author: MARING, Justice. MARING, Justice,

text:
    2000 ND 203
    Judy M. LOGAN, f/k/a Judy M. Bush, Plaintiff and Appellant, v. John M. BUSH, Defendant and Appellee.
    No. 20000090.
    Supreme Court of North Dakota.
    Dec. 7, 2000.
    Opinion Denying Rehearing Jan. 30, 2001.

      Thomas Dayton Fiebiger, Fargo, ND, for plaintiff and appellant.
    Daniel E. Bertsch, Assistant State’s Attorney, Regional Child Support Enforcement Unit, Fargo, ND, for defendant and appellee.
   MARING, Justice.

[¶ 1] Judy Logan appealed from an amended judgment modifying her child support obligation. We affirm in part, reverse in part, and remand for further proceedings.

I

[¶ 2] Judy Logan and John Bush were divorced in 1990. The parties were awarded joint custody of their three minor children, with physical custody alternating every three months. An amended judgment was entered on January 31, 1994, granting custody to Bush with Logan to have summer visitation “not exceeding two months.” Logan was ordered to pay child support as follows:

Plaintiff shall pay and the Defendant shall receive child support for the three minor children, in an amount of $758.00 per month. Said payments will be prorated upon a ten month (10) period to reflect an average payment of $632.00 per month. Payment of the amount in child support shall continue until the child attains the age of eighteen (18) years or if, upon attaining the age of eighteen (18) years, the child has not yet graduated from high school and continues to reside with Defendant, until the child’s graduation from high school, but in no event shall the child support obligation continue beyond the child’s nineteenth (19th) birthday.

[¶ 3] Logan remarried and moved to California, where her income increased substantially. The parties’' eldest daughter, Stephanie, turned eighteen in August 1997 and graduated from high school in May 1998. Despite these changes in circumstances, neither party sought modification of the support provisions of the 1994 amended judgment, and Logan continued to pay child support based upon $758 per month.

[¶ 4] In 1999, Bush authorized the Regional Child Support Enforcement Unit to establish an appropriate support obligation. On September 7, 1999, the State, on Bush’s behalf, brought a motion to amend the 1994 amended judgment and increase Logan’s child support obligation. Logan responded by filing a motion for correction of judgment under N.D.R.Civ.P. 60(a), seeking a credit for child support paid on behalf of Stephanie Bush after May 1998.

[¶ 5] In September 1999, while the matter was pending, Logan’s husband quit his job in California and joined the active duty component of the Army Reserves. He was assigned to Arizona. Logan then quit her nursing job in California and moved to Arizona, where she accepted a lower paying nursing position. When Logan left California she was earning $30 per hour; her Arizona position paid $22 per hour. Logan receives additional income as a member of the Army Reserves.

[¶ 6] A hearing was held before a referee on December 14, 1999. The referee issued findings of fact and conclusions of law, ordering Logan to pay child support of $1,682 per month for the two minor children, based upon imputed income under N.D. Admin.Code § 75-02-04.1-07(9); concluding Logan was not entitled to an adjustment of support for extended visitation under N.D.Admin.Code § 75-02-04.1-08.1; and concluding Logan was not entitled to a credit for alleged overpayment of support for Stephanie after May 1998. The district court affirmed the referee’s findings of fact and conclusions of law, and a second amended judgment was entered on March 15, 2000. Logan appealed.

II

[¶ 7] Logan argues her child support should have been calculated solely upon her reduced income in Arizona, and that it was error to impute income to her under N.D.Admin.Code § 75-02-04.1-07(9) based upon her prior income in California.

[¶ 8] We recently summarized our standard of review of determinations on matters of child support:

Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review. A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obli-gor’s child support obligation. As a matter of law, the district court must clearly set forth how it arrived at the amount of income and level of support. The trial court’s findings of fact in making its child support determination are overturned on appeal only if they are clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made.

Lauer v. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450 (citations omitted); see also Christl v. Swanson, 2000 ND 74, ¶ 7, 609 N.W.2d 70; Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215.

[¶ 9] Under the Child Support Guidelines, an obligor’s ability to pay child support is not determined solely upon actual income, but also takes into account the obligor’s earning capacity. Buchholz, 1999 ND 36, ¶ 13, 590 N.W.2d 215; Otterson v. Otterson, 1997 ND 232, ¶ 10, 571 N.W.2d 648. Accordingly, N.D.Admin.Code § 75-02-04.1-07(9), which was adopted effective August 1,1999, provides:

Notwithstanding subsections 4, 5, and 6, if an obligor makes a voluntary change in employment resulting in reduction of income, monthly gross income equal to one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed without a showing that the obligor is unemployed or underemployed.

[¶ 10] Logan argues our prior cases clearly require a showing of underemployment, through evidence demonstrating the obligor is earning less than the prevailing amounts earned by other persons with similar work history in the community, before income may be imputed under the guidelines. Logan cites Lauer, 2000 ND 82, 609 N.W.2d 450, Henry v. Henry, 2000 ND 10, 604 N.W.2d 234, and Nelson v. Nelson, 547 N.W.2d 741 (N.D.1996), in support of her argument. Those cases, however, involved application of other imputation of income provisions in N.D.Admin.Code § 75-02-04.1-07, not subsection *9. The only case which mentions subsection 9 is Lauer, in which we concluded the district court had not made a finding the obligor had voluntarily changed employment and had not applied subsection 9 in determining child support.

[¶ 11] Section 75-02-04.1-07(9) unambiguously allows imputation of income without a showing of underemployment. Under this guideline provision, the court is authorized to impute income based upon the obligor’s prior earning history, without a showing the obligor is unemployed or underemployed, if the obligor has voluntarily changed employment resulting in a reduction in income. Our prior cases addressing other imputation of income provisions are inapposite. They do not support the argument that one must show unemployment or underemployment before income may be imputed under N.D.Admin.Code § 75-02-04.1-07(9).

[¶ 12] Logan also asserts that her decision to change jobs was reasonable under the circumstances and therefore, under the “rule of reason” adopted in Olson v. Olson, 520 N.W.2d 572 (N.D.1994), income may not be imputed to her. Logan argues that, if income may be imputed whenever an obligor voluntarily changes jobs, it will place inordinate restrictions upon the obli-gor’s freedom to make employment decisions.

[¶ 13] In Olson, 520 N.W.2d at 574, this Court held:

In effect, we are adopting a “rule of reason.” If the obligor’s voluntary change in employment and earnings is reasonable under all of the circumstances, including the best interests of the children, then additional income cannot be imputed based on earning capacity, and child support should be computed upon actual net monthly income. If, however, an obligor with an established earnings history voluntarily, without good reason, places himself in a position where he is unable to meet his child support obligations, income compatible with his prior earnings history may be imputed in calculating child support under the guidelines.

[¶ 14] Olson was decided before the promulgation of N.D.Admin.Code § 75-02-04.1-07(9). The current guidelines do not expressly incorporate a “reasonableness” rule which would preclude imputation of income when an obligor’s voluntary reduction of income was “reasonable.” We do not mean to imply, however, that the obligor’s reasons for changing employment, and reasonableness of her actions, are wholly irrelevant to the decision to impute income under N.D.Admin.Code § 75-02-04.1-07(9). That section provides that the court “may” impute income when an obligor has voluntarily reduced her income. When a court may do something, it is not mandatory but is generally a matter within the court’s discretion. Christl, 2000 ND 74, ¶7, 609 N.W.2d 70; Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. Thus, the court may consider the reasons for the obligor’s change of employment when exercising its discretion in determining whether to impute income under N.D.Admin.Code § 75-02-04.1-07(9).

[¶ 15] A parent has a duty to support her children to the best of her abilities, not simply to her inclinations. Henry, 2000 ND 10, ¶ 6, 604 N.W.2d 234; Otterson, 1997 ND 232, ¶ 10, 571 N.W.2d 648. The guidelines represent an effort to balance an obligor’s freedom to make employment decisions with the duty to diligently and fully support her children. See Henry v. Henry, 1998 ND 141, ¶ 14, 581 N.W.2d 921; Nelson, 547 N.W.2d at 746. An obligor is still free to change jobs, but if the result of the change is a decrease in income the obligor who made the change should make a greater sacrifice than her children. See Henry, 1998 ND 141, ¶ 14, 581 N.W.2d 921; Nelson, 547 N.W.2d at 746. Section 75-02-04.1-07(9), N.D.Admin.Code, embodies these principles.

[¶ 16] Under the guidelines, an obligor remains free to change jobs and take a reduction in income. She does so, however, with the knowledge that she must bear the burden of her decision, and may be called upon to support her children at a level based upon her previous income for up to thirty-six months after the change of employment. See Summary of Comments Received in Regard to Proposed Amendments to N.D.Admin.Code ch. 75-02-04.1, Child Support Guidelines, p. 36 (June 14, 1999) (prepared by Blaine L. Nordwall).

[¶ 17] In this case, the referee found that Logan had voluntarily changed employment resulting in a reduction in income. That finding is supported by Logan’s testimony at the hearing, in which she admitted she voluntarily left her job in California and accepted new employment at a lower salary in Arizona. Under these circumstances, imputation of income was authorized under N.D.Admin.Code § 75-02-04.1-07(9).

Ill

[¶ 18] Logan contends that, even if imputation of income was authorized under N.D.Admin.Code § 75-02-04.1-07(9), the referee erred in calculating the amount to be imputed. We agree.

[¶ 19] When a court decides to impute income after an obligor’s voluntary reduction in income, N.D.Admin.Code § 75-02-04.1-07(9) clearly sets out the formula which must be used to calculate imputed income:

monthly gross income equal to one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed....

