Estate of Albrecht

Filed 1/29/20 by Clerk of Supreme Court

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2020 ND 27

In the Matter of the Estate of Sharleen Albrecht, Deceased

Mark Albrecht, Personal Representative, Petitioner and Appellee
v.
Alan Albrecht, Respondent and Appellee
and
Matthew Albrecht, Respondent
and
Glenvin Albrecht, Claimant and Appellant

No. 20190180

Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Troy J. LeFevre, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Kasey D. McNary (argued), Fargo, North Dakota, for petitioner and appellee.

Alan J. Albrecht (argued), self-represented, Blaine, Minnesota, respondent and
appellee.

Sara M. Monson (argued), Timothy M. O’Keeffe (on brief), and Stephen P.
Welle (appeared), Fargo, North Dakota, for claimant and appellant.
 Estate of Albrecht
No. 20190180

Tufte, Justice.

[¶1] Glenvin Albrecht (“Glen Albrecht”) appeals from a judgment entered in
favor of the Estate of Sharleen Albrecht (“Estate”) regarding certain assets in
which he had an ownership interest. Glen Albrecht argues the district court
erred by finding Sharleen Albrecht also had an interest in the assets and the
court abused its discretion by allowing personal representative’s and attorney’s
fees. We affirm.

I

[¶2] In February 2010, Glen Albrecht sued Sharleen Albrecht for divorce after
nearly 50 years of marriage. Sharleen Albrecht died on July 29, 2013, before
a final divorce judgment was entered. The district court entered a final divorce
judgment after her death, and this Court reversed the judgment, holding
Sharleen Albrecht’s death abated the divorce action. Albrecht v. Albrecht, 2014
ND 221, 856 N.W.2d 755.

[¶3] Sharleen Albrecht had a will, and Sharleen and Glen Albrecht’s son,
Mark Albrecht, was appointed personal representative of the Estate. Glen
Albrecht brought claims against the Estate, which the district court denied.
This Court affirmed the district court’s decision on appeal. In re Estate of
Albrecht, 2018 ND 67, 908 N.W.2d 135.

[¶4] In February 2017, the Estate petitioned for the return, partition, and
sale of estate assets. The Estate alleged Sharleen Albrecht owned a one-half
interest in various farm machinery, equipment, and vehicles, which were in
Glen Albrecht’s control. The Estate alleged a partition and sale of the assets
was necessary to satisfy estate expenses. Glen Albrecht objected to the
petition, arguing Sharleen Albrecht did not have an ownership interest in the
assets.

1
[¶5] Glen Albrecht and Alan Albrecht, Glen and Sharleen Albrecht’s son,
petitioned for the court to review the reasonableness of the Estate’s attorney’s
fees and the personal representative’s fees.

[¶6] On December 13, 2018, a court trial was held. The Estate argued it was
entitled to a one-half interest in the farm equipment, machinery, vehicles, and
grain held by Sharleen and Glen Albrecht as tenants in common at the time of
her death; and it was entitled to half of the proceeds from the sale of the 2012
crops and half of the funds in the farm checking account on the date of
her death. The Estate also requested the court approve the attorney’s fees the
Estate incurred during prior litigation and the personal representative’s fees.
Glen Albrecht argued the Estate was not entitled to the requested return,
partition, and sale of the assets because Sharleen Albrecht did not have an
ownership interest in them at the time of her death. He also argued the court
should disallow the request for attorney’s fees because the fees were not
incurred to the benefit of the Estate and the personal representative’s fees were
unreasonable. Both parties filed proposed findings of fact, conclusions of law,
and orders for judgment.

[¶7] The district court granted the Estate’s petition, ordering the Estate was
entitled to recover from Glen Albrecht $167,780.13 for the value of Sharleen
Albrecht’s one-half interest in the 2012 crops; $142,108.50 for Sharleen
Albrecht’s one-half interest in the farm equipment, machinery, and vehicles;
and $20,538.54 for Sharleen Albrecht’s one-half interest in the farm checking
account. The court ordered the Estate was allowed to claim attorney’s fees and
other expenses of administration and the personal representative was allowed
a total fee of $25,480 for his services. Judgment was entered.

II

[¶8] Glen Albrecht argues the district court erred by adopting the Estate’s
proposed findings of fact and conclusions of law verbatim.

