*1 Marriage David L. of: In re the Petitioner, Appellant,
JUSTIS, JUSTIS, Respondent.
Joyce Ann C1-85-1371.
No. of Minnesota. Appeals
Court 25, 1986.
March 29, 1986. May Denied
Review *2 Chamberlain, Paul W. Wayzata,
pellant. Morry Rothstein, N. Minneapolis, for re- spondent. Heard, considered and decided FORS-
BERG, P.J., and LANSING and RAN- DALL, JJ.
OPINION FORSBERG, Judge.
David Justis appeals from judgment and decree and from the trial court's denial of his motion for amended findings or a trial, new the trial court’s decision on divi- sion of marital property, maintenance, child support, custody, and attorney’s fees. We affirm.
FACTS Joyce David and Ann Justis were mar- 14,1970. David, May ried appellant in this action, began medical school shortly before parties were married. Respondent, Joyce, supported paid part David of his During medical school tuition. year school, 1973, final par- medical child, Natasha, ties’ first was born. Re- spondent took a six-week maternity leave job. from her After completed medical school, respondent working continued as an operating room nurse. She accumulated credits, college through additional her em- ployment college, aat which enabled her to teaching obtain a certificate. She has nev- er worked as teacher. following Nicole, the birth of second child, respondent quit working and has not worked since then. Neither her nursing nor teaching license her certificate are cur- parties rent. The have had more three twins born daugh- and a ter born in 1982. Emergency Appellant sold employed by attributable to boat. January, 1985, the boat in He
Physicians Association Professional deposited in a mon- proceeds (EPPA). He is also a shareholder ey spent market account and the remainder guaran- employment contract EPPA. His living expenses and reduction some $72,- salary tees minimum annual him a found this debts. He forty-hour on a work week. based *3 proceeds use of the boat sale to be in income, for substantial overtime receives Consequently, contravention of the order. hours, of forty time in excess worked appellant pay respondent’s it ordered ap- from EPPA. He also earns bonuses money fees with the market $1,000 per year teaching at a proximately funds. returns, on college. local Based tax divorce, prior filing A few weeks appellant’s gross found $14,612.40 appellant from a withdrew trust years preceding the dissolution four up, account set under the Uniform Gift be: Act, parties’ daughter, Minors for the Ni- cole. $72,285 $80,245 The trial court also found $89,039 parties’ diverted the 1983 tax refund of $80,273 post $707 to a office and cashed it box respondent’s knowledge without or con- employment include Appellant’s benefits sent. sharing plan, pension plan profit and a legal custody court ordered The sole sharing profit plan is collectible at parties’ respondent. five children to pension present tirement. The value of his plan was found the trial court to be pay plus on his based contract $70,153.02. pay, to be overtime October, 1983, appellant borrowed support in and ordered accordance with profit sharing plan from his support guidelines. find- The court’s cars consolidate loans two acknowledged ings fluctuations repaying the loan a boat. pellant’s cause income would sometimes interest, monthly payments 14V2% amount, $1,935, to exceed are approximately The trial court $700. up- guidelines the occasional but found loan to added the value ages appropriate given the ward deviation sharing plan profit of the and found the needs, the children’s $107,468.58. plan total value to be respon- disparate incomes dent, living chil- the standard of temporary A order issued marriage enjoyed have had the dren would 10, 1984, April court on authorized assigned the dissolved. The court been apply proceeds lant to sell the boat and respondent. entirely from the sale to reduce encumbrance Approximately the boat. trial court divided the marital assets profit sharing follows: loan from the account was and debts as capital assets,
ISSUES and the income of each party. 1. Did the trial court err in its division property?