In effect, under this provision child support will be calculated based upon the average of the obligor’s twelve highest consecutive monthly earnings beginning three years prior to initiation of the current proceedings. s

[¶ 20] The referee found Logan’s 1998 earnings included $76,381 .86 from her California nursing positions and $7,309.16 from the Army Reserves, for total annual income of $83,691.02. The referee found Logan earned $69,927.47 for the first nine months of 1999 from her California employer, $13,840.00 from her Arizona employer for the last three months of 1999, and $7,538.54 from the Army Reserves, for a total 1999 income of $91,306.00. The referee did not, however, use either of those figures to calculate the amount to impute to Logan. Rather, the referee found:

Had the Plaintiff remained at her job at Tenet [in California] she would have earned approximately $93,236.63 ([$69,-927.47 + 9] x 12), plus the additional income from the Army Reserve, for a total income of $100,775.17 in 1999.

The referee then imputed income to Logan based upon the $100,775.17, which was a hypothetical approximation of what Logan would have earned had she remained at her job in California.

[¶ 21] Section 75-02-04.1-07(9) clearly requires the court to calculate imputed income based upon an obligor’s actual income in a prior twelve-month period. The court cannot pick the highest nine months and extrapolate that to a twelve-month' figure. Logan did not actually earn $100,775.17 in any twelve-month period. Accordingly, the referee erred in imputing income based upon that figure.

[¶ 22] Because this proceeding was commenced on September 7, 1999, N.D.Admin.Code § 75-02-04.1-07(9) required that income be imputed based upon Logan’s highest actual earnings in a consecutive twelve-month period, commencing on or after September 7, 1996, for which reliable evidence was provided. The highest twelve-month period for which reliable evidence was presented in this case is Logan’s 1999 income of $91,306.00. Accordingly, we reverse and remand for recalculation of child support, with income imputed under N.D.Admin.Code § 75-02-04.1-07(9) based upon Logan’s 1999 income of $91,306.00.

IV

[¶ 23] Logan contends she was entitled to an adjustment of child support under N.D.Admin.Code § 75-02-04.1-08.1 because she has extended visitation with the children. We agree.

[¶ 24] The 1999 Legislative Assembly amended the statutory authority for the Child Support Guidelines to require that the guidelines “[i]nclude consideration of extended periods of time a minor child spends with the child’s obligor parent.” N.D.C.C. § 14-09-09.7(l)(e); see 1999 N.D. Sess. Laws ch. 144, § 1. The Senate Judiciary Committee adopted a Statement of Intent regarding the bill:

STATEMENT OF INTENT
It is the intent of this amendment to direct the Department of Human Services to include in the child support guidelines consideration of extended periods of time a minor child spends with the child’s obligor parent. The guidelines should consider extended periods of time to mean those situations where an obligor parent has custody of the child for 60 out of 90 consecutive days, or in instances where the parties will have joint physical custody with the child residing with each parent close to equal time. The phrase “close to equal time” shall mean where each parent has physical custody of the child at least 45% of the time.

[¶ 25] In response to the Legislative directive, the Department of Human Services promulgated N.D.Admin.Code § 75-02-04.1-08.1, which provides a complex formula for calculating the child support obligation “if a court order provides for extended visitation between an obligor and a child living with an obligee.” N.DAd-min.Code § 75-02-04.1-08.1(2). Extended visitation is defined in N.D.Admin.Code § 75-02-04.1-08.1(1):

For purposes of this section, “extended visitation” means visitation between an obligor and a child living with an obligee scheduled by court order to exceed sixty of ninety consecutive nights or an annual total of one hundred sixty-four nights.

[¶ 26] The State argues this provision should not apply because Logan did not establish she had actually exercised visitation with the children for sixty of ninety consecutive nights during the summer of 1998. The State’s argument misinterprets the focus of the rule. The rule requires consideration of length of visitation “scheduled by court order,” not the amount of visitation actually exercised. The comments of the drafters of N.D.Admin.Code § 75-02-04 .1-08.1 clarify the issue:

The mechanism for establishing whether extended visitation existed was designed to avoid repeated litigation or dispute over the amount of actual visitation. This is done by determining that extended visitation exists only if the visitation is described in the court order. That court order, at the same time, can accommodate the extended visitation with an adjustment to the child support obligation. If actual visitation proves inconsistent with ordered visitation, the parties can return to court and get both the visitation and the child support adjusted at the same time.
We do not recommend that the adjustment be based on other than visitation scheduled by court order. If the parties do not actually engage in the scheduled visitation, the appropriate solution is to revisit the court order, not to seek support adjustments (or a lack of adjustment) that are at odds with the visitation order. By considering only visitation scheduled by court order, the entanglements between child support determinations and visitation determinations are reduced.

Summary of Comments Received in Regard to Proposed Amendments to N.D.Admin.Code ch. 75-02-04.1, Child Support Guidelines, pp. 37, 39-40 (June 14, 1999) (prepared by Blaine L. Nordwall). A recent agency determination on the matter lends further support to this conclusion:

So long as the visitation schedule in the court order meets the definition of extended visitation, the obligor is entitled to the extended visitation adjustment regardless of whether or how much visitation is actually exercised....
By tying the applicability of the extended visitation adjustment to the court-ordered visitation schedule, disputes about whether visitation was or was not exercised and the amount of visitation that was or was not exercised are reduced. If the court-ordered visitation schedule is not reflective of the actual visitation exercised, the appropriate solution is to seek an amendment to the visitation schedule.

IV-D Informational Communication IC-CO-00-07, RE: Child Support Guidelines, N.D.Admin.Code § 75-02-04.1-08.1: Extended Visitation-Applicability Determined by Visitation Schedule in Court Order (N.D. Dep’t of Human Services) (September 19, 2000).

[¶ 27] The State also suggests the visitation provisions in the amended judgment did not schedule visitation exceeding sixty of ninety consecutive nights. The relevant portion of the judgment states:

VISITATION: Plaintiff shall have liberal visitation rights to include summer visitation, not exceeding two months. Summer visitation shall commence no sooner than one week after the close of the children’s school, nor end later than one week before the beginning of their next school year.

[¶ 28] The question is whether “summer visitation, not exceeding two months” constitutes extended visitation exceeding sixty of ninety consecutive nights under N.D.Admin.Code § 75-02-04.1-08.1(1). We have no doubt the rule would apply if the judgment had ordered, for example, visitation from June 15 through August 15. This would clearly exceed sixty days. Similarly, if the judgment had ordered “summer visitation of two months,” again the rule would apply, because any full two-month period between the end of one school year and the beginning of the next will necessarily encompass at least sixty-one days.

[¶ 29] Thus, the State’s argument hinges upon semantics: If the court orders two months’ summer visitation, the rule applies, but if it orders “summer visitation, not exceeding two months,” the rule does not apply. We believe this is a distinction without a difference.

[¶ 30] Interpretation of a judgment is a question of law, which is fully reviewable on appeal. In re S.J.F., 2000 ND 158, ¶ 14, 615 N.W.2d 533; Jorgenson v. Ratajczak, 1999 ND 65, ¶ 13, 592 N.W.2d 527. We interpret this judgment to entitle Logan to exercise summer visitation exceeding sixty days. The mere fact the court used the language “not exceeding two months” does not suggest Logan was entitled to only some lesser, unspecified amount of visitation. Rather, we believe the language employed by the court was in recognition of the fact it was not designating the specific two-month period, i.e. “June 15 to August 15,” but allowing flexibility for the parties to determine the precise two-month period each year. This interpretation is bolstered by the further provision in the judgment that the ordered visitation was to commence no sooner than one week after school closed, and was to end at least one week before the beginning of the next school year. The court clearly intended to allow the parties to work out the specifics of the visitation, but the language employed does not suggest that Logan was somehow entitled to less than two full months of visitation.

[¶ 31] The Child Support Guidelines were adopted in response to the Legislature’s desire for greater specificity and uniformity in the determination and enforcement of child support obligations. See Nelson v. Nelson, 547 N.W.2d 741, 746 (N.D.1996). It would not serve the purpose of specificity and uniformity if application of N.D.Admin.Code § 75-02-04.1-08.1 were to turn on minute variations in the language employed in visitation orders. The clear intent in this case was Logan would have extended summer visitation of two months, with the exact dates to be determined by the parties. The logical reading of the judgment is that it “schedules” visitation “by court order” exceeding “sixty of ninety consecutive nights,” and therefore child support must be calculated under N.D.Admin.Code § 75-02-04.1-08.1.

V

[¶ 32] Logan contends the referee erred in failing to provide a credit for child support paid on behalf of Stephanie Bush after her graduation from high school in May 1998. When the divorce judgment was amended in 1994, Logan was ordered to pay child support of $758 per month for ten months of each year, prorated to equal monthly installments of $632. The judgment further provided support would continue until “the child” turned eighteen or graduated from high school, whichever occurred later.

[¶ 33] Although Stephanie turned eighteen in 1997 and graduated from high school in May 1998, neither party sought a modification of child support and Logan continued to pay $632 per month until the present motion was brought in September 1999. In response to the motion, Logan moved for “correction” of the judgment under N.D.R.Civ.P. 60(a), arguing that, based upon our decision in Steffes v. Steffes, 1997 ND 49, 560 N.W.2d 888, she was entitled to a credit for support paid on behalf of Stephanie after May 1998. She argues that the guideline amount for two children, based upon her income at the time of the 1994 modification, would have resulted in a support obligation $100 lower for each month after May 1998.

