Partition Accounting in North Dakota: Trust-Exclusive Expenses Cannot Be Charged to a Cotenants’ Share; Rule 60(a) May Correct a Decree to Conform to an Adopted Referee Recommendation

1. Introduction

Tischmak v. Theurer, 2025 ND 235, is a family land partition dispute arising from inherited Grant County farmland held in tenancy in common among five siblings. After their parents conveyed the land to the children (reserving life estates), four siblings later transferred their interests into the Tischmak Family Irrevocable Trust, while Bryan J. Tischmak retained his one-fifth interest individually. The Trust also entered an “Exclusive Rock, Sand, and Gravel Materials Agreement” with Knife River Corporation covering parts of the property.

Bryan brought an action seeking partition and an accounting of land income. The district court appointed a single referee/appraiser by stipulation and ultimately adopted “Recommendation 5” from the referee’s report to divide the land. On appeal, the Supreme Court of North Dakota addressed three central issues:

• whether the district court abused its discretion by adopting Recommendation 5 rather than Recommendation 2 (which would have awarded Bryan the homeplace);
• whether the district court properly used N.D.R.Civ.P. 60(a) to correct an internal inconsistency (the written order mistakenly awarded Bryan “all” of Section 33, contrary to Recommendation 5); and
• whether the accounting correctly allocated land income and expenses—particularly whether Trust-only expenses could effectively be charged against Bryan’s one-fifth share.

2. Summary of the Opinion

The Supreme Court largely affirmed the partition plan. It held the district court did not abuse its discretion in adopting the referee’s Recommendation 5 and that the court’s findings were consistent with that recommendation. It also held the district court properly granted the Trust’s N.D.R.Civ.P. 60(a) motion to correct the clerical mistake awarding “all” of Section 33 rather than the “S1/2” of Section 33, because the court’s express intent was to adopt Recommendation 5.

However, the Supreme Court modified the judgment on the accounting issue. The district court had found certain Trust-exclusive expenditures (accounting fees, Trust taxes, and litigation attorney fees) “are not to be paid with Bryan’s money,” yet the final computation failed to reimburse Bryan for his one-fifth share of those sums. The Supreme Court therefore modified the judgment to add $2,417.20 owed to Bryan for reimbursement of Trust-exclusive expenses paid from income in which he held a one-fifth interest.

3. Analysis

A. Precedents Cited

1) Review standards in partition and post-judgment motion practice

The court anchored its standard-of-review analysis in Beach Railport, LLC v. Michels, 2017 ND 240, ¶ 11, 903 N.W.2d 88, reiterating that partition decisions regarding “proper division” and “form of relief” are reviewed for abuse of discretion, while factual findings are reviewed for clear error, and legal questions are fully reviewable.

It then cited rule-specific cases for the abuse-of-discretion review of post-trial motions:

• Est. of Vizenor ex rel. Vizenor v. Brown, 2014 ND 143, ¶ 8, 851 N.W.2d 119 (Rule 52(b));
• Watford City Lodging LLC v. Miskin, 2019 ND 136, ¶ 7, 927 N.W.2d 860 (Rule 59(j));
• State v. 1998 Jeep Grand Cherokee Auto., 2016 ND 9, ¶ 6, 873 N.W.2d 672 (Rule 60(a)).

The quoted abuse-of-discretion definition from 1998 Jeep Grand Cherokee did more than supply boilerplate; it framed the opinion’s repeated conclusion that the district court’s approach to (i) selecting Recommendation 5 and (ii) correcting the Section 33 description was a rational, non-arbitrary exercise of judgment.

2) Substantive partition discretion and equitable flexibility

On the merits of the partition plan, the court relied on In re Est. of Loomer, 2010 ND 93, ¶ 17, 782 N.W.2d 648 for several core principles:

• Partition is a matter of right between cotenants.
• District courts have “wide judicial discretion” and “great flexibility” to do equity in partition.
• Owners must receive “equal consideration” in partition in kind, including non-economic factors (sentimental attachment, the situation of the owners, and the location/character of the land).

Loomer thus supported the district court’s ability to weigh competing sentimental claims to the “homeplace” without treating any one sibling’s preference (or retirement plan) as automatically controlling.

3) Deference to factfinding and credibility choices

The opinion used Berger v. Repnow, 2025 ND 25, ¶ 13, 16 N.W.3d 452 to reject Bryan’s attempt to re-litigate the accounting evidence on appeal. By invoking the rule that the appellate court does not reweigh evidence or reassess credibility, the court upheld the district court’s reliance on the Trust checking-account ending balance as the central accounting record.

B. Legal Reasoning

1) Why Recommendation 5 survived abuse-of-discretion review

The district court expressly found that multiple siblings (not only Bryan) had sentimental attachment to the homeplace. Applying the partition framework described in Loomer and the governing statutes—particularly N.D.C.C. §§ 32-16-13 (quality/quantity “relatively considered”) and 32-16-15 (court may “confirm, change, modify, or set aside” referee report)—the Supreme Court accepted that the district court could rationally decide that no one sibling had a higher emotional claim warranting awarding the homeplace to Bryan.

The opinion also addressed Bryan’s practical objections (access, fencing, agricultural management, and Knife River Agreement effects) by emphasizing:

• the district court considered the Knife River Agreement, found it had not yet generated income, and still structured the partition with that agreement in mind (awarding Bryan land subject to the agreement);
• access concerns were undercut by testimony and by the legal status of section lines under N.D.C.C. § 24-07-03, which treats section lines as public roads (and preserves use for adjacent landowners even if closed to the public).

