dissenting.
[¶ 23] I dissent to the majority’s affir-mance of the business asset value of $40,000, which is ’included in the marital estate and awarded to David Boehm.
[¶ 24] The majority writes a rationale of how the trial court could have achieved this result regarding the valuation of the business. The problem is, it is not what the trial court did, and what the trial court did is not permitted.
[¶ 25] The majority says, at ¶ 14:
The agreement between David and his father was styled as a “lease with option to purchase.” That description is not conclusive and we are not bound by it. Rather than being a lease with an option to purchase the video stores, the agreement is more akin to a conditional sale. In this instance, David has the capacity to realize a value from the agreement because he has the ability to complete the sale. Future interests may constitute intangible personal property which are marital assets subject to equitable distribution.
(Citations and footnote omitted). This is all fine and good, but it is not what the trial court found or did.
[¶26] What the majority conjures is refuted by the trial court’s Memorandum Opinion, at its Findings of Fact, Conclusions of Law, and Order for Judgment. In its Memorandum Opinion, the trial court writes:
I conclude that the record of the business arrangement between the defendant and his father indicates that he has little of value in terms of actual equity in the businesses, but am going to attribute the sum of $40,000 to him based on his experience and management abilities if he is able to continue the business relationship with his father.
(Emphasis added). In its Findings of Fact, Conclusions of Law, and Order for Judgment, the trial court says:
The case involves difficult issues regarding computation of the parties’ assets based on the unusual business relationship the Defendant had with his father, Albert Boehm. The Defendant’s father continues to be the owner of video store businesses in Bismarck and Dickinson, which the Defendant was leasing with certain purchase option provisions that would contemplate a buy-out of the businesses at a future date. The Plaintiff asserted that the businesses should be valued at their full value and attributed to the Defendant as a marital asset of $300,000. The destruction by fire of the major Hollywood Nites video business prior to the divorce trial, coupled with the apparent faltering nature of the business due to the Defendant’s failure to provide adequate management, or fulfill terms of the business arrangement, with his father, have left the impression that the business asset figure the Plaintiff proposes is significantly inflated. The record of the business arrangement between the Defendant and his father indicates that he has little of value in terms of actual equity in the businesses. The sum of $4-0,000 is attributed to him based on his experience and management abilities.
(Emphasis added).
[¶ 27] As the majority notes at ¶ 13, “Earning power is not, however, property that a court may divide as it would a parcel of land or a collection of household goods.” Nastrom v. Nastrom, 262 N.W.2d 487, 493 (N.D.1978). But that is what the trial court did when it included and distributed a “$40,000 asset” of David Boehm’s “experience and management abilities.” The trial court could not do it, but did. *683Therefore, I would reverse and remand on the issue.
[¶ 28] Dale V. Sandstrom