[¶ 34] In Steffes, the original 1983 stipulated divorce decree provided Allen Steffes would pay child support of $200 per month for each of the parties’ three children. The stipulated decree further provided support would continue past age eighteen for each child if the child continued to live at home or was a full-time student. In 1990, the parties agreed to increase Allen’s monthly child support obligation to $225 per child, for a total of $675. The amended judgment incorporating this change stated Allen’s obligation as “$675 per month,” and not on a per child basis. Steffes, 1997 ND 49, ¶ 3, 560 N.W.2d 888. In July 1993, Allen moved to reduce child support, arguing the oldest child had reached the age of majority and was not a full-time student. The court found she was a full-time student, and further concluded the $675 monthly obligation was within the range of support under the Child Support Guidelines for three children based upon Allen’s $1,900 monthly income.

[¶ 35] In December 1995 Allen again moved to modify, arguing the two older children were no longer living at home and were not full-time students. Allen also moved for correction of the 1990 amended judgment under N.D.R.Civ.P. 60(a) to correct a clerical mistake because the judgment did not order support on a per child basis. He therefore sought a credit for child support erroneously paid for the two older children on a pro rata basis.

[¶ 36] We concluded Allen was entitled to a credit for child support for those months in which support did not accrue because the contingencies in the judgment for post-majority support had not been met. Steffes, 1997 ND 49, ¶21 22, 560 N.W.2d 888. We also concluded, however, that Allen was not entitled to a pro rata credit; rather, the guidelines required that Allen’s support should be recalculated based upon the number of children eligible each month. Id. at ¶ 27-29. Because the period for which recalculation was necessary began when the oldest daughter became ineligible in January 1994, only a few months after the 1993 modification proceeding, we directed child support be recalculated based upon Allen’s $1,900 monthly salary at that time.

[¶ 37] In applying Steffes to this case, we first note that Steffes was not decided based upon N.D.R.Civ.P. 60(a). The “clerical mistake” in Steffes was irrelevant, because we held Allen was not entitled to a pro rata reduction and credit. Rather, public policy required recalculation of support under the guidelines. Steffes, 1997 ND 49, ¶ 28, 560 N.W.2d 888. We concluded the proper remedy was not correction of the judgment, but “an accounting and credit for child support which did not accrue.” Id. at ¶ 22.

[¶ 38] In this case, Logan has moved for correction' of a “clerical mistake” under N.D.R.Civ.P. 60(a), but has not drawn our attention to any clerical error in the judgment. Her motion under N.D.R.Civ.P. 60(a) appears to be based upon a misinterpretation of the basis of our holding in Steffes. The proper remedy, if any, for Logan’s alleged overpayment of support is, as in Steffes, an accounting and credit for support wrongfully paid.

[¶ 39] Logan argues our holding in Steffes requires that she receive a credit for the months of June 1998 through August 1999 by recalculating her child support for two children based upon her income at the time of the 1994 modification. Logan misconstrues our holding in Steffes. Although we directed that Allen’s child support be recalculated based upon his income as shown in the 1993 modification proceedings, only a few months had passed between those proceedings and the January 1994 date when he was no longer obligated to pay support for the oldest child. There was no showing his income had substantially changed, and therefore recalculation based upon the $1,900 monthly income was appropriate.

[¶ 40] The facts in this case are markedly different. At the time Stephanie graduated from high school in 1998, Logan was still paying support based upon the 1994 amended judgment. The record shows that, at the time of the 1994 modification, Logan’s gross annual income was less than $40,000. When Stephanie graduated from high school more than four years later in 1998, and Logan’s support obligation for her ceased, Logan’s annual income had more than doubled to $83,691.02. Logan concedes that, had a motion been brought to modify support when Stephanie graduated in 1998, Logan’s support for two children based upon her income at that time would have been higher than the $632 she was paying. It is therefore understandable that Logan did not move to modify her child support obligation when Stephanie graduated, but continued to pay the $632. Now, after the State has finally moved to modify Logan’s support, she claims the right to reimbursement even though she has, in fact, been paying less than the guideline amount throughout the relevant period.

[¶41] Allowing Logan a credit for “overpayment” of support, when in fact she has been significantly underpaying and depriving her children of support at the level to which they were entitled, would be grossly unfair and inequitable. Logan was free at any time to move for a modification of child support after her obligation to Stephanie ceased in May 1998. We will not reward her inaction by allowing a credit for a phantom “overpayment.” An accounting is an equitable remedy, subject to the respective equities of the parties. See Farm Credit Bank of St. Paul v. Brakke, 483 N.W.2d 167, 174 (N.D.1992); Patten v. Green, 397 N.W.2d 458, 459 (N.D.1986); Stuber v. Taylor, 200 N.W.2d 276, 280 (N.D.1972); 1 Am.Jur.2d Accounts and Accounting § 52 (1994). In this case, the equities clearly do not he with Logan.

[¶ 42] We conclude the failure to allow a credit to Logan for “overpayment” of child support after May 1998 was not error.

VI

[¶ 43] We affirm that portion of the amended judgment allowing imputation of income to Logan and denying her a credit for child support paid on behalf of Stephanie after May 1998. We reverse the portion of the amended judgment setting the amount of support and remand for recalculation of child support in accordance with this opinion.

[¶ 44] VANDE WALLE, C.J., NEUMANN, SANDSTROM, KAPSNER, JJ., concur.

MARING, Justice,

on petition for rehearing.

[¶ 45] Logan has petitioned for rehearing, arguing this Court erred in remanding for recalculation of child support with income imputed based upon Logan’s 1999 income. Logan contends N.D.Admin.Code § 75-02-04.1-07(9) allows imputation of income based only upon a twelvemonth period falling within the thirty-six months before the proceeding was commenced. Because this proceeding was commenced on September 7, 1999, Logan argues income may not be imputed based upon the last three months of 1999.

[¶ 46] Logan has misconstrued the administrative rule. Section 75-02-04.1-07(9) specifies how imputed income is to be calculated:

monthly gross income equal to one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed.... (Emphasis added).

[¶ 47] The administrative rule requires that the twelve-month period begin within the thirty-six months before the proceeding was commenced, but not that the twelve-month period conclude prior to commencement of the proceeding. Accordingly, it is permissible in this case to impute income based upon Logan’s actual 1999 income, because that twelve-month period began “on or after thirty-six months before” this proceeding was commenced on September 7,1999, and the actual numbers were available at the time of the hearing.

[¶ 48] VANDE WALLE, C.J., NEUMANN, SANDSTROM, KAPSNER, JJ., concur.

      . It appears Logan's highest-earning twelvemonth period may actually have been October 1998 through September 1999, her last twelve months with her California employer. The State concedes, however, that it did not provide specific evidence of Logan’s earnings for the last three months of 1998, but merely provided evidence of her total 1998 earnings.

      . We note that N.D.Admin.Code § 75-02-04.1-08.1 does not allow a total reduction of child support for those days the obligor parent has the child. Rather, the formula requires payment of sixty-eight percent of the regular support amount for those scheduled visitation days, with that pro rata amount then used to calculate equal monthly payments. See N.D.Admin.Code § 75-02-04.1-08.1(2).

      . The amended judgment leaves the door open for a repeat of this situation. The parties’ second child, Amanda, will turn eighteen in March 2001 and is scheduled to graduate from high school in May 2001. Logan requested that the referee address this situation and specify the amount of support which will be due when Logan’s obligation to support Amanda ceases in June 2001. This issue was not addressed in the findings, conclusions, or amended judgment.
      Logan again asks on appeal that this issue be resolved without the need to return to court again in a few months. The State likewise concedes that it would have been appropriate for the referee to set the amount of support to be due after Amanda graduates. On remand, it will be only a few months until Amanda's scheduled graduation, and, inasmuch as Logan’s support is based upon imputed prior income, it is unlikely there will be a significant change in income warranting use of a different amount to calculate support. Under these circumstances, we direct that upon remand the referee or trial court should reconsider whether to prospectively set the amount of support which will be due when Logan’s support obligation to Amanda ceases.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2001 ND 12
    The CITY OF HARVEY, Plaintiff and Appellant, v. Kyle FETTIG, Defendant and Appellee.
    No. 20000185.
    Supreme Court of North Dakota.
    Jan. 30, 2001.

      Kathleen K. Trosen, City Attorney, Harvey, ND, for plaintiff and appellant.
    Michael S. Mclntee, Mclntee Law Firm, Towner, ND, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] The City of Harvey has appealed from an order granting, in part, Kyle Fet-tig’s motion to suppress evidence. We dismiss the appeal because the City’s notice of appeal was not accompanied by a statement of the prosecuting attorney as required by N.D.C.C. § 29-28-07(5).

[¶ 2] In the early morning hours of November 5,1999, Harvey police officer Marc Balfour noticed a pickup driving without lights. He activated his overhead lights and the pickup stopped near one side of the street, but with part of the pickup still in the driving lane. Balfour approached the vehicle but could not see anyone inside. As Balfour walked to the rear of the pickup he heard one of the doors slam shut and saw a young male flee. Balfour was unable to apprehend the man.

[¶ 3] The pickup was eventually towed to the Harvey City Hall, where a warrant-less search of the vehicle was conducted. Among other items, officers found alcoholic beverages in the pickup. Because the pickup was registered to Fettig, and Fet-tig’s wallet and driver’s license were found in the pickup, Balfour went to Fettig’s home and questioned him about the incident. Fettig admitted he had been driving the pickup and that there was beer in the pickup.

[¶ 4] Fettig was ultimately charged with minor in possession, open container, fleeing a peace officer, care required, and a parking violation. Fettig moved to suppress all evidence seized from the pickup and the statements he made during the interview at his home. After an evidentia-ry hearing, the trial court concluded the warrantless search of Fettig’s pickup violated the Fourth Amendment. The court therefore suppressed all evidence relating to alcohol found in the pickup and any statements made by Fettig relating to that evidence, but refused to suppress other statements made by Fettig. The City filed an interlocutory appeal from the trial court’s suppression order.