of marital Id. *4 Appellant argues the court erred in refusing 2. Did the trial court err in awarding respondent the in mari- legal joint custody? order tal awarding assets while him in 3. Did the trial court err in its award of addition, apportioning, assets and in support? entire marital debt him. 4. Did awarding the trial court err in dividing property marital respondent $750 month maintenance just equitable court is to make a prop- and period a of years? five erty division. Minn.Stat. 518.58. How- 5. Was against biased ever, the property division need not be appellant, entitling him to a new trial? equal mathematically just eq- and 6. Did the ordering trial court err in Johns, 564, uitable. Johns v. 566 fees? express While the court did make not an awarding that it a dispropor- was
ANALYSIS tionate share property marital find, respondent, reviewing judg- we in I. decree, ment and that the court made the Property Settlement findings required by Minn.Stat. 518.58 as The trial court has broad discretion in findings well justify as the dispropor- property divisions and the court’s decision tionate division. The indicate that not be reversed absent a clear abuse of respondent’s vocational skills are outmod- Bogen Bogen, discretion. 261 N.W.2d ed, up date; her licenses are not she 606, (Minn.1977). 609 received the homestead which is in need of (1984) governs Minn.Stat. 518.58 repair; substantial she been has out of the trial court’s division property. work many years; force for appellant is court is to make in employed high-paying profession; a just equitable a pellant division of the mari- is in a position acquire better property parties tal assets; capital without re- future respondent has no gard misconduct, to marital making after except and mainte- findings regarding nance; of proper- respondent division is the custodian of five ty. young she is unable work for future; respondent immediate In arriving just equitable Id. at a liquid ceived almost no in proper- assets division, the court is to take into considera- ty division. tion health, age, station, occupation, Taking consideration, these into amount and sources of vocation- we hold trial court did not abuse its skills, al employability, estate, liabilities, in awarding respondent dispro- a needs, opportunity acquisition portionate for future share of the marital estate. The supports considering the trial court’s determi- trial did evidence not err nation, affirm even if thus we must we along property with the assets origi- result would have reached a different apportioning division and the debt to Posselt, 575, Minn. Posselt nally. lant. (1965). More- 660-61 Appellant argues that the trial court express find- over, of an the absence awarding erred him a lien on the ing awarding respondent larg- that it was marital homestead. The award of er share of marital assets is not fatal equity part homestead was of the whole Haglund, See Giencke defect. settlement, just which we hold is (modi- (Minn.Ct.App.1985) equitable. The court did not abuse its express fication of child without awarding discretion in the homestead to changes prior made order un- free and clear of fair). claims. Appellant argues that the court erred in plan adding
valuing profit sharing ordered value, to the loan amount existing maintain life insurance of which reflects a deduction for the loan for the children. See benefit amount. We The loan taken from hold the court did not abuse its discretion sharing plan legally is secured en- ordering appellant existing to maintain note, repayable forceable interest 14V2% life equivalent. insurance or its year period. over a three The trial court *5 argues Finally, appellant the court’s was, effect, found in that the note an asset disposed that he “secreted and of and, such, profit sharing of account as from Nicole’s trust as he [funds account] increased the account’s val- unjustified saw fit” are since appellant’s profit ue. The value of spent money for marital debts and liv sharing plan consists of both ing expenses. supported The is equity and the debt. We cannot evidence, clearly thus is not erroneous. say that the court in abused discretion of fact do not indicate wheth valuing plan in manner. this account, er the trial court took the trust Appellant argues that the trial proceeds, the boat sale or the tax refund assigning abused its in account it into when divided the marital parties. marital debt both Debt However, it estate. was within the court’s apportionable part prop is as marital so, discretion to do since these were all Filkins, Filkins v. erty settlement. 347 funds. Swanstrom v. arguably marital 526, (Minn.Ct.App.1984). N.W.2d 529 How Swanstrom, 634, (Minn.Ct. 359 N.W.2d 638 ever, Filkins does not require the trial App.1984). apportion court to The divi debts. sion of in marital debts is treated the same II. Dahlberg
manner as division of assets.
Dahlberg, 358
76,
(Minn.Ct.App.
N.W.2d
80
Custody
Joint
1984).
in
claims
court erred
respondent’s only
Here the
income con
denying
request
joint legal custody
his
paid
sists of child
and maintenance
parties’
agrees
children. He
by appellant.
part
Apportioning
physical custody
in
will serve
to her
mini
severely
would
limit the
the best interests of the children.
mal financial resources needed to
“A
custody
determination of child
must
herself
and
five children. “[A]
on
be based
the best interests of the child.”
may
party to a dissolution
be held liable for
Heard,
Heard v.
353
N.W.2d
though
party
marital debts
the other
even
joint
Dahl
payment.”
