student loans at the rate of $1,900 per month in August 2005. Based on this testimony, the trial court, in its October 21, 2005, findings and order for judgment, found: “The parties have accumulated significant debt totaling some $448,649. Of this total debt, $250,000 is Rhonda Lorenz’s medical school loans, which Rhonda Lorenz has agreed it’s equitable that this debt should be apportioned to her. The Court concurs.” The trial court did mis-characterize Rhonda Lorenz’s testimony to mean she was willing to be responsible for the entire medical school loan debt without assistance from Mark Lorenz. Rhonda Lorenz’s willingness to be responsible for the medical school loan debt was clearly based on her belief that Mark Lorenz would provide spousal support until her expected earning potential from the medical education began. I do agree that this mischaracterization of Rhonda Lorenz’s testimony does not make the trial court’s allocation of the student loan debt to her clearly erroneous. However, having made this decision, the trial court failed to adequately explain the huge disparity in its division of the remaining marital estate. Even without consideration of the medical school debt of $250,000, the remaining net equity assigned to Mark Lorenz is $30,712 {plus a pension of undetermined value), while Rhonda Lorenz received a negative $15,221 (plus $2,000 per year for five years with no interest). This unexplained disparity results from the disproportionate allocation of the remaining debt.

[¶ 45] “All assets, whether separately obtained or inherited property, are to be considered part of the marital estate. When all of the assets and debts have been included, the district court is to apply the Ruff-Fischer guidelines for an equitable distribution of the property.” Ulsaker, 2006 ND 133, ¶ 10, 717 N.W.2d 567 (citation omitted). The trial court was required to include all assets and debts in the marital estate before making an equitable distribution of the property. After apportioning the medical school loan debt to Rhonda Lorenz, the trial court, in its October 21, 2005, findings and order for judgment, found: “This still leaves [$198,-333] of debt to be equitably apportioned between the parties.” The trial court then proceeded to consider a distribution of the marital estate without further consideration of the medical school loans and their impact on Rhonda Lorenz’s financial condition. Because the trial court did not consider the impact of the $250,000 of medical school loan debt assigned to Rhonda Lorenz when making its equitable distribution of the marital estate, its decision should be reversed and remanded for a proper consideration of all assets and debts under the Ruff-Fischer guidelines.

[If 46] Further, the trial court clearly erred in failing to equitably divide the balance of the marital debt of $198,333. Of the $198,333, the trial court apportioned $46,288 to Mark Lorenz and $152,045 to Rhonda Lorenz. This results in a large disparity in the apportionment of the marital estate. In its October 21, 2005, findings and order for judgment, the trial court reasoned: “The parties agree that some of the accumulated credit card debt was for living costs and other expenses relating to Rhonda Lorenz’s medical school education. However, there was no breakdown as to what amount of credit card debt was directly related to Rhonda Lorenz’s education and what was for other purposes.” More than 75 percent of the $198,333 debt was apportioned to Rhonda Lorenz, even though some of that debt resulted from supporting the family.

[¶ 47] The trial court’s explanation for the substantial disparity in its division of the debt is inadequate and not supported by the record. The trial court found that Rhonda and Mark Lorenz were earning approximately the same gross monthly income. In actuality, Mark Lorenz was earning $5,131 each month, or approximately $61,600 a year, and Rhonda Lorenz was not earning a salary. She had the opportunity to sign a contract for a residency program, with a monthly income of $3,448, or approximately $41,000 a year. This difference in monthly and yearly income results in an annual salary difference of over $20,000. This is not, as the trial court found in its October 21, 2005, findings and order for judgment, “about the same gross monthly income.” The trial court considered Mark Lorenz’s payment of child support as a reason to apportion him less of the marital debt, yet failed to consider the expenses Rhonda would incur as custodial parent of the parties’ child. Finally, in its October 21, 2005, findings and order for judgment, the trial court found: “While Mark’s income may also increase, it is more likely than not that Rhonda’s income will rise more quickly and to higher levels than Mark’s in the future.” The trial court ignored that Rhonda Lorenz had an upcoming three-year residency in which her salary would likely remain less than Mark Lorenz’s. The trial court’s inequitable division of the $198,333 of debt should be reversed and remanded because the substantial disparity was not adequately explained.