[¶ 5] The prosecution’s right to appeal in a criminal case is strictly limited by statute. State v. Norton, 2000 ND 153, ¶ 5, 615 N.W.2d 531 (2000); State v. Schindele, 540 N.W.2d 139, 141 (N.D.1995). Section 29-28-07(5), N.D.C.C., allows the prosecution to appeal from

An order granting the return of property or suppressing evidence, or suppressing a confession or admission, when accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding. The statement must be filed with the clerk of district court and a copy must accompany the notice of appeal.

[¶ 6] The prosecutor’s statement cannot be a mere paraphrase of the statutory language, but must have substance. Norton, 2000 ND 153, ¶ 5, 615 N.W.2d 531; Schindele, 540 N.W.2d at 141. Prosecutors must support their appeals with an explanation of the relevance of the suppressed evidence. Norton, at ¶ 5; Schindele, at 141. The purpose of the statutory requirement is to ensure that the prosecutor has carefully evaluated the State’s case, and the actual effect of the suppression order, before filing the notice of appeal. Norton, at ¶ 5; Schindele, at 141; State v. Grant, 361 N.W.2d 243, 245 (N.D.1985). The State’s right to appeal hinges on a favorable review of the prosecutor’s statement by this Court. Schindele, at 141.

[¶ 7] The City in this case filed a document entitled “NOTICE OF MOTION AND MOTION FOR CONTINUANCE and NOTICE OF APPEAL.” The City contemporaneously filed numerous other documents, including an affidavit of the prosecuting attorney. The affidavit contains no mention of N.D.C.C. § 29-28-07(5) or the required prosecutor’s statement, but rather was clearly intended to support the City’s motion for continuance. The affidavit does include the following statement: “The Plaintiff believes that the Evidence is material to the Plaintiffs case in chief, and the Plaintiff would not be able to properly present the charges against the Defendant without a ruling upon whether or not the Court’s Order Suppressing Evidence is supported by law and fact.” There is no language in the affidavit indicating the appeal is not taken for the purpose of delay, nor any explanation of the relevance and importance of the suppressed evidence.

[¶ 8] The “statement” in the prosecutor’s affidavit at best merely paraphrases one of the two prongs required by the statute, and fails to outline the specific relevance of and need for the evidence which was suppressed. Accordingly, we conclude the City has failed to comply with the requirements of N.D.C.C. § 29-28-07(5), and we dismiss the appeal.

[¶ 9] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., concur.

      . Because we dismiss the appeal for failure to comply with N.D.C.C. § 29-28-07(5), we need not address whether this omnibus document satisfies the requirements of a notice of appeal under N.D.R.Crim.P. 37 and N.D.R.App.P. 3.


author: MARING, Justice.

text:
    2001 ND 13
    Rosemary J. HURT, Plaintiff and Appellee, v. Raymond J. HURT, Defendant and Appellant.
    No. 20000177.
    Supreme Court of North Dakota.
    Jan. 30, 2001.

      Eugene F. Buresh, Ficek & Buresh, P.C., Dickinson, ND, for defendant and appellant.
    Robert A. Keogh, Keogh Law Office, Dickinson, ND, for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Raymond Hurt appeals from a divorce judgment awarding custody of the parties’ two children to Rosemary Hurt. We affirm.

I

[¶ 2] Raymond and Rosemary Hurt were married December 28, 1990. At the time of the marriage, Rosemary had six children, five of whom were from a previous marriage. Rosemary’s sixth child, Timothy, was from a previous relationship. Following the parties’ marriage, Raymond adopted Timothy, and subsequently, the couple had a child of their own.

[¶ 3] In February 1998, Raymond allegedly committed an act of physical abuse. As a result of the incident, Rosemary obtained a temporary adult abuse protection order on February 20, 1998, and an adult abuse protection order on March 6, 1998. After the incident occurred, Rosemary and the parties’ two children moved into a domestic violence shelter where they remained until April of 1998. In October 1998, Raymond allegedly committed a second act of physical abuse, and on October 12, 1998, Rosemary obtained a temporary domestic violence protection order. On October 28, 1998, Rosemary obtained a domestic violence protection order, and the order remained in effect until February 11, 1999. Following the second incident of physical abuse, Rosemary and the children once again moved into the domestic violence shelter where they remained until February 11,1999.

[¶ 4] Shortly after moving out of the domestic abuse shelter, Rosemary sued for divorce. The trial court granted Raymond interim custody of the parties’ children. The court appointed a guardian ad litem to provide a custody evaluation. The guardian ad litem recommended awarding custody of the children to Raymond.

[¶ 5] A trial was held on February 10 and 11, 2000. On April 20, 2000, a judgment was entered awarding physical custody of the parties’ children to Rosemary and granting Raymond liberal visitation. In its findings of fact, the trial court found both parents had exhibited some of the worst parenting it had ever seen. The court further found that Rosemary and Raymond were unable to communicate regarding visitation. Specifically, it stated “Rosemary has refused to talk with Raymond and when [the parties] do speak Raymond does not stick to the topic of parenting.” On June 14, 2000, Raymond filed his Notice of Appeal.

II

[¶ 6] Raymond contends the trial court erred in awarding physical custody of the parties’ two children to Rosemary. In Reeves v. Chepulis, 1999 ND 63, ¶ 8, 591 N.W.2d 791 (citation omitted), our Court reiterated the standard of review of a trial court’s custody award under N.D.R.Civ.P., 52(a):

A trial court’s custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. A trial court’s findings of fact are presumptively correct. The complaining party bears the burden of demonstrating on appeal that a finding of fact is clearly erroneous. In reviewing findings of fact, we must view the evidence in the light most favorable to the findings. A choice between two permissible views of the evidence is not clearly erroneous. Simply because we might view the evidence differently does not entitle us to reverse the trial court. A finding of fact is clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.

[¶ 7] In determining an initial custody award, a trial court must consider the best interests and welfare of the child. Schumacher v. Schumacher, 1999 ND 149, ¶ 16, 598 N.W.2d 131. The trial court applied the best interests of the child factors under N.D.C.C. § 14-09-06.2(1) and made findings as to each factor. Several factors favored neither Raymond nor Rosemary. The court found both parties have love and affection for their children, there exist emotional bonds between the children and each parent, and both parents have the disposition to give their children love and affection. The court further found both parents are morally fit. The court finally stated the children expressed no preference as to which parent they live with.

[¶ 8] Raymond argues the trial court’s findings of fact are inconsistent because it concluded he was better able to continue the education of the children, but that Timothy’s school record with Rosemary was more favorable. The fact, however, that one factor favors one party and another factor favors the other party does not necessarily indicate the court’s findings of fact are inconsistent. These two factors do not consider identical interests. One factor considers the disposition to continue education and the other factor considers the actual school record of the children. The court found Raymond had a greater disposition to continue the children’s education because Raymond demonstrated a willingness to work with the school and Rosemary failed to take appropriate steps to get involved with the children’s education after Raymond was awarded interim custody. However, it found the parties’ oldest child, Timothy, had a poor school record while living with Raymond. Timothy’s grades declined during the interim custody order, and his principal at school described him as having above average ability with below average performance. Alternatively, when Timothy lived with Rosemary at the domestic abuse shelter he did well in school and enrolled in a school basketball program. After considering all of the evidence, we are not convinced the trial court made inconsistent findings.

[¶ 9] Raymond complains the trial court erroneously concluded Rosemary has a greater disposition to provide the children with medical care. He states this factor should favor neither party. The trial court found “the evidence indicates that Timothy would appear to be in need of and probably benefit from a psychological evaluation and appropriate follow up treatment.” Raymond argues the trial court was speculating as to Timothy’s possible psychological problems. Timothy’s performance at. school and the guardian ad litem’s testimony, however, suggest Timothy is indeed in need of psychological treatment. Rosemary indicated she was in favor of seeking psychological treatment for Timothy, and the court concluded Rosemary is more inclined to assist Timothy with any such psychological treatment. Raymond, however, believed it was not necessary for Timothy to seek counseling, but stated he would support psychological treatment if ordered to do so. The court concluded Raymond lacked concern regarding Timothy’s psychological problems and, therefore, correctly concluded Rosemary was better able to provide Timothy with any medical treatment. On this record, we cannot say the trial court erred in determining Rosemary had a greater disposition to provide the children with medical care.

[¶ 10] Raymond next contends the trial court erroneously determined domestic violence occurred during the marriage. Specifically, he states no credible evidence was introduced at trial that indicated he physically abused Rosemary. The evidence of domestic violence presented to the trial court did not trigger the rebuttable presumption under N.D.C.C. § 14-09-06.2(1)0'). Evidence of domestic violence which does not trigger the presumption, nonetheless, remains one of the best interest factors to be considered by the trial court. Schumacher, 1999 ND 149, ¶ 17, 598 N.W.2d 131; Reeves, 1999 ND 63, ¶ 15, 591 N.W.2d 791. In its findings of fact, the trial court recited two incidents of domestic violence committed by Raymond. Rosemary obtained two adult protection orders as a result of these incidents. See N.D.C.C. 14-09-06.2(1)© (stating “[a] court may consider, but is not bound by, a finding of domestic violence in another proceeding”). Moreover, Raymond wrote Rosemary a letter, whereby he apologized for his actions during one of the two incidents. In light of such evidence, we are convinced the court was presented with evidence from which it could find domestic violence.