(Minn.Ct.App.1984).
custody
When
receives the benefit of
berg
consider,
Dahlberg,
sought,
These deal with the which factors of parents cooperatively parent- relate requires make reason- court to ing mostly and bear on the decisions estimate net able of income before joint joint legal custody; legal award of applying guidelines. equal custody partic- defined as the court determined ipation parents on of decisions prior income years’ net from tax returns upbringing a child. and stubs. It also reviewed Heard, (citation at 161 omit- employment contract. evi Based this ted). A that an award serves the testimony dence and on oral the court child’s best interests not be disturbed “approxi income clearly unless erroneous. Id. 4,500 per mates month.” The court also Evidence each the factors was found: presented trial court. The evidence The amount child support the Petition- supports court’s conclusion that obligated er pay, will be it is since legal physical custody sole rest with based on variable amounts of net respondent. may the statutory guidelines. exceed departure This is appropriate when con- III. given sideration is to: Support Child a.) age of the children and their Appellant objects to the trial court’s con- physical, legitimate educational ex- sideration overtime income calcu- needs; tracurricular lating support. He claims that the b.) the disparity between financial may take only his EPPA contract resources and needs of the custodial and guaranteed salary into consideration. The parent; noncustodial trial court found earned substan- c.) living the standard of the children tial overtime EPPA in the enjoyed marriage would have this had *6 years immediately preceding three the dis- not been dissolved. solution. findings satisfy requirements These the well It is settled law the trial that 518.551, 5(e) (1984) subd. deviation respect court has broad with to guidelines. from the conclude, We after support of Rutten, the children. v. Rutten reviewing evidence, the that trial court’s 47, (Minn.1984). 347 N.W.2d 50 We will determination of net income has a reason- not reverse trial court’s decision unless able basis fact. The court appropri- took clearly that is decision erroneous. Id. at ate notice of income, variable If 51. the determination has a reasonable which will in some months cause to acceptable fact, basis it must be guidelines, exceed and the DuBois, court made affirmed. DuBois v. 335 N.W.2d 503, (Minn.1983). appropriate 507 justify Determination of to occa- net question of income is a fact. sional Letourneau deviation. Letourneau, (Minn. 476, v. 350 N.W.2d 479 Moreover, appellant’s tax returns and However, Ct.App.1984). pay stubs show his overtime income to be a where the critical evidence is documenta regular portion and substantial of his annu- ry, is no there need us to defer to the salary. al In 1983 overtime income consti- trial court’s assessment of meaning. nearly gross tuted of his annual Halper Halper, 360, v. 348 N.W.2d 363 Contrary income. to argument (Minn.Ct.App.1984)(quoting Ploog Ogil v. forcing that the court is him to work over- vie, 49, (Minn.1981)). 53 time meet monthly living to expenses, Appellant argues supports evidence the trial court's con- specific to make a failed on his net clusion that regular, overtime has been 40, Riley Riley, 369 N.W.2d past sever- 518.552. income for the steady source of argues oppor- (Minn.Ct.App.1985). Appellant that his years. al may in the future tunity overtime to work properly Spousal maintenance is on cur- support is based Child decrease. spouse seeking where the mainte awarded 518.551, net income. rent (1) property, nance lacks sufficient includ Kramer, (1984); Kramer subd. 5 her, ing property apportioned marital to (Minn.Ct.App.1985). The needs, (2) for her reasonable is provide on future in- speculate cannot through appropri support herself unable to setting support. come in employment or is the custodian of ate court erred in not argues the Appellant children and circumstances make it young pay child ability on his making required that she not be appropriate guidelines im- support. The child 518.552, employment. Minn.Stat. seek obligor’s into consideration plicitly take 1(a) (b) subd. we affirm the trial ability pay. Since The factors to be considered cannot findings of net we court’s awarding are in Minn. maintenance listed its discretion find the court abused 518.552, subd. and include finan Stat. § appellant’s net in- guidelines plying seeking spouse main cial resources support obli- his child come to determine person and the tenance Halper, 348 N.W.2d gation. Halper v. See sought pay. is Find whom maintenance 360, 363, n. 1 con ings are not on each factor the court also claims sidered. reducing his net income in not erred 2(g) (Supp. Minn.Stat. § $700, approximate amount 1985) requires the court to consider the monthly payment on “ability spouse from