[¶ 48] Even if the $250,000 was appropriately apportioned to Rhonda Lorenz, its effect on her financial situation should have been taken into account when apportioning the balance of $198,333 of debt. The trial court did not take into consideration the medical school loan debt or the parties’ actual financial situation when apportioning the balance of the $198,333 of debt and, therefore, erred when it failed to apply this Ruff-Fischer guideline.

[¶ 49] The trial court did not concern itself with how Rhonda Lorenz is expected to pay $402,045 in debt. Ordering an individual to pay over $400,000 in debt on an annual salary of approximately $41,000 'for the next three years, is not equitable. The trial court ordered Mark Lorenz to make monthly cash payments totaling $10,000 over the next five years, at $2,000 per year. This does very little to reduce the inequitable division of debt, especially considering the present value of that $10,000. Rhonda Lorenz testified she would be required to start paying $1,900 per month beginning in August 2005 on her student loans and her trial exhibit 8 shows her monthly expense needs, including payment of the first and second mortgages and credit card debt at $4,462. She testified her income from her residency would be a gross $3,448 per month. It does not take a math wizard to recognize she cannot meet the obligations assigned to her by the trial court. The trial court contends that Rhonda Lorenz’s receipt of the marital home makes up for the failure of the trial court to equalize the net award difference between the parties because the home will continue to appreciate in value. The record does not establish the expected appreciation of a $110,000 home in Minot. The two mortgages against the home total $119,624, leaving no equity in the home. Rhonda Lorenz was apportioned approximately $60,000 more in assets than Mark Lorenz. These are not income-producing assets. Ten thousand dollars in cash payments over five years with no interest and an extra $60,000 in assets, does very little to offset the approximately $356,000 in extra debt apportioned to Rhonda Lorenz. Any appreciation in the Minot home will surely do little to offset that inequitable difference. The Ruff-Fischer guidelines require that the court consider the circumstances and necessities of each party and their financial circumstances as shown by the property owned at the time. Ulsaker, 2006 ND 133, ¶ 10, 717 N.W.2d 567. The court erred by not doing so.

[¶ 50] The trial court’s findings are clearly erroneous as they pertain to the division of Mark Lorenz’s military retirement pension. “In dividing marital property in a divorce action, the trial court normally starts with an equal distribution of the property, and must explain a substantial disparity in the property division.” Striefel v. Striefel, 2004 ND 210, ¶ 7, 689 N.W.2d 415 (citation omitted). “Pensions and retirement benefits are marital assets subject to equitable distribution by the court.” Id. at ¶ 10.

[¶51] The majority at ¶21 concludes: “In this case the benefits were included in the estate, but the parties’ failure to present evidence of a present value prevented the court from doing more. On appeal a party cannot complain about error that is of their own making.” In Bullock v. Bullock, 354 N.W.2d 904 (N.D.1984), this Court affirmed the use of a formula that divided the number of years of marriage by the number of years the spouse was in the military, times half of the spouse’s retirement pay, to determine an equitable division of a military retirement pension. In Johnson v. Johnson, 2002 ND 151, ¶ 18, 652 N.W.2d 315, we held: “There is no set formula for this division, but rather it should be based on the facts of the case.... Use of the Bullock formula to distribute retirement pay is not mandatory because the formula is not the only method of achieving an equitable division of marital property.” A formula may be used, or alternatively, the present value may be used and the court may award other property equal to the pension share. Contrary to the majority’s position in ¶21, lack of evidence of a present value does not render the pension not divisible to achieve an equitable division of a marital estate.

[¶ 52] In the present case, the trial court received evidence that the parties have been married eleven years, that Mark Lorenz has a vested military pension which will pay $2,000 per month when he retires, and that he has been in the military twenty years. The trial court awarded the military pension wholly to Mark Lorenz. The trial court’s explanation was that for five of the eleven years of marriage, Rhonda Lorenz was in medical school. The trial court’s award of this military retirement pension to Mark Lorenz further increased the substantial disparity in the allocation of the marital estate without an adequate explanation.

[¶ 53] I would reverse and remand for reconsideration of the entire issue of equitable division of the parties’ marital debt and property. We have held:

Because questions of property division and spousal support cannot be considered separately or in a vacuum, but ordinarily must be examined and dealt with together, and because the property division may have influenced the award and structure of spousal support, the district court may, if it amends spousal support, also reconsider the property distribution.

Ingebretson v. Ingebretson, 2005 ND 41, ¶ 10, 693 N.W.2d 1 (citations omitted). Therefore, on remand, the trial court should also reconsider the issue of spousal support together with the debt and property distribution.