[¶ 11] Raymond argues the court did not give adequate consideration to Rosemary’s bad behavior, including her going to Timothy’s school and refusing to leave after she was asked to do so by school personnel. The court made detailed findings regarding Rosemary’s behavior. It stated:

Rosemary has ... exhibited out of control behavior that does not set a good example for the children. This behavior includes frightening the guardian ad li-tem, frightening Dr. Cope’s secretary, frightening a social worker in Dunn County, and frightening a secretary at Hagen Junior High. Rosemary’s anger and loss of control are somewhat understandable because reportedly Raymond could “drive any normal person crazy.” But Rosemary has gone beyond what could be expected even given Raymond’s behavior. Rosemary was arrested and convicted of “criminal trespass.” Rosemary seemed to show a lack of respect for court orders which simply can[n]ot be condoned.
Rosemary seems to show a lack of concern about the importance of a father-son relationship between Raymond and the boys. Rosemary has vented her anger with Raymond in front of the boys and blamed Raymond in front of the boys when things go wrong.

[¶ 12] The court made findings regarding Raymond’s behavior as well. It stated:

Raymond has also exhibited behavior that does not support awarding the custody of the boys to him. This behavior includes a lack of concern for Rosemary and the importance of a mother-son relationship between Rosemary and the boys.
The prime example is the fiasco over [the wedding of Rosemary’s daughter] all because Raymond would not consent to an exchange of visitation. It appears to this Court that Raymond was more interested in controlling the situation than he was in doing what was best for the boys.

[¶ 13] The court minimized the effect of Rosemary’s bad behavior because it found she had begun to make positive changes in her life. She had obtained employment outside the home, was doing well in her job, and was involved with group and individual counseling. The court concluded Rosemary was more committed to making positive changes in her life than was Raymond. After having reviewed the entire record, we are not convinced the court did not adequately consider Rosemary’s behavior.

[¶ 14] Although Rosemary has made recent improvements in her life, we are nevertheless concerned about the evidence of her reluctance to promote visitation with the non-custodial parent, Raymond. We have recognized visitation between a child and a non-custodial parent is presumed to be in the best interests of the child and that it is not merely a privilege of the non-custodial parent, but a right of the child. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896. Rosemary has a duty not to turn her children away from Raymond by “poisoning the well.” Hendrickson v. Hendrickson, 1999 ND 37, ¶ 7, 590 N.W.2d 220. Rather, regardless of her perceived imperfections in the other parent, Rosemary should, in the best interests of the children, nurture the children’s relationship with the non-custodial parent, Raymond. Id. We have stated when persistent frustration of visitation works against the children’s best interest, a change in custody may be justified. Hendrickson, 2000 ND 1, ¶ 18, 603 N.W.2d 896.

[¶ 15] Raymond finally contends the trial court should have given greater consideration to the guardian ad litem’s opinion, which recommended awarding custody of the children to Raymond. Although it is appropriate to consider the opinion of the guardian ad litem in determining custody, it is within the trial court’s discretion to assign the weight given to such evidence. Kjelland v. Kjelland, 2000 ND 86, ¶ 13, 609 N.W.2d 100. The court is not required to, nor should it, regard a guardian ad litem’s testimony and recommendation as conclusive. Schmaltz v. Schmaltz, 1998 ND 212, ¶ 9, 586 N.W.2d 852 (citing Schneider v. Livingston, 543 N.W.2d 228, 233 (N.D.1996)). The guardian ad litem’s report indicated both parties have difficulty controlling their anger. She further indicated domestic abuse occurred during the marriage, but that she was not certain who committed what acts. The guardian ad litem’s explanation for her decision appears to rest on her belief that Raymond has “demonstrated a willingness to work with the school.” Apparently, the trial court concluded the guardian ad litem’s recommendation was unpersuasive. We are not convinced the court faded to adequately consider the opinion of the guardian ad litem simply because it did not follow her recommendation or that it erred in exercising its judgment.

[¶ 16] A choice between two permissible views of the evidence is not clearly erroneous, and simply because we might have viewed the evidence differently does not entitle us to reverse the trial court decision. Reeves, 1999 ND 63, ¶ 8, 591 N.W.2d 791. The court acknowledged it was faced with a difficult decision in determining which parent should be awarded custody. Upon our review of the record, we are not left with a definite and firm conviction the trial court made a mistake in its award of custody. Accordingly, the judgment is affirmed.

[¶ 17] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, DALE V. SANDSTROM, CAROL RONNING KAPSNER, JJ., concurs.


author: SANDSTROM, Justice.

text:
    2001 ND 11
    Sidney NORD, Joyce Nord, Lyder Nord, and Gloria M. Nord, Plaintiffs and Appellees, v. David HERRMAN and Richard Herrman, Defendants and Appellants, and Arlen Peterson, Intervenor and Appellant.
    No. 20000063.
    Supreme Court of North Dakota.
    Jan. 30, 2001.

      Todd A. Schwarz (on brief), Wheeler Wolf, Bismarck, ND, for plaintiffs and ap-pellees.
    J. Thomas Traynor, Jr. (on brief), Tray-nor, Rutten & Traynor, P.C., Devils Lake, ND, for defendants, intervenor, and appellants.
   SANDSTROM, Justice.

[¶ 1] David Herrman, Richard Herr-man, and Arlen Peterson appealed from a judgment in a quiet title action entered after our remand in Nord v. Herman, 1998 ND 91, 577 N.W.2d 782 (“Nord I ”). The trial court apportioned the property interests of Peterson, the Herrmans, and Sidney, Joyce, Lyder, and Gloria Nord to a portion of the 1992 shoreline of Devils Lake’s East Bay, and awarded the Nords $2500 for property damages. We conclude the trial court’s method of apportioning the property boundaries adequately satisfies the legal requirement of proportional allocation, and its award of damages is not clearly erroneous. We affirm.

I

[¶ 2] The factual background of this case is set forth in Nord I and need not be repeated here. In Nord I, the trial court was called upon to determine property boundaries below the meander line at a time when the waters of Devils Lake were receding. The court relied on a method to apportion new property lines between the parties that was based on this Court’s decision in North Shore, Inc. v. Wakefield, 530 N.W.2d 297 (N.D.1995). David Ho-vendick, the expert witness for the Herm-ans and Peterson, had advocated an alternative use of the “colonial” or “tide water” method of apportionment, and testified use of the North Shore method would, under the circumstances, deny the Hermans and Peterson any access to the lake. We held:

North Shore and Gardner [v. Green, 67 N.D. 268, 271 N.W. 775 (1937),] require allocation of the new shoreline in proportion to each owner’s share of the original shoreline. The method of extending section lines and government lot survey lines approved' in North Shore adequately met the legal requirement of proportional allocation. But to simply use the North Shore method to extend a quarter section line in a manner that deprives landowners of a proportional allocation in the new shoreline is not consistent with the North Shore and Gardner requirement of proportional allocation.
We do not hold the trial court was required to use Hovendick’s proposed colonial method for proportional allocation in this case, even though it appears to more closely achieve the proportional allocation of the shoreline requirement than does the method used by the trial court. We only hold the method used by the trial court here, which has deprived some owners of any proportional allocation of the shoreline, was erroneous as a matter of law. We remand for further proceedings to achieve proportional allocation of the new shoreline. Because the $2,500 damage award was based on this improper proportional allocation, the award must be reversed.

Nord I, 1998 ND 91, ¶¶ 23, 25, 577 N.W.2d 782.

[¶ 3] At another evidentiary hearing on remand, Hovendick again testified as an expert witness for the Hermans and Peterson, and Harley Swenson testified as an expert witness for the Nords. The trial court again rejected Hovendick’s proposal based on the colonial method, and chose the method advocated by Swenson. The court ruled:

By use of the survey notes from the original survey of the property, the south boundary of Lot Four (4) which is the south boundary of the Nord property shall be extended in a straight line due west to the water’s edge when the land was patented in 1883, which was an elevation of 1434.4 feet above median sea level.
After the above extension of the Lot Four (4) boundary to the west, the court next adopts the use of parallel lines running westward from the meander line to extend each property line to the 1434.4 feet level as illustrated on Plaintiffs Exhibit # 5. From the point where the parallel lines reach the 1883 shoreline, each property owner shall receive a proportional allocation of the 1992 shoreline as illustrated in Plaintiffs Exhibit # 5. Exhibit # 5 shall be incorporated into this Conclusion of Law.
The extension of government lot lines to the 1883 survey water’s edge with parallel boundary lines for each property owner to the 1883 water’s edge and then providing a proportional amount of 1992 shoreline based on the amount of 1883 shoreline each property owner receives meets the legal requirements of proportional allocation of the new shoreline as established by North Dakota case law.

The court also ruled $2500 was an appropriate amount to award the Nords for damage to their property.

[¶ 4] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal by the Herrmans and Peterson is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 5] The Herrmans and Peterson argue the trial court erred in adopting Swen-son’s method of apportioning the 1992 shoreline.

[¶ 6] Any division of accretions must be equitable and proportional so as to give each shore owner a fair share of the land to be divided and a due portion of the new shore line proportionate to the shore on the original line of the water. See Nord I, 1998 ND 91, ¶18, 577 N.W.2d 782; North Shore, 530 N.W.2d at 303. Any survey method that results in equitable allocation of the new shoreline in proportion to each owner’s share of the original shoreline will satisfy the legal requirement of proportional allocation. Nord I, at ¶¶ 23, 25.

[¶ 7] The weight and credibility given to an expert’s opinion is a question of fact subject to the clearly erroneous standard of N.D.R.Civ.P. 52(a). In re J.K., 1999 ND 182, ¶ 13, 599 N.W.2d 337. A trial court’s findings of fact are clearly erroneous if they are induced by an erroneous view of the law, there is no evidence supporting them, or, although there is some evidence supporting them, on the entire record we are left with a definite and firm conviction a mistake has been made. Tulintseff v. Jacobsen, 2000 ND 147, ¶ 16, 615 N.W.2d 129.

