(dissenting).
[¶ 25] In affirming one of the most disparate property distributions we have seen, the majority deviates from fundamental principals of our domestic relations jurisprudence. I therefore respectfully dissent.
[¶ 26] As we have said so many times, “A property distribution need not be equal to be equitable, but a substantial disparity must be explained.” Fox v. Fox, 1999 ND 68, ¶ 7, 592 N.W.2d 541 (citing Fisher v. Fisher, 1997 ND 176, ¶ 15, 568 N.W.2d 728). Here, the trial court awarded the property sixty-five percent to thirty-five percent in favor of Debra Mellum, but offered no explanation of its allocation.
[¶ 27] The majority offers its “brief’ in favor of Debra Mellum and speculates about what must have been the ’trial court’s rationale. In doing so, it inconsistently picks and chooses among the facts recited by the trial court and “finds” facts never found by the trial court.
[¶ 28] Contrary to the majority’s assertion, the trial court never found or said John Mellum engaged in economic misconduct or in noneconomic misconduct. The trial court noted extramarital sexual conduct by both parties, and domestic violence by both. The trial court did not say, find, or conclude that failure to wholeheartedly participate in marital counseling is noneco-nomic misconduct, nor does the majority cite any authority for such a premise.
[¶ 29] “ ‘When neither the findings nor the transcripts of the proceedings disclose the basis for the court’s conclusions of law and the decision, we cannot properly perform our appellate court function.’ ” Emter v. Emter, 1999 ND 102, ¶ 8, 595 N.W.2d 16 (quoting Pankow v. Pankow, 371 N.W.2d 153, 157 (N.D.1985)).
We must have some “indication of the rationale of the trial court in distributing the property.” Tuff v. Tuff, 333 N.W.2d 421, 424 (N.D.1983). The “findings of fact are adequate when they provide us with a clear understanding of the basis of the trial court’s decision.” Tuff. When justification for a substantial disparity is absent from a district court’s division, we hesitate to infer an explanation because of “the fact-dependent nature of equitable property distributions.” Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 622 (N.D.1994).
... The district court did not adequately explain its reasoning for the substantial disparity in this case.
We reverse and remand for the district court to adequately explain the substantial disparity in the division or “to *588change the property division to make it equitable.” Gaulrapp; Schatke [v. Schatke, 520 N.W.2d 833,] 838 [ (N.D.1994) ].
Linrud v. Linrud, 552 N.W.2d 342, 346 (N.D.1996).
[¶ 30] I would reverse and remand for the district court to make adequate findings, and to adequately explain its distribution or to make a more equitable one.
[¶ 31] Dale V. Sandstrom