[¶ 54] MARY MUEHLEN MARING CAROL RONNING KAPSNER

VANDE WALLE, Chief Justice,

concurring in part and dissenting in part.

[¶ 55] Justices Crothers and Sand-strom would affirm the district court’s property and debt distribution. In the long term, because of the nature of the debt as student debt and Rhonda Lorenz’s earning potential, I agree with that distribution. Mark Lorenz’s pension is fixed. Rhonda Lorenz will have the opportunity to establish her own pension with a medical degree that was acquired' during the marriage. I would affirm that portion of the judgment distributing the property and debt of the parties.

[¶ 56] However, on this record it is obvious that in the short term Rhonda Lorenz will not be able to pay the debt and provide for her living expenses on the income that she is to receive as a resident in her medical career, some $41,000 a year, and the $2,000 per year for five years that the district court awarded her to equalize the property and debt distribution.

[¶ 67] Also, in the short term, Mark Lorenz’s earning capacity is significantly greater than that of Rhonda Lorenz, as discussed in the separate opinion dissenting in part and concurring in part. Furthermore, Mark Lorenz was allocated a significantly smaller portion of the debt than Rhonda Lorenz and he will not have to make payments on debt that she must make. Under these circumstances, it was error for the district court to refuse to award Rhonda Lorenz temporary spousal support.

[¶ 58] I would reverse that portion of the judgment denying spousal support and remand to the district court for the purpose of awarding Rhonda Lorenz temporary spousal support.

[¶ 59] GERALD W. VANDE WALLE, C.J.

SANDSTROM, Justice,

concurring in part and dissenting in part.

[¶ 60] The decision of the Court is contained in the opinion of the Chief Justice— to reverse on the issue of spousal support and to affirm the remainder of the judgment. For the reasons largely set forth in Justice Crothers’ opinion, I would affirm the judgment of the district court in its entirety.

[¶ 61] DALE V. SANDSTROM

      . On January 18, 2006, the trial court entered an order amending findings and order for judgment, finding it had "made an arithmetic mistake, and the parties’ total marital debt should have been listed as $448,333.” A judgment was entered on February 15, 2006.

      . At the time of the October 21, 2005, findings and order for judgment, the trial court incorrectly determined the remaining debt to be $198,649 rather than $198,333, which is reflected in the February 15, 2006, judgment.


author: MARING, Justice.

text:
    2007 ND 53
    In the Matter of the ESTATE OF Trygve R. STAVE, Deceased Lavina Stave, Appellant v. Norman Mell, Personal Representative of the Estate of Trygve R. Stave, Appellee.
    No. 20060189.
    Supreme Court of North Dakota.
    April 10, 2007.

      Michael Ward, Eaton, Van de Streek & Ward, Minot, N.D., for appellant.
    Wade G. Enget (argued), Schulte & En-get, Stanley, N.D., and Michel W. Stefo-nowicz (appeared), Crosby, N.D., for ap-pellee.
   MARING, Justice.

[¶ 1] Lavina Stave appeals from a district court order granting a motion for judgment as a matter of law by the personal representative of the estate of her deceased husband, Trygve Stave, and dismissing her action against the estate. Because we conclude Lavina Stave failed to present any evidence on one of the required elements of her claim of undue influence, we affirm.

I

[¶ 2] Trygve and Lavina Stave were married on January 29, 1945, and had two children, Terry Stave in 1945 and Thomas Stave in 1948. In the 1990’s, Trygve Stave developed bladder cancer, and in Septena-ber 2001, he was diagnosed with cancer that had penetrated his bladder wall and was spreading throughout his body. On September 28, 2001, Trygve Stave executed a “last will and testament,” which “intentionally omitted” his wife from receiving any share of his estate and which distributed 40 percent of his estate to Thomas Stave, 15 percent to Terry Stave, and 15 percent to each of Trygve Stave’s three grandchildren. Trygve Stave died on April 25, 2002.

[¶ 3] In May 2002, Lavina Stave applied for informal probate of Trygve Stave’s will, requesting that she be named as the personal-representative. Norman Mell, who was named as personal representative by the will, was subsequently appointed as the personal representative of the estate. Lavina Stave then commenced this action against the estate, alleging the will was the product of fraud or undue influence. Although not at issue in this case, Lavina Stave has also filed a claim seeking her elective share of the augmented estate under state law.