In short, the Supreme Court treated Recommendation 5 as a permissible equitable choice among imperfect options, rather than an outcome requiring the “best” plan as Bryan framed it.

2) Consistency of findings with Recommendation 5 (and “contiguous” at a corner)

Bryan argued certain findings (about access and contiguity) implied he must have been awarded all of Section 33. The Supreme Court rejected that reading, including by adopting a practical definition of “contiguous” as “touching along a boundary or at a point” (noting the parcels shared a common corner on an open section line).

3) Rule 60(a) correction as a clerical mistake, not a substantive rewrite

The district court’s initial Trial Order stated Recommendation 5 was “adopted and confirmed,” yet mistakenly awarded Bryan “all” of Section 33—something no referee recommendation contemplated and which would have over-allocated value by the referee’s numbers. That discrepancy mattered: it demonstrated that the written description was not the true decision the court intended to enter.

Under N.D.R.Civ.P. 60(a), a court may correct “a clerical mistake or a mistake arising from oversight or omission.” Citing the district court’s explicit statement at the hearing that the “all of Section 33” language was clerical and inconsistent with its intent to adopt Recommendation 5, the Supreme Court concluded the correction fit within Rule 60(a)’s proper scope: conforming the written order to the decision actually made, rather than changing the decision itself.

4) Accounting: Bryan’s share cannot be reduced by Trust-exclusive expenses

The most concrete “new rule application” in the case is the court’s insistence that where land income is jointly owned (here, one-fifth belonging to Bryan), expenses that are exclusive to the Trust—Trust accounting services, Trust income taxes, and litigation counsel for the Trust—cannot be charged against Bryan’s share absent a lawful basis. The district court even found these items “are not to be paid with Bryan’s money,” but its arithmetic did not implement that finding.

The Supreme Court treated the issue as an internal inconsistency between findings and the resulting award, and it corrected the judgment by adding $2,417.20 using N.D.R.App.P. 35(a)(1) (modification on appeal).

C. Impact

1) Partition practice: sentimental attachment is relevant, but not dispositive

This decision reinforces that North Dakota district courts may weigh sentimental attachment broadly across co-owners, and may decline to privilege one party’s plans for the property (e.g., retirement ranching) when the record supports comparable attachments among other owners. The opinion also signals that “efficient agricultural management” for all stakeholders—including an existing renter—can be a legitimate equitable consideration when choosing among referee options.

2) Section-line access as a recurring answer to “landlocked” objections

By relying on N.D.C.C. § 24-07-03 to rebut access concerns, the court highlights a practical feature of North Dakota property law that will likely recur in rural partition disputes: parties arguing access barriers must grapple with section-line road rights and the availability of section-line use to adjacent landowners.

3) Rule 60(a) boundaries: aligning the decree with the court’s expressed adoption

The Rule 60(a) portion of the opinion provides a useful blueprint for distinguishing clerical correction from substantive change. Where a court expressly adopts a defined recommendation (here, “Recommendation 5”) and the written land description deviates in a way that is plainly inconsistent with that adoption (and value allocation), Rule 60(a) can be used to conform the judgment to the intended decision.

4) Accounting clarity: Trust-only costs must not dilute a cotenant’s income share

The modification creates a practical warning for fiduciaries and co-owners using entity structures (trusts, LLCs) in shared-land situations: if entity administration costs and entity litigation expenses are paid from revenues in which non-entity co-owners share, courts may require reimbursement so that those costs remain allocated to the entity side—especially where the trial court finds they “are not to be paid” with the non-entity owner’s money.

4. Complex Concepts Simplified

• Partition (in kind): A court-ordered physical division of land among co-owners (as opposed to selling the land and dividing the proceeds).
• Referee (partition referee/appraiser): A court-appointed neutral who evaluates the land and proposes ways to divide it consistent with the parties’ ownership shares. Under N.D.C.C. § 32-16-46, parties may stipulate to a single referee instead of three.
• Contributory value payment: A cash equalization payment ordered to address inequality in the value of land parcels distributed (authorized generally by N.D.C.C. § 32-16-41).
• Clearly erroneous (fact review): An appellate court will not overturn findings supported by evidence unless left with a “definite and firm conviction” a mistake was made.
• Abuse of discretion: A decision is reversed only if arbitrary/unreasonable, not based on a rational process, or based on misapplication of law.
• Rule 60(a) clerical mistake: Allows correction of writing/record errors so the judgment reflects what the court actually decided, not a vehicle to change the decision after the fact.
• Section lines as roads (N.D.C.C. § 24-07-03): In North Dakota, section lines are deemed public travel corridors to a specified width; even if closed to the public, adjacent landowners may still use them—often defeating claims that a parcel is inaccessible.

5. Conclusion

Tischmak v. Theurer affirms the breadth of district-court discretion in partitioning family farmland, especially when multiple co-owners assert comparable sentimental interests and when the court selects among referee-proposed options to promote workable agricultural management. The decision also clarifies two procedural and remedial points with practical bite: (1) N.D.R.Civ.P. 60(a) permits correction of a partition decree’s land description when it conflicts with the court’s expressed adoption of a referee recommendation; and (2) in partition accounting, a cotenant’s share of land income should not be reduced by Trust-exclusive administration, tax, and litigation costs—leading here to a modification awarding Bryan an additional $2,417.20.