[¶9] Rule 7.1, N.D.R.Ct., authorizes the district court to assign the
preparation of proposed findings of fact and conclusions of law to one or more
parties. Although we have expressed disapproval of a district court’s wholesale

2
adoption of one party’s proposed findings and conclusions, the findings become
the court’s findings when the court signs the findings. Dale Expl., LLC v.
Hiepler, 2018 ND 271, ¶ 8, 920 N.W.2d 750. The findings will be upheld if they
adequately explain the basis for the court’s decision, unless they are clearly
erroneous. Id. We will not reverse a district court’s decision solely because the
court adopts counsel’s proposed findings. In re Guardianship of P.T., 2014 ND
223, ¶ 8, 857 N.W.2d 367.

[¶10] We conclude the district court did not err by adopting the proposed
findings of fact and conclusions of law.

III

[¶11] Glen Albrecht argues the district court erred by concluding that he
owned various equipment, vehicles, and machinery jointly with Sharleen
Albrecht, that the Estate was entitled to half of the proceeds from the 2012
crops, and that the Estate was entitled to funds from his checking account.

[¶12] The district court exercises wide discretion in partition actions to “do
equity” and make a fair and just division of the property or proceeds. In re
Estate of Loomer, 2010 ND 93, ¶ 17, 782 N.W.2d 648. The district court’s
findings in a partition action will not be reversed on appeal unless they are
clearly erroneous. Bruce J. Wenzel Estate v. Wenzel, 2008 ND 68, ¶ 5, 747
N.W.2d 103. A finding of fact is clearly erroneous if it is induced by an
erroneous view of the law, there is no evidence to support it, or this Court is
convinced, on the basis of the entire record, that a mistake has been made. Id.
Questions of law are fully reviewable. Id.

A

[¶13] The Estate alleged Sharleen Albrecht owned a one-half interest in
various equipment, machinery, and vehicles related to the farming operation,
which were in Glen Albrecht’s possession and control. The Estate sought
reimbursement for the value of Sharleen Albrecht’s interest in any of the assets
Glen Albrecht sold.

3
[¶14] The district court found Glen and Sharleen Albrecht ran a farming
operation together and the farm checking account was in both of their names.
The court found the farming operation was not a corporation, partnership, or
limited liability company, and Glen Albrecht testified that he and Sharleen
Albrecht owned the machinery and vehicles. The court found the machinery
and vehicles were owned by both Glen Albrecht and Sharleen Albrecht,
explaining:

Glen’s prior testimony established that he and Sharleen
acquired property, machinery, and real estate during their
marriage. They did not have any debts. Glen testified there was
no farming entity, such as a corporation, partnership, or a limited
liability company. The farm machinery was owned by both Glen
and Sharleen. The vehicles were also part of the farm operation.
Because there was no separate farming entity, and there was no
evidence of a joint tenancy interest, Sharleen had a one-half tenant
in common interest in the farm assets, including the machinery,
equipment, farm checking account, 2012 crop, and vehicles, at the
time of her death on July 29, 2013.

The court concluded the Estate was entitled to one-half of the value or proceeds
from the sale of the farm equipment, machinery, and vehicles. The court made
findings about the value of each item as of the date of Sharleen Albrecht’s
death. The court found the total value of the equipment, machinery, and
vehicles was $284,217, and ordered the Estate was entitled to recover
$142,108.50 from Glen Albrecht for Sharleen Albrecht’s interest in the assets.

[¶15] Glen Albrecht argues the district court erred as a matter of law by
concluding he and Sharleen Albrecht jointly own the machinery, vehicles, and
equipment. He contends the court incorrectly determined the property was
jointly owned solely because Glen and Sharleen Albrecht were married. He
claims the evidence established he is the sole owner of the equipment,
machinery, and vehicles.

[¶16] Married people may own property separately. See N.D.C.C. § 14-07-04.
A married couple may also own personal property as joint tenants or tenants
in common. “Every interest created in favor of several persons in their own

4
right is an interest in common, unless acquired by them in partnership for
partnership purposes, or unless declared in its creation to be a joint tenancy.”
N.D.C.C. § 47-02-08.

[¶17] The district court did not rely solely on the parties’ marital status in
deciding ownership of the property. Mark Albrecht testified his parents
decided together whether to purchase equipment for the farm, and the funds
used to purchase the equipment and vehicles came from Sharleen and Glen
Albrecht’s jointly owned farm bank account. Mark Albrecht testified his
parents ran the farming operation together. Glen Albrecht testified during the
trial that Sharleen Albrecht was employed outside the farm operation but she
also helped with some of the farming, the farm bank account was in both their
names, and the bank account was used to pay the farming expenses. During a
March 2016 deposition, Glen Albrecht was asked who owned the equipment
and vehicles and he testified, “[T]hey were owned by the farm. I suppose they
were owned by both of us.” Glen Albrecht testified during the trial that most
of the equipment, machinery, and vehicles at issue were used in the farming
operation, he and Sharleen Albrecht owned some of this property, and he
inherited some of the property from his uncle. Although Glen Albrecht testified
that he inherited some of the equipment and vehicles, he did not explain or
provide any other evidence identifying which property he inherited.