[¶ 4] The district court dismissed the fraud claim before trial, and in May 2006, the undue influence claim was tried to a jury. During trial, testimony established that Trygve and Lavina Stave spent most of their life working on their farm and accumulating assets. Both Terry Stave and Thomas Stave worked on their parents’ farm while growing up and during their adult life. In 1984, Thomas Stave left and moved to Georgia to pursue his own business. The evidence indicates Thomas Stave did not spend much time in North Dakota during the last approximately 15 years of Trygve Stave’s life, while Terry Stave continued to live in North Dakota and farm with Trygve and Lavina until Trygve’s death.

[¶ 5] Barbara Stave, Terry’s wife, testified that Thomas Stave returned to the area in 2001, visiting his parents and also attending a family gathering. Barbara Stave testified that Terry and Trygve were “very close” until 2001, and everything changed after Thomas returned. Terry Stave testified that he witnessed a conversation between Trygve and Thomas “one day” in 2001, during which Trygve and Thomas were talking about Trygve’s estate. Terry Stave testified that when he approached Trygve and Thomas, they switched subjects. Further, Terry’s son testified that Thomas started coming around in 2001, but he did not know what Thomas had discussed with Trygve.

[¶ 6] Dr. Stephen Podrygula, a clinical psychologist, testified that in his opinion Trygve Stave was “very susceptible” and at “a high risk of susceptibility” to undue influence, but did not express an opinion as to whether that influence was actually exercised. Dr. Podrygula did not testify whether undue influence was exerted at the time of the execution of Trygve Stave’s will. Lavina Stave testified that Trygve was not well during the last year of his life, and Barbara Stave testified that Trygve appeared to be confused, could not make decisions, and had trouble understanding things in 2001. Terry Stave testified that in 2001 Trygve was having problems, was not feeling quite right, and was often mad and depressed. Terry’s son also testified that in 2001, Trygve’s health was failing and that he seemed confused.

[¶ 7] Lavina Stave testified that upon the reading of Trygve Stave’s will, she was surprised and upset, in part, because she believed the distribution should have been equal between Terry Stave and Thomas Stave. Barbara Stave testified that Trygve had told her the distribution of property would be larger for Terry Stave than for Thomas Stave, because Terry had always been the one doing the farming. Terry Stave’s son testified that Trygve had told him that the estate would go to Lavina Stave and then be split evenly between Terry Stave and Thomas Stave. Terry Stave testified that Trygve had told him that all of the land was going to be given to Terry Stave, with Terry Stave having to “pay off’ Thomas Stave.

[¶ 8] After Lavina Stave finished presenting evidence in her case-in-chief, the personal representative moved for a judgment as a matter of law under N.D.R.Civ.P. 50. The district court found that the evidence presented, viewed in the light most favorable to Lavina Stave, could support a finding that Trygve Stave may have been susceptible to undue influence, but that Lavina Stave had only shown that Thomas Stave had a conversation with Trygve about the estate sometime before Trygve’s will was executed. The court found that no evidence demonstrated Thomas Stave was disposed to exercise undue influence over Trygve Stave and, further, no evidence had shown the will was the product of undue influence exerted by Thomas Stave.

[¶ 9] The district court granted the personal representative’s motion for a judgment as a matter of law under N.D.R.Civ.P. 50, and dismissed Lavina Stave’s action to invalidate the will on the ground of undue influence. Lavina Stave appeals.

II

[¶ 10] Lavina Stave argues the district court erred in granting judgment as a matter of law. She claims she presented sufficient credible evidence to establish a case of undue influence.

[¶ 11] The district court’s decision on whether to grant or deny a motion for judgment as a matter of law under N.D.R.Civ.P. 50 is based upon “whether the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion.” Dahl v. Messmer, 2006 ND 166, ¶ 14, 719 N.W.2d 341 (quoting Symington v. Mayo, 1999 ND 48, ¶4, 590 N.W.2d 450). On appeal, the district court’s decision on a motion for judgment as a matter of law is fully renewable. Dahl, at ¶ 14.