whom mainte- appel apportioned was loan. This debt sought to meet his needs while nance property settlement. part lant as spouse seeking main- meeting those of the Shifting debt to reduce tenance.” settle income would defeat effects of the debt on rea- ment and visit the The trial court reducing living expenses to be children sonable obligated legally amount court found lacked support. This court has including prop- contribute to their property, sufficient consequences her, held financial to meet her reason- erty apportioned to “[a]dverse should minimized of marital dissolutions source of income is Her sole able needs. greatest children to the extent for minor as maintenance and she receives Helland, possible.” Helland insufficient support, an amount (Minn.Ct.App.1984). The needs. The her reasonable provide for *7 in court acted within its discretion not trial respondent to be the cus- court also reducing appellant’s by whose circum- young children todian payments. the loan amount of that she not be appropriate it stances make full-time em- time to seek required at this IV. home. outside the ployment Maintenance expenses en- were Appellant’s evidence, the trial court did but tered into
Appellant argues that the trial court did ability specific on his not make a pay when it or- not consider his documentary showed evidence pay. The pay respondent $750 dered him to approxi- expenses to be appellant’s monthly years. for five Our month maintenance $1,954. to his maintenance mately Added maintenance awards standard of review for $2,689, obligations, which total whether the trial to determine monthly expenses total light his discretion in of the statu- abused its evident, under the circum- It is in Minn.Stat. tory guidelines contained stances, income is insuffi misconduct and warrants a fee reduced respondent, cient to meet the total needs of award. himself; however, the children and “[e]ach 518.14 authorizes awards of on case must be determined its own facts spouse’s fees based on the need single statutory disposi and no factor is carry “to or financial assistance on Riley, tive.” at 45. proceeding.” contest the [dissolution] findings There little doubt under trial court has broad discretion award by made the court that demon attorney’s fees and the award will not be strated need for She was maintenance. disturbed absent clear abuse of discre- significant liquid awarded no marital as Solon, tion. Solon v. goods, sets. home She received household (Minn.1977). equity, pension interest appellant The court ordered pay re- profit-sharing plan, which not become spondent’s attorney’s money fees from the IRA, retirement, payable until her by market set up account $1,500 savings stocks and a bond. The proceeds. pre- sale the boat The court had not court’s that she viously proceeds applied ordered the re- appellant. by work is uncontested holdWe lien duce the on boat. When the court court did trial not abuse its discretion so, setting maintenance. Faced with a discovered had not done it diffi situation, cult the court evaluated the evi its may entered order. “The court autho- proper dence and arrived conclusion. money rize the collection of awarded execution, sequestered, or of property out
V. other any power or manner within Appel- the court.” Minn.Stat. 518.14. Bias lant does not claim the court outside acted Appellant claims the trial court powers. its bias, improperly considering demonstrated setting support, misconduct in Appellant's simple claim that this awas 518.17, contrary to Minn.Stat. unsupported by divorce is the record and subd. 2. The complex the number of issues he raises appellant claims reflect the court’s bias appeal. deal spending with sale boat proceeds in order, violation of DECISION cashing spending a marital tax refund The trial court did not its abuse discre- respondent’s knowledge without or con in the property, tion division marital sent, “surreptitious and his squandering” custody, determination of and the orders $14,612.40 from Nicole’s trust account for child and maintenance. The following parties’ separation. Each of not against appel- court was biased these factual supported by are lant. The trial court did not abuse evidence. in ordering appellant The trial court's statements spondent’s attorney’s respon- fees where record are relevant to the settle- protect dent needed financial assistance to ment, and do against bias reflect rights her in the dissolution. lant.
Affirmed.
VI. RANDALL, Judge, dissenting *8 Attorney’s Fees I respectfully majority dissent from the Appellant argues the questions division, on the of property (1) excessively fees are given simple the na support, and maintenance. I would re- (2) ture of this case and the cross-examina mand appellant equitable of on these issues a by tion for more respondent’s attorney. division, He property claims the brought of appel- cross-examination recalculation