[¶ 8] In this case, much of the dispute between the expert witnesses centered on where to begin the process of equitable apportionment. Hovendick advocated beginning the process at the meander line, resulting in the Nords, the Herrmans, and Peterson each receiving a larger amount of 1992 lakefront footage. Swenson advocated beginning the process at the 1883 shoreline elevation of 1,434.4 feet, resulting in a smaller amount of 1992 lakefront footage for the parties. Swenson testified his proposal was consistent with the North Shore method, and Hovendick’s method inappropriately applied “accretion rules to land that is not accreted land.” Swenson also testified Hovendick’s proposal was unfair because the property lines would encroach upon property belonging to persons not parties in this proceeding, whereas his method “doesn’t encroach onto adjacent property owners.” Hovendick admitted the colonial method he proposed had never been used in North Dakota, but testified the colonial method would work all around Devils Lake and would “guarantee equitable apportionment to all property owners that abut up against the meander line as it was laid out.” Hovendick acknowledged use of the colonial method around the entire lake would require a redrawing of the boundary lines approved by this Court in North Shore.

[¶ 9] The trial court questioned Swen-son about the difference between his proposal and the one this Court rejected in Nord I:

THE COURT: So from your opinion and your comprehension, that is the error this court made in it[ ]s first determination, it didn’t extend the line out to the 1434.4 elevation but only to the 1426.
THE WITNESS: Well, it’s my opinion that it should be at 1434.4 elevation and I think I’ve testified—
THE COURT: — I understand why, you’ve said that, but I did not use that. I used the standard of 1426 which was the lakebed elevation of the ordinary high watermark.
THE WITNESS: It’s my opinion that everything below the elevation at the time the land was patented which was in 1883 which was an elevation of 34.4, the land below that elevation is subject to the laws and rules of accretion. And that would mean proportioning new shore line and proportioning the owner, based on the ownership, at the elevation of 1434.4. It’s all accreted property below that elevation. And you were right in extending the land lines to that point. Where I guess I would differ from your decision is that at that point I would start applying the laws of accretion.

[¶ 10] Swenson testified his method and the colonial method would “give you very similar results in this particular case” and would “do an equitable job of dividing the accretion.... ” Hovendick testified Swenson’s method gave the Nords 237 feet of 1992 lakefront footage and Hovendick’s method would give the Nords 341 feet. Hovendick also testified Swenson’s method gave the Hermans and Peterson 67 feet of 1992 lakefront footage, while Hoven-dick’s method would give them “over a hundred feet.”

[¶ 11] In rejecting Hovendick’s proposal, the trial court noted the meander line is not the legal property boundary as established by survey treatises and case law, but is merely a means to determine the size of a body of water and to describe a particular tract of land. See Nord I, 1998 ND 91, ¶ 16, 577 N.W.2d 782; North Shore, 530 N.W.2d at 301. The court also noted the 1883 survey notes were available and “must become a part of the determinable water’s edge and land boundary of this disputed property.” The court reasoned:

The Court declines to use the Hoven-dick proposal because it ignores the survey notes, and our case law. It does not recognize the first deed to property as superior, the natural extension of government lot lines nor the riparian rights granted to the upland owner as established in earlier decisions. While the Hovendick proposal seems a simple fix to the rise and fall of the lake level which plagues this property, simple solutions are not the best solution when it is contrary to our established law. If the meander line is to become a legal boundary for Devils Lake shore owners, it must be established by other than this trial court.

[¶ 12] The methods advanced by both of the expert witnesses grant the parties proportional allocation of the 1992 shoreline. When a trial court is faced with conflicting opinions by expert witnesses for the parties, and the court could have relied on either party’s expert witness, the court’s choice between the two permissible views of the weight of the evidence is not clearly erroneous. Johnson v. Hamill, 392 N.W.2d 55, 59 (N.D.1986). On this record, we cannot say the trial court’s adoption of Swenson’s method of apportionment is clearly erroneous, and we conclude the plan adopted by the court adequately satisfies the legal requirement of proportional allocation.

[¶ 13] The Hermans and Peterson argue adoption of Swenson’s method results in a judgment that is not final, clear, or definite because his method applies only to the water level in 1992 when this action was commenced. Because Devils Lake rises and falls, they argue property lines would have to be redrawn periodically, resulting in further litigation if the parties failed to reach an agreement. However, changes in property boundaries caused by rising and falling waters is a natural consequence of riparian land ownership. In North Shore, Inc. v. Wakefield, 542 N.W.2d 725, 729 (N.D.1996) (internal citations omitted), this Court said “[riparian landowners are by necessity subject to losses and gains caused by the water; under well-established principles of law a riparian landowner ‘ “is without remedy for his loss in this way [and] cannot be held accountable for his gain.” ’ ” It is the nature of riparian land ownership, not the trial court’s use of Swenson’s method of apportionment, which makes the judgment appear to be non-final or indefinite.

[¶ 14] In Nord I, at ¶ 24, we noted “a proper determination of the dispute between these three parties may require joinder of most, if not all owners around the lake.” Contrary to our caveat, the parties did not believe a class action was necessary, and, contrary to our caveat, the trial court said a class action would not be “practical.” Consequently, the trial court’s judgment is limited to affecting only the property interests of the Nords, the Herrmans, and Peterson among themselves. See Woodland v. Woodland, 147 N.W.2d 590, 602 (N.D.1966). The judgment is not binding on other property owners in the area who were not made parties to this action and who might have a claim to the subject property. Id.

Ill

[¶ 15] The Herrmans and Peterson argue the trial court erred in awarding the Nords damages for injury to the Nord’s property. The Nords requested almost $37,000 in damages, but the trial court awarded them only $2500 “for destruction of surface structures.”

[¶ 16] In an appeal challenging a trial court’s award of damages in a bench trial, the appropriate standard of review is whether the trial court’s findings of fact on damages are clearly erroneous. See Roise v. Kurtz, 1998 ND 228, ¶ 6, 587 N.W.2d 573. During the infancy of this boundary dispute, David Herrman admitted cutting down trees, which had formed a property boundary, and he and Peterson admitted taking down a boundary fence constructed by the Nords. The trial court also found Herrman and Peterson pushed large rocks from the front of their lots over to the Nords’ property. Under the method the trial court used to apportion the property, the actions of Herrman and Peterson damaged the Nords’ property.

[¶ 17] We conclude the trial court’s award of $2500 to the Nords for property damage is not clearly erroneous.

IV

[¶ 18] The judgment is affirmed.

[¶ 19] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ„ concur.

      . Plaintiff’s Exhibit # 5 appears in the Appendix.


author: YANDE WALLE, Chief Justice. SANDSTROM, Justice, NEUMANN, Justice,

text:
    2001 ND 4
    Richard Henry MARSCHNER, Plaintiff and Appellee, v. Carol MARSCHNER, Defendant and Appellant.
    No. 20000172.
    Supreme Court of North Dakota.
    Jan. 30, 2001.

      Michael S. Mclntee, Mclntee Law Firm, Towner, ND, for plaintiff and appellee.
    Kelly Ann Dillon, Minot, ND, for defendant and appellant.
   YANDE WALLE, Chief Justice.

[¶ 1] Following a thirty-seven year marriage, Richard and Carol Marschner were divorced. After the divorce trial, Carol Marschner moved for a new trial, alleging, among other things, that the district court erred in including her inheritance from her mother in the marital estate and in not awarding spousal support. The district court denied the motion, and Carol Marschner appealed. We reverse and remand for further proceedings.

I

[¶ 2] Carol Marschner was married to Richard Marschner in 1962. At the time of trial she was 58 years old. Her married life was spent on the farm where she fulfilled the usual duties of a wife and mother and, like many women married to men who farm, assisted in the farming operation in various ways. Carol Marschner has some health problems, but the primary obstacles to meaningful employment are limited skills needed in the job market.

II

[¶ 3] Because Carol Marschner did not receive her inheritance until after she was separated from her husband, she argues her inheritance is separate property and should not be included in the marital estate. An asset accumulated while spouses are still married is includable in the marital estate even though the spouses are separated. Keig v. Keig, 270 N.W.2d 558, 560 (N.D.1978). However, the source of the property is a factor for the court to consider in making an equitable distribution. Linrud v. Linrud, 552 N.W.2d 342, 344 (N.D.1996); van Oosting v. van Oosting, 521 N.W.2d 93, 96 (N.D.1994).

[¶ 4] Equitable distribution of marital prbperty is based upon the facts and circumstances of each case. Zuger v. Zuger, 1997 ND 97, ¶ 6, 563 N.W.2d 804 (citing N.D.C.C. § 14-05-24; Volson v. Volson, 542 N.W.2d 754, 756 (N.D.1996)). The findings of fact of the trial court “are presumptively correct, and the complaining party bears the burden of demonstrating on appeal that a finding of fact is clearly erroneous.” Id. The district court discussed each of the Ruff Fischer guidelines in determining the value of and division of the marital property. Carol Mar-schner does not argue the distribution was inequitable, but rather argues the district court erred in including the inheritance in the marital estate.

[¶ 5] North Dakota law requires inclusion of inheritance in the marital estate even if the parties have separated. Keig, 270 N.W.2d at 560; Linrud, 552 N.W.2d at 344; van Oosting, 521 N.W.2d at 96. We conclude the district court correctly included the inheritance as part of the marital estate.