[¶ 12] “We have defined undue influence in the context of a will contest as the substitution of the purpose and intent of one exercising influence for the purpose and intent of the testator.” Estate of Howser, 2002 ND 33, ¶ 9, 639 N.W.2d 485; Estate of Robinson, 2000 ND 90, ¶ 10, 609 N.W.2d 745. In a proceeding to contest a will, four elements must be proven to establish undue influence: “1) a testator subject to undue influence; 2) the existence of the opportunity to exercise undue influence; 3) a disposition to exercise undue influence; and 4) a result that appears to be the effect of undue influence.” Estate of Howser, at ¶ 9. Whether undue influence exists is a question of fact, which is ordinarily established by circumstantial evidence. Estate of Robinson, at ¶¶ 10-11.

[¶ 13] This Court has explained that undue influence must be proven by the person contesting the will and that mere suspicion is not enough. Estate of Ostby, 479 N.W.2d 866, 871 (N.D.1992). “For the issue of undue influence to be submitted to a jury, the evidence must be sufficient with regard to each essential element of the claim and the evidence must also create more than just a mere suspicion of undue activity.” Estate of Dion, 2001 ND 53, ¶ 34, 623 N.W.2d 720 (citing Perry v. Reinke, 1997 ND 213, ¶ 13, 570 N.W.2d 224).

[¶ 14] Here, the dispositive issue is whether there was evidence presented to the jury to raise a factual issue about Thomas Stave’s disposition to exercise undue influence over Trygve Stave. Lavina Stave argues circumstantial evidence supports Thomas’s disposition to exercise undue influence.

[¶ 15] There is testimony in the record that Thomas Stave returned to North Dakota to spend time with his father after living out of state for an extended period and Thomas had not seen his father much during the last 15 years of Trygve Stave’s life. Lavina Stave testified Thomas Stave was “greedy.” However, there is evidence about only one conversation between Thomas Stave and Trygve Stave regarding the estate, which purportedly occurred sometime in 2001. Terry Stave testified that he observed Thomas and his father discussing the estate, but that “[a]s soon as [he] got there, they switched subjects.” There is no evidence Thomas Stave was in North Dakota at the time the will was executed in September 2001, or that he was involved in the execution of the will.

[¶ 16] We conclude Lavina Stave has failed to demonstrate a disposition on the part of Thomas Stave to exercise undue influence. There was no evidence presented that Thomas Stave was involved in the planning and execution of Trygve Stave’s will, and Lavina Stave only established one conversation between Thomas and Trygve about the estate, but nothing as to the content of that single conversation. While Thomas Stave may well be a beneficiary of the will who received a disproportionate amount of the estate, there is simply no evidence of Thomas’s “active participation ... in securing the preparation of, or a change in, [the] will.” See Estate of Robinson, 2000 ND 90, ¶ 16, 609 N.W.2d 745.

[¶ 17] Viewing the evidence presented at trial in the light most favorable to Lavi-na Stave, we conclude the evidence about Thomas Stave’s disposition to exercise undue influence is such that it could lead to one conclusion about which there can be no difference of opinion. We therefore hold the district court did not err in granting the personal representative’s motion for a judgment as a matter of law under N.D.R.CivJP. 50.

III

[¶ 18] Lavina Stave argues that there should be a presumption of undue influence in this case, considering the relationship of “personal confidence” between Thomas Stave and Trygve Stave, as father and son. We have consistently refused to apply the presumption of undue influence, found in N.D.C.C. § 59-01-16, to will contests. See Estate of Howser, 2002 ND 38, ¶ 7, 639 N.W.2d 485; Estate of Wenzel-Mosset v. Nickels, 1998 ND 16, ¶ 23, 575 N.W.2d 425; Estate of Mickelson, 477 N.W.2d 247, 250 (N.D.1991). We have specifically held “[t]here is no need for a prescription of undue influence in will contest cases, because the criteria for such are well set out in case law.” Estate of Wenzel-Mosset, at ¶ 23. We conclude this argument is without merit.

IV

[¶ 19] Lavina Stave argues the district court erred by admitting Trygve Stave’s medical records only for the limited purpose of providing the basis of Dr. Podrygula’s expert opinion testimony. The district court has broad discretion in deciding whether to admit or exclude evidence. See Nesvig v. Nesvig, 2006 ND 66, ¶ 30, 712 N.W.2d 299. Based upon our review of the record, we cannot say the district court abused its discretion regarding those records.

V

[¶ 20] The district court order is affirmed.