[¶18] Glen Albrecht testified that a 1972 grain truck was titled in his name
alone, but he did not present any documentary evidence and he did not present
any evidence about the titles for any of the other vehicles. Glen Albrecht
presented receipts for the purchase of three of the vehicles or equipment
showing the assets were sold to him, but the district court did not find this
evidence persuasive in determining ownership. This Court has recognized that
having a legal title to a vehicle is strong evidence of an intention not to share
the property, but it is not dispositive and the trial court may look beyond the
legal title to determine ownership interests when the vehicle was purchased
with funds from the parties’ joint bank account. See McKechnie v. Berg, 2003
ND 136, ¶ 14, 667 N.W.2d 628.

5
[¶19] The evidence supports the district court’s finding that Sharleen Albrecht
had an ownership interest in the farm equipment, machinery, and vehicles at
the time of her death.

B

[¶20] Glen Albrecht argues the district court erred by concluding the Estate
was entitled to half of the proceeds from the crops grown in 2012. He contends
any interest Sharleen Albrecht had in the crops as a result of being a joint
tenant of the land on which the crops were grown terminated upon her death.
He argues the court erred by failing to consider the expenses related to growing
and harvesting the crops.

[¶21] The district court found Sharleen Albrecht maintained an interest in the
proceeds from the sale of the 2012 crops. The court found Glen Albrecht sold
the crops for a total of $325,560.25 and he did not pay any of the proceeds of
the sale to Sharleen Albrecht or the Estate. The court explained, “Because
Glen and Sharleen operated the farm together, she was entitled to one-half the
proceeds from the crop sales regardless of whether the crops were sold prior to
or after her death. The Estate is therefore entitled to one-half the value of the
proceeds of the barley, soybeans, and corn in the amount of $167,780.13.” The
court found the expenses related to the crops were paid out of the farm
checking account prior to Sharleen Albrecht’s death, and Glen Albrecht did not
present any evidence about expenses incurred after her death.

[¶22] The district court’s decision to award half of the 2012 crop proceeds did
not rely on Sharleen Albrecht’s joint ownership of the land; rather, the court
found she was entitled to half of the proceeds because Glen and Sharleen
Albrecht operated the farm together. The evidence supports the court’s
findings.

C

[¶23] Glen Albrecht argues the district court erred by concluding the Estate
was entitled to half of the funds in his checking account. He contends he was
the only party to the account, Sharleen Albrecht was not listed as a beneficiary

6
or a P.O.D. designee, and he was therefore the sole owner and the Estate was
not entitled to any of the funds in the account.

[¶24] The district court found the Estate was entitled to half of the funds in
the farm account at the time of Sharleen Albrecht’s death. The court found the
balance of the joint farm account was $41,077.07 on July 29, 2013, the farm
checking account was owned by Glen and Sharleen Albrecht, Glen Albrecht
moved the funds in the farm checking account to a different bank, and he
removed Sharleen Albrecht’s name from the account. The court concluded the
Estate was entitled to $20,538.54 for Sharleen Albrecht’s interest in the farm
checking account.

[¶25] Mark Albrecht and Glen Albrecht both testified the farm account was a
joint checking account throughout the marriage and both Sharleen and Glen
Albrecht were parties to the account. Evidence established that Glen Albrecht
opened a new checking account solely in his name with another bank while the
divorce was pending, he used the new account for operation of the farm, and
he placed the proceeds from the sale of the 2012 crops in the new account. Glen
Albrecht also testified Sharleen Albrecht still had an interest in the farm
checking account after the new account was opened even though her name was
not on the account. Evidence established the farm account had a balance of
$41,077.07 on the day of Sharleen Albrecht’s death.

[¶26] Section 30.1-31-08(2), N.D.C.C., provides:

During the lifetime of all parties, an account belongs to the parties
in proportion to the net contribution of each to the sums on deposit,
unless there is clear and convincing evidence of a different intent.
As between parties married to each other, in the absence of proof
otherwise, the net contribution of each is presumed to be an equal
amount.

Glen Albrecht testified the farm account originally belonged to both himself
and Sharleen Albrecht and he moved the farm account to a different bank in
his name alone after the divorce proceedings were initiated. The evidence
supports the court’s findings.