Ill

[¶ 6] Carol Marschner argues the district court erred in not awarding her spousal support. There are two types of spousal support. Permanent spousal support, to provide traditional maintenance, is appropriate for a spouse who is incapable of rehabilitation. Heley v. Heley, 506 N.W.2d 715 (N.D.1993). Rehabilitative spousal support is awarded to provide a disadvantaged spouse time and resources to acquire education, training, work skills or experience which will enable the spouse to become self-supporting. Id. An award of spousal support must be made in light of the needs of the disadvantaged spouse and of the supporting spouse’s needs and ability to pay. Young v. Young, 1998 ND 88, ¶ 7, 578 N.W.2d 111 (citing Mahoney v. Mahoney, 1997 ND 149, ¶28, 567 N.W.2d 206).

[¶ 7] Spousal support determinations are findings of fact and will not be reversed on appeal unless” they are clearly erroneous. Young v. Young, 1998 ND 83, ¶ 7, 578 N.W.2d 111 (citation omitted). A finding of fact is clearly erroneous if it has no support in the evidence or, if there is some evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Miller Enterprises v. Dog N’ Cat Pet Centers, 447 N.W.2d 639, 644 (N.D.1989). A finding of fact is also clearly erroneous if it was induced by an erroneous view of the law. Manz v. Bohara, 367 N.W.2d 743, 746 (N.D.1985).

[¶ 8] The district court specifically enumerated each factor under the Ruff Fischer guidelines. The district court sought to preserve the family farm by awarding it to Richard Marschner. In doing so, the court found a “substantial disparity” existed in the distribution and therefore ordered Richard Marschner to provide Carol Marschner cash in the amount of $50,000 to be paid either in a lump sum or over ten years with interest. The district court specifically found neither party was disadvantaged, and although Richard Mar-schner may have had “an income-earning advantage,” the cash payoff and interest awarded to Carol Marschner resulted in no disadvantage to either party.

[¶ 9] The Ruff Fischer guidelines to consider 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, them 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.

Riehl v. Riehl, 1999 ND 107, ¶ 8, 595 N.W.2d 10. The district court concluded the only factor favoring Carol Marschner was Richard Marschner’s income-earning ability. The district court found, once Carol Marschner received her cash inheritance and once payments began on the liquid cash settlement, there would be no disadvantage to either party.

A

[¶ 10] “Upon granting a divorce, the trial court may compel either of the parties to make such suitable allowances to the other for support as the court may deem just.” Schiff v. Schiff, 2000 ND 113, ¶ 42, 611 N.W.2d 191; N.D.C.C. § 14-05-24. “The determination whether to award spousal support must take into consideration the needs of the disadvantaged spouse and the supporting spouse’s needs and ability to pay.” Moilan v. Moilan, 1999 ND 103, ¶ 11, 598 N.W.2d 81, citing Kautzman v. Kautzman, 1998 ND 192, ¶ 19, 585 N.W.2d 561. A spouse is disadvantaged who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity. Wahlberg v. Wahlberg, 479 N.W.2d 143, 145 (N.D.1992). A valid consideration in awarding spousal support is balancing the burden created by divorce. Id. The record reflects both Carol Marschner and Richard Marschner devoted a large portion of their lives to the Marschner family and to the family’s farm. However, the district court noted the farm may no longer produce as much income. The district court further found the liquid settlement would be a “definite financial burden” on Richard Marschner, and because of this burden, Richard Marschner does not have “a much better earning-capacity level” than Carol Marschner.

[¶ 11] The district court concluded Carol Marschner acquired bookkeeping and typing skills during the marriage, and those skills would help her obtain employment. Further, the court found, even though Richard Marschner presently has a greater earning ability, the settlement payment and liquid nature of Carol Mar-schner’s distribution resulted in no advantage to either party. Further, the district court suggested the depressed farm economy may mitigate Richard Marschner’s presently greater income-earning ability.

[¶ 12] The trial court found Carol Mar-schner was not a disadvantaged spouse because once Carol Marschner received her cash inheritance, and once payments began on the liquid cash settlement, there would be no disadvantage to either party. But that finding conflicts with the record which clearly reflects both Carol Mar-schner and Richard Marschner devoted a large portion of their lives to the family’s farm. Carol Marschner will no longer be able to work the family farm in order to receive a return from that investment. The trial court found Carol Marschner has been, for the majority of the marriage, a homemaker, although she had accumulated some work skills prior to the marriage and she did the bookkeeping for the farming operation. It is apparent that as a result of Carol Marschner’s responsibilities as a homemaker and helper to Richard Mar-schner in the family operation she is a disadvantaged spouse who has “ ‘foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity.’ ” Riehl v. Riehl, 1999 ND 107, ¶ 9, 595 N.W.2d 10, quoting Van Klootwyk v.. Van Klootwyk, 1997 ND 88, 563 N.W.2d 377. When the marriage was dissolved, Richard Marschner retained the asset, the farm, including the home, he operated with Carol Marschner during his 37-year marriage. Carol Marschner was left with little or no experience and skills to find some other income earning vocation and, in addition, finding a new place to live and forge a new life. The burdens of the divorce are not balanced when there is no provision for spousal support for Carol Marschner. Because we are left -with a definite and firm conviction that a mistake has been made, we conclude a finding that Carol Mar-schner was not disadvantaged by the divorce is clearly erroneous.

B

[¶ 13] Relevant to a spousal support determination is the distribution of marital property, the liquid nature of the property, and the income-producing nature of property. Wetzel v. Wetzel, 1999 ND 29, ¶ 20, 589 N.W.2d 889 (citing Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D.1994)). “Questions of property division and spousal support cannot be considered separately or in a vacuum, but must be examined and dealt with together, especially when there is a large difference in earning power between the spouses.” Fox v. Fox, 1999 ND 68, ¶ 22, 592 N.W.2d 541 (citing Schmaltz v. Schmaltz, 1998 ND 212, ¶ 17, 586 N.W.2d 852).

[¶ 14] The district court awarded each party a virtually equal share of the family assets, either in cash or in property. The farm, an income-producing asset, was awarded to Richard Marschner. The district court specifically found “the family farm has not been very profitable” and noted the farm economy is depressed.

[¶ 15] Richard Marschner testified his income from selling milk had dropped by a third, he was receiving over two dollars less per bushel for his grain, and he had been able to plant only one-third of his crop due to heavy moisture. The court also found the liquid nature of Carol Mar-schner’s distribution and cash settlement would burden Richard Marschner and would essentially equalize any advantage he had over her. Our cases discussing equitable distribution encourage trial courts to consider factors such as the income-producing nature or the liquid nature of an asset. Wetzel, 1999 ND 29, ¶ 20, 589 N.W.2d 889 (citing Wiege, 518 N.W.2d at 711).

[¶ 16] We have held that a disadvantaged spouse is not required to deplete her property distribution in order to live. Fox v. Fox, 1999 ND 68, 592 N.W.2d 541 citing Bakes v. Bakes, 532 N.W.2d 666, 669 (N.D.1995). We have reversed a decision of the trial court that required a spouse to use her property distribution payments to rehabilitate herself, while permitting the other spouse to retain income-earning property and use the income from that property to make the cash property distribution payments. Sateren v. Sateren, 488 N.W.2d 681 (N.D.1992) (noting the marital assets totaled $76,960 less debts of $20,449 but ordering the trial court to consider the payment of spousal support). See also Wiege v. Wiege, 518 N.W.2d 708 (N.D.1994); Heley v. Heley, 506 N.W.2d 715 (N.D.1993).

[¶ 17] The marital estate here, as in Sateren, is small. The trial court was understandably concerned that requiring Richard Marschner to pay spousal support, in addition to the cash payment of $50,000 to be paid as property distribution, was a financial burden. The district court sought to preserve the family farm by awarding it to Richard Marschner. We have numerous times recognized the importance of preserving the viability of a business operation like a family farm. See, e.g., Gibbon v. Gibbon, 1997 ND 210, 569 N.W.2d 707, and cases cited therein. However, those decisions have also recognized this laudable purpose is to be achieved only if it is possible to do so without detriment to the other party. See, e .g., Linrud v. Linrud, 552 N.W.2d 342, 346 (N.D.1996) (noting that preserving the viability of business operations, such as a farm, “does not call for a windfall for one spouse.”).

[¶ 18] Preserving the family farm is not to be done at all costs nor should it engulf all other factors. Rather, we have said its purpose is to avoid “the potential for economic hardship” if the farm is divided or sold. Gibbon, 1997 ND 210, ¶ 7, 569 N.W.2d 707. Here, the preservation of the farm appears to increase rather than decrease the potential for economic harm. Not only is Carol Marschner denied spousal support, her share of the marital estate, payable in cash, is, at Richard’s option, payable over a period of ten years.

[¶ 19] Although this distribution may not be characterized as a “windfall” to Richard Marschner, the effect of the property distribution is to require Carol Mar-schner to forego spousal support because she is to receive her property distribution in a cash payment. As a result, she will be required to deplete her property distribution for living expenses. Richard Mar-schner will retain the farm. The farm may be encumbered after the payments are made to Carol Marschner but Richard Marschner will retain an income-producing asset while Carol Marschner will have depleted her share of the property distribution to find a residence and otherwise subsist. Property distribution and spousal support are overlapping issues and are to be considered together. Sateren. The property division, viewed in a vacuum, may appear equitable, but when the denial of spousal support is included in the analysis, it is not equitable.

[¶ 20] Although our decisions recognize liquidation of an ongoing farming or business operation is ordinarily a last resort, e.g. Gibbon, this may be such a case. This may be the situation in which it is not possible to preserve the family farm. If it is not an economically viable enterprise, it should be sold and the proceeds divided between the parties. See, e.g., Schoenwald v. Schoenwald, 1999 ND 93, 593 N.W.2d 350. If the operation is viable, it should be possible to award Carol Mar-schner spousal support as well as her share of the marital estate.