[¶ 21] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM, and DANIEL J. CROTHERS, JJ., concur.


author: CARTER, Justice.

text:
    S.A. SUTTON and Francine Banwarth, Appellants, v. DUBUQUE CITY COUNCIL and Royal Oaks Development Corp., Appellees. S.A. Sutton and Francine Banwarth, Appellees, v. Dubuque City Council and Royal Oaks Development Corp., Appellants.
    Nos. 04-1067, 04-1196.
    Supreme Court of Iowa.
    Sept. 29, 2006.
    Rehearing Denied Jan. 11, 2007.
    David L. Hammer and Angela C. Simon of Hammer, Simon <& Jensen, Dubuque, for S.A. Sutton and Francine Banwarth.
    Barry A. Lindahl and James A. O’Brien, Dubuque, for Dubuque City Council.
    Stephen J. Juergens of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., Du-buque, for Royal Oaks Development Corp.
   CARTER, Justice.

The city council of the City of Dubuque, in its representative capacity, and Royal Oaks Development Corporation, an affected real estate developer, appeal from a judgment that voided an amendment to the zoning ordinances of the City of Du-buque. Because there is a community of interest between appellants, we will proceed as if the City were the only appealing party. The appellees are S.A. Sutton and Francine Banwarth, two objectors to the zoning change.

The basis for the district court’s decision invalidating the rezoning action was that court’s finding that the mayor of Dubuque, whose vote was necessary for passage of the challenged zoning change, had a disqualifying conflict of interest. Sutton and Banwarth had advanced other grounds for voiding the ordinance, and they appeal from the trial court’s rejection of those assertions. Although separately docketed, the two appeals are considered together. The City urges that the mayor did not have a disqualifying conflict of interest, and it also seeks to overturn the judgment on the ground that the present action was barred by limitations. Because we agree with the latter claim, we reverse the judgment of the district court on the City’s appeal. We affirm the district court’s rulings on the issues raised in the objectors’ appeal.

On May 8, 2003, the Dubuque City Council passed an ordinance amending the existing zoning code by reclassifying certain described property from a commercial recreation district to a planned unit development (PUD) district with a residential district designation, including a conceptual development plan. The ordinance was passed on a four-to-three vote, with the mayor voting yes.

Sutton and Banwarth initially challenged the rezoning decision with a petition for writ of certiorari pursuant to Iowa Rule of Civil Procedure 1.1401. That action was dismissed as untimely because it had not been brought within thirty days of the challenged action, as required by rule 1.1402(3). They later commenced the present action for declaratory judgment, seeking to overturn the challenged rezoning on multiple grounds. The City asserted plaintiffs’ lack of standing and further asserted that their claims were barred by limitations because certiorari was the exclusive remedy and the time limitations for initiating a certiorari challenge had not been met. The district court rejected the City’s standing and timeliness challenges. It rejected all of Sutton’s and Banwarth’s challenges to the ordinance except their contention involving a disqualifying conflict of interest. Following a trial on that issue, the district court found that the mayor, whose vote was decisive, had a disqualifying conflict of interest because of anticipated real estate commissions that he or his real estate agency might enjoy as a result of the project that was provided for in the PUD zoning plan.

I. The City’s Appeal.

The City contends that Sutton’s and Banwarth’s claims of illegality were required to be presented by certiorari and were barred by the time limit imposed in Iowa Rule of Civil Procedure 1.1402(3). Our decisions have recognized that certio-rari may be a proper remedy for reviewing the legality of decisions made by city councils and county boards of supervisors in zoning matters. Montgomery v. Bremer County Bd. of Supervisors, 299 N.W.2d 687, 692 (Iowa 1980); Smith v. City of Fort Dodge, 160 N.W.2d 492, 495 (Iowa 1968). This recognition rests on the conclusion that the action being reviewed by certiora-ri is of a quasi-judicial nature. Although municipal zoning ordinarily involves the enactment of an ordinance, an action that on first blush appears to be legislative in nature, rezoning often takes on a quasi-judicial character by reason of the process by which it is carried out. We defined the nature of a quasi-judicial function in Buechele v. Ray, 219 N.W.2d 679 (Iowa 1974). We stated in that case that a quasi-judicial function is involved if the activity (1) involves proceedings in which notice and an opportunity to be heard are required, or (2) “a determination of rights of parties is made which requires the exercise of discretion in finding facts and applying the law thereto.” Buechele, 219 N.W.2d at 681. Similar criteria were expressed in Curtis v. Board of Supervisors, 270 N.W.2d 447, 449 (Iowa 1978).