7
[¶27] Glen Albrecht also argues the court’s decision resulted in a double
recovery because the proceeds from the 2012 crops were deposited in the farm
account and the Estate was awarded half of those crop sale proceeds in addition
to half of the funds in the farm account. Glen Albrecht did not raise this issue
before the district court. This Court will not consider questions raised for the
first time on appeal. In re Estate of Brandt, 2019 ND 87, ¶ 32, 924 N.W.2d 762.
Because Glen Albrecht did not raise this issue in the district court, we will not
consider the issue.

IV

[¶28] Glen Albrecht argues the district court abused its discretion by allowing
the Estate’s claimed attorney’s fees and the personal representative’s fees. He
claims the attorney’s fees did not benefit the Estate as a whole because the fees
related to his claims were incurred primarily for the benefit of the personal
representative and the personal representative admitted the only benefit the
Estate gained from incurring the fees was that Sharleen Albrecht’s wishes
were upheld. He also argues the personal representative was allowed an
unreasonable amount of compensation.

A

[¶29] Under N.D.C.C. § 30.1-18-20, “If any personal representative . . . defends
or prosecutes any proceeding in good faith, whether successful or not, the
personal representative . . . is entitled to receive from the estate necessary
expenses and disbursements, including reasonable attorney’s fees incurred.”
For payment of attorney’s fees, the personal representative’s conduct must be
in good faith, free from fraudulent intent, and for the benefit of the estate. In
re Estate of Peterson, 1997 ND 48, ¶ 25, 561 N.W.2d 618. The district court
has discretion in allowing attorney’s fees, and the court’s decision will not be
reversed absent an abuse of discretion. See In re Estate of Johnson, 2017 ND
162, ¶ 18, 897 N.W.2d 921. A court abuses its discretion when it acts in an
arbitrary, unreasonable, or unconscionable manner, when it misinterprets or
misapplies the law, or when its decision is not the product of a rational process
leading to a reasoned determination. Id.

8
[¶30] The district court found the Estate incurred significant attorney’s fees
and costs in defending the petitions filed by Alan Albrecht and Glen Albrecht
while the claims were pending for years. The court found the personal
representative testified the services were necessary to defend the Estate’s
interests and no contrary evidence was presented. The court explained:

Defending against the petition filed by Alan challenging the Will
was necessary to validate the Will and give effect to Sharleen’s
testamentary wishes. Defending against the claims made by Glen
were also of benefit to the Estate because if Glen had prevailed the
Estate would have been indebted to Glen for nearly more than
$150,000.

(App. 40) The district court did not abuse its discretion by allowing the Estate’s
attorney’s fees.

B

[¶31] Under N.D.C.C. § 30.1-18-19, a personal representative is entitled to
reasonable compensation for his services. An award of personal
representative’s fees is reviewed under the abuse of discretion standard. In re
Estate of Hogen, 2015 ND 125, ¶ 48, 863 N.W.2d 876.

[¶32] The district court allowed the personal representative’s fees. The court
found the personal representative provided 392 hours of service over more than
five years, based on a spreadsheet the personal representative prepared, and
the numbers of hours were reasonable given the nature of the matter.

[¶33] The district court adequately explained its decision to allow the
requested personal representative’s fees. The court did not act in an arbitrary,
unreasonable, or unconscionable manner. We conclude the court did not abuse
its discretion.

V

[¶34] Alan Albrecht filed an appellee’s brief, arguing the district court’s
findings are clearly erroneous, the court abused its discretion by allowing the
personal representative’s and attorney’s fees, and the court’s decision should

9
be reversed. Alan Albrecht did not file a notice of appeal. “An appellee is
entitled on appeal to attempt to save the judgment by urging any ground
asserted in the trial court.” Kalvoda v. Bismarck Pub. Sch. Dist. #1, 2011 ND
32, ¶ 14, 794 N.W.2d 454 (quoting Livingood v. Meece, 477 N.W.2d 183, 188
(N.D. 1991)). “A cross-appeal is necessary only if the appellee seeks a more
favorable result on appeal than it received in the district court.” Kalvoda, at
¶ 14. Alan Albrecht is seeking to have the district court’s decision reversed.
To the extent any of Alan Albrecht’s arguments differ from Glen Albrecht’s
arguments, we do not address them.

VI

[¶35] We have considered Glen Albrecht’s remaining arguments and conclude
they are either unnecessary to our decision or without merit. We affirm the
judgment.

[¶36] Jerod E. Tufte
William A. Herauf, D.J.
Gerald W. VandeWalle
Daniel J. Crothers
Jon J. Jensen, C.J.

[¶37] The Honorable William A. Herauf, District Judge, sitting in place of
McEvers, J., disqualified.

10