[¶ 21] The trial court recognized Richard Marschner has greater earning ability but suggested the depressed farm economy may reduce his greater income-earning ability. It may. It may not. A depressed farm economy, although a too common occurrence, may improve in future years. If immediate spousal support cannot be paid in this case, the trial court should have reserved the issue. Then, when Richard Marschner has finished paying Carol Mar-schner her property distribution and has the total income from the farm for his own use and she has no income because she used her share of the property distribution to survive, the possibility of an award of spousal support may be considered, van Oosting v. van Oosting, 521 N.W.2d 93, 101 (N.D.1994); Becker v. Becker, 262 N.W.2d 478 (N.D.1978) (holding court does not have continuing jurisdiction to award spousal support where spousal support was not originally ordered and not reserved).

[¶ 22] We have affirmed the finding that the property Carol Marschner inherited should be included for purposes of property distribution. However, the net effect is to award Carol Marschner $50,000, payable over ten years at Richard Marschner’s option, out of the estate the parties accumulated during 38 years of marriage. This result should be a factor favoring Carol Marschner in a spousal support award.

[¶ 23] We hold the trial court’s finding that the preservation of the farm was the overreaching goal of the divorce proceeding, thereby denying any form of spousal support to Carol Marschner, was induced by an erroneous view of the law and therefore was clearly erroneous under N.D.R.Civ.P. 52(a). We remand to the trial court to further consider the matter of spousal support. The trial court may further consider an award of spousal support under the same or similar property distribution, it may order the sale of the farm and divide the proceeds, or it may consider some form of delayed spousal support. Although we believe the property distribution was an equitable distribution as ordered by the trial court, because issues of property division .and spousal support are intertwined, Fox v. Fox, 1999 ND 68, 592 N.W.2d 541, the trial court may, if necessary, revisit the property distribution on remand.

[IT 24] We reverse the judgment and remand for further proceedings consistent with this opinion.

[¶ 25] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, JJ„ concur.

SANDSTROM, Justice,

dissenting.

[¶ 26] On appeal, the question is not whether the district court could have awarded spousal support to Carol Mar-schner, but' whether the district court clearly erred by not awarding support. Van Klootwyk v. Van Klootwyk, 1997 ND 88, ¶ 32, 563 N.W.2d 377 (Sandstrom, J., dissenting). Because the district court’s findings of no disadvantage and no need for spousal support are supported by the record, I would affirm. Because the majority substitutes its judgment for that of the district court, I respectfully dissent.

A

[¶ 27] Our cases have uniformly held a “spouse must be disadvantaged as a result of the divorce for rehabilitation or maintenance to be appropriate.” Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D.1994) (citing Weir v. Weir, 374 N.W.2d 858, 862 (N.D.1985)). The majority, at ¶ 8, recognizes the district court found neither party was disadvantaged by the divorce. At ¶ 12, however, the majority says the court’s finding of no disadvantage is clearly erroneous because:

that finding conflicts with the record which clearly reflects both Carol Mar-schner and Richard Marschner devoted a large portion of their lives to the family’s farm. Carol Marschner will no longer be able to work the family farm in order to receive a return from that investment.... It is apparent that as a result of Carol Marschner’s responsibilities as a homemaker and helper to Richard Marschner in the family operation she is a disadvantaged spouse who has “ ‘forgone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity.’ ”

(Emphasis added). The majority substitutes the phrase “[i]t is apparent” for evidence; it substitutes stereotypes for facts in the record.

[¶ 28] The majority ignores Carol Mar-schner’s award of nearly $84,000 in cash plus $50,000 with interest over the next ten years. The evidence does not support the conclusion that Carol Marschner has forgone any opportunity or lost any advantage as a result of her marriage. Further, the evidence does not establish Richard Marschner has an increased earning capacity. Rather, he has an asset that may or may not produce income, while Carol Marschner has cash.

[¶29] Although Carol Marschner can no longer derive income from the farm, it is illogical to conclude that the $134,000 she will receive cannot generate income. The majority’s conclusion presupposes that Richard Marschner has an increased earning capacity, but the record does not support this supposition. At ¶ 15, the majority recognizes Richard Marschner may be unable to earn a living. At ¶ 13, the majority also recognizes that the liquid nature and income-producing nature of property are relevant to a spousal support determination. I agree with the district court, the farm may be an income-producing asset. I also agree Carol Marschner’s cash settlement may be an income-producing asset. But I do not believe the majority should embrace one finding while ignoring the other.

[¶ 30] “We have held, if our Court can understand the factual basis upon which the trial court reached its conclusions from its findings of fact, we will not remand.” Young v. Young, 1998 ND 83, ¶ 14, 578 N.W.2d 111. “One need only examine the legal references listing our cases to be aware we have repeatedly said the trial court’s findings must be adequate to afford a clear understanding of the trial court’s decision but if the Supreme Court understands from the findings the factual basis for the trial court’s determination, the findings are adequately specific.” Id. at 1Í25 (VandeWalle, C.J., dissenting) (citations omitted). The district court’s findings were “adequate,” although they “might have been clearer.” Id. at ¶ 26.

[¶ 31] The conclusion Carol Marschner was disadvantaged seems logical if one presupposes Richard Marschner has a greater earning ability. But the nearly equal property division and the findings of the district court adequately demonstrate that both parties have a nearly equal earning ability, “so neither is unfairly disadvantaged by the divorce.” Id. at ¶ 30.

B

[¶ 32] Although the district court might have better articulated both parties’ needs and Richard Marschner’s ability to pay, the record demonstrates the district court considered these factors in reaching its conclusion. Even if Carol Marschner was disadvantaged, the majority does not address the needs of both parties and Richard Marschner’s ability to pay. See Moilan v. Moilan, 1999 ND 103, ¶ 11, 598 N.W.2d 81 (citing Kautzman v. Kautzman, 1998 ND 192, ¶ 19, 585 N.W.2d 561) (indicating trial courts must consider the needs of both parties and the ability of the supporting spouse to pay support). Needs and ability to pay are analyzed using the Ruff Fischer guidelines — an analysis conspicuously absent from the majority opinion. See id. at ¶ 10 (to determine spousal support, district courts must consider the Ruff Fischer guidelines).

[¶ 33] Discussing the physical condition of the parties, the district court stated, “Both parties appeared to be fit for their respective ages; the Defendant has recovered from her aneurysm, although she complains of some arthritis and carpal tunnel syndrome; however, these do not warrant any special consideration.” The district court further stated, “Neither party is claiming any special circumstance or needs other than what has been addressed in different areas of this opinion.”

[¶ 34] At trial, when asked whether she had lasting effects from her aneurysm, Carol Marschner replied, “I sure don’t think so.” She proceeded to explain she feels even better without “all the pressures that was [sic] put on me out there at the farm.” She did, however, testify she suffers from asthma, rheumatoid arthritis, blood pressure ailments, and a heart condition. The district court discounted these claimed ailments, stating they “do not warrant any special consideration.”

[¶ 35] The district court concluded Carol Marschner acquired bookkeeping and typing skills during the marriage, which would help her obtain employment. Carol Marschner testified she has sold seed grain and has been employed as a bus driver.

[¶ 36] Richard Marschner testified regarding his diminished income and corresponding ability to pay support. He testified his income from selling milk had dropped by a third, he was receiving over two dollars less per bushel for his grain, and he had been able to plant only one-third of his crop due to heavy moisture. The district court specifically cited the depressed farm economy and lack of profit on the family farm in equitably distributing the marital property.

[¶ 37] The record demonstrates the district court properly weighed the parties’ needs and Richard Marschner’s ability to pay. Although Carol Marschner was unemployed at the time of trial and may have had to temporarily and minimally deplete her property settlement in order to live, the district court’s findings establish Richard Marschner’s earning advantage, if any, would be ephemeral. It is logical to also presume Richard Marschner will have to deplete his property settlement. Both parties are reaching their advanced years, and, unfortunately, because of their limited marital assets, both will likely have to work after the divorce.

[¶ 38] Our equitable distribution cases encourage trial courts to consider factors such as the income-producing nature or the liquid nature of an asset. Wetzel v. Wetzel, 1999 ND 29, ¶ 20, 589 N.W.2d 889 (citing Wiege, 518 N.W.2d at 711). Here, in light of the district court’s thorough review of the Ruff Fischer guidelines, the lack of evidence establishing Carol Mar-schner’s needs, and the evidence demonstrating Richard Marschner’s needs and ability to pay, I am not left with a firm and abiding conviction a mistake has been made.

C

[¶ 39] Whether the district court could have awarded spousal support to Carol Marschner is not at issue. Our query is whether the district court clearly erred by not awarding spousal support. Because the district court’s findings are supported by the record, I would affirm. Because the majority has substituted its judgment for that of the district court, I respectfully dissent.

[¶ 40] DALE V. SANDSTROM

NEUMANN, Justice,

dissenting.

[¶ 41] I, too, respectfully dissent. I believe the majority has retried the case, based on the evidence and on.the facts in the record.

[¶42] As has been pointed out, the parties’ farming operation faces a very uncertain future. The trial court has tried to spread the risk of that uncertainty fairly and equitably. While I might have found facts somewhat differently, and particularly might have reserved the possibility of a future award of spousal support, what I might have preferred to do as a trial judge is not our standard of review. Confronted as it was with so much uncertainty as to the parties’ economic futures, I cannot say the result reached by the trial court was clearly erroneous. I would affirm.

[¶ 43] WILLLIAM A. NEUMANN