The Washington Supreme Court has applied the following principles in determining whether zoning activities are quasi-judicial in character:

Zoning decisions may be either administrative or legislative depending upon the nature of the act....
... [WJhen a municipal legislative body enacts a comprehensive plan and zoning code it acts in a policy making capacity. But in amending a zoning code, or reclassifying land thereunder, the same body, in effect, makes an adjudication between the rights sought by the proponents and those claimed by the opponents of the zoning change.

Fleming v. Tacoma, 81 Wash.2d 292, 502 P.2d 327, 331 (1972). The Washington court then set forth a helpful recital of the factors that will render rezoning decisions quasi-judicial in character. Those factors include (1) rezoning ordinarily occurs in response to a citizen application followed by a statutorily mandated public hearing; (2) as a result of such applications, readily identifiable proponents and opponents weigh in on the process; and (3) the decision is localized in its application affecting a particular group of citizens more acutely than the public at large. Id. All of the factors identified by the Washington court in Fleming come into play in the present conflict, a circumstance that leads us to the conclusion that the action of the city council being challenged in the present case was quasi-judicial in character. As such, a challenge to the legality of the action taken was subject to review by certiorari.

The quasi-judicial character of municipal rezoning is particularly evident in matters involving PUD zoning. The Florida appellate court in Hirt v. Polk County Board of Commissioners, 578 So.2d 415 (Fla.Ct.App.1991), discussed this distinction as follows:

[Cjreating zoning districts and rezoning land are legislative actions, and ... trial courts are not permitted to sit as “super zoning boards” and overturn a board’s legislative efforts....
The planned unit development concept varies from the traditional concept of zoning classifications. It permits a flexible approach to the regulation of land uses. Compliance must be measured against certain stated standards ....
[Sjince the Board was called upon to review an interpretation and application of an ordinance ... and the ordinance was not challenged per se, the Board’s decision was “clearly quasi-judicial.”

Hirt, 578 So.2d at 417 (citations omitted) (emphasis added). The paramount issue for our consideration is whether the availability of certiorari review precluded Sutton and Banwarth from raising their challenge to the rezoning in a declaratory judgment action filed after the time for seeking certiorari review had expired. For reasons that we will discuss, we hold that it did.

The argument that the City urges in support of its timeliness challenge to the present action received sympathetic consideration from the district court. That court’s reaction to this timeliness challenge was as follows:

It is hard to understand why a litigant should be able to use a procedure of general application (declaratory judgment) as an alternative to a procedure specifically designed for challenging the legality of actions of governmental bodies (certiorari) and thereby avoid the time limit on certiorari actions. This path vitiates the 30-day time limit created by I.R.C.P. 1.1402(3) and defeats the public policy considerations noted in Sergeant Bluff-Luton [School District v. City Council of Sioux City, 605 N.W.2d 294 (Iowa 2000) ], favoring prompt resolution of challenges to city decisions. Nevertheless, the Supreme Court specifically said in Fox [v. Polk County Bd. of Supervisors, 569 N.W.2d 503 (Iowa 1997) ], that certiorari is not an exclusive remedy and that declaratory judgment can also be used to raise legality issues.

The City urges on this appeal that the same policy considerations discussed by the district court should convince us to apply the short statute of limitations provided for certiorari actions. Sutton and Banwarth urge the affirmance of the district court’s ruling on this issue based on our recognition in Fox and in Bormann v. Kossuth County Board of Supervisors, 584 N.W.2d 309, 313 (Iowa 1998), that a declaratory judgment is an alternative procedure for challenging the illegality of municipal zoning. We are satisfied that our decisions in Fox and Bormann do not control the present dispute.

The dispute in Fox involved a petition in four counts. Counts I and III were requests for certiorari review of county board of supervisors zoning decisions. Counts II and IV were actions for declaratory judgment. Count IV challenged various aspects of the zoning decision. Count II asserted that the zoning constituted a taking without compensation. The district court dismissed Counts II and IV on the ground that certiorari was the exclusive remedy to raise the matters plaintiff sought to litigate. On the certiorari counts, the district court ruled in favor of the county board. We affirmed the latter ruling on appeal. With regard to the declaratory judgment counts, we stated that the declaratory judgment procedure was an alternative means of raising the challenges advanced in both Counts II and IV. We held, however, that the claim of Count IV duplicated the claims presented in the certiorari counts and should meet a similar fate. We remanded Count II, the taking claim, for further proceedings in the district court:

Our treatment of the taking claim in Fox is consistent with our treatment of a similar claim in Bormann in which we allowed a taking claim to proceed by declaratory judgment. The rationale for that determination in both Fox and Bormann is that the taking claims involved an unlawful application of the ordinance to a particular property owner and not an illegal act in connection with the enacting of the ordinance. We do not retreat from our treatment of the taking clause issues in Fox and Bormann. We do retreat, however, from our conclusion in Fox that Count IV, which duplicated the illegality challenges raised in the certiorari counts, could be asserted by means of a declaratory judgment action.

Although the existence of another remedy does not ordinarily preclude a court from granting declaratory relief, we have refused to apply that principle when there is another adequate remedy provided by law that is intended to be exclusive. City of Des Moines v. Des Moines Police Bargaining Unit Ass’n, 360 N.W.2d 729, 730-31 (Iowa 1985). We have applied this principle with respect to review of administrative agency action. We are convinced that a similar exclusivity of remedy should exist as to the review of decisions of city councils or county boards of supervisors acting in a quasi-judicial capacity when the claimant alleges illegality of the action taken. We clearly stated that this was the case in Lewis Investments, Inc. v. City of Iowa City, 703 N.W.2d 180, 185 (Iowa 2005). We also applied this principle in an analogous context in Sergeant Bluff-Luton School District v. City Council of Sioux City, 605 N.W.2d 294 (Iowa 2000).

In Sergeant Bluff-Luton, the district court concluded that the inclusion of certain property in an urban renewal project was illegal and that, consequently, a tax levy based on such inclusion was also illegal. The district court sustained a writ of certiorari and also granted a declaratory judgment that the tax levy was a nullity. On appeal, we found that the certiorari action had not been filed in a timely manner and ordered that action be dismissed. With regard to the school district’s request for declaratory judgment we stated:

[W]e conclude that the district court erred in deciding that the taxes levied were illegal. This is because the legality of the taxes levied does not exist independent from the city’s 1994 decision to include Virginia Meadows in the urban renewal project, which is the alleged illegal action that is the subject of the school district’s certiorari petition....
... [Tjhere are important public policy reasons for limiting the time during which a party can challenge city decisions and resulting regular tax levies. City officials must be able to prepare budgets and levy taxes for an appropriate time period, based upon established figures and past decisions, without the threat of later challenges to the legality of such decisions that are made after [the statutory limit for bringing certiora-ri actions has] run.

Sergeant Bluff-Luton, 605 N.W.2d at 298. Equally important policy considerations militate in favor of a short period of limitations in challenging rezoning based on some claim of illegality in the enactment of the ordinance. We hold that certiorari was the proper and exclusive remedy for asserting Sutton’s and Banwarth’s conflict-of-interest challenge to the PUD zoning. As a result of this conclusion, we need not consider other challenges raised by the City to the district court’s decision.

II. The Appeal by Sutton and Ban-warth.

In their appeal, Sutton and Banwarth assert that the district court erred in rejecting other challenges that they made to the PUD rezoning. In these challenges they assert that the rezoning process (1) involved a violation of the open meetings law, (2) served to unlawfully interfere with a publicly dedicated park, (3) failed to comply with ordinance requirements for off-street parking, (4) was contrary to the city’s comprehensive plan, and (5) was the result of arbitrary and capricious action in its passage.

Rather than determine whether any of these claims could be brought by means other than certiorari, we have reviewed each claim on the merits and are satisfied that the district court’s ruling on each of these issues was correct.

Based on the conclusions we have reached in Division I of this opinion, we hold that Sutton’s and Banwarth’s action in the district court was untimely and must be dismissed on that ground.

REVERSED ON CITY’S APPEAL; AFFIRMED ON OBJECTORS’ APPEAL.

      . It was determined by pretrial ruling that this action, in legal effect, is against the City, rather than council members.

      . A leading authority on zoning law describes planned unit development zoning as a process that "allows [a] municipality to control the development of individual tracts of land by specifying the permissible form of development in accordance with the city’s PUD ordinance.... The planned unit development process provides more flexibility to municipalities than does traditional Euclidean zoning.” 2 R. Anderson, American Law of Zoning 3d § 11.12 (1986). Approval of such zoning requires a finding that the proposed development qualifies under the provisions of the ordinance authorizing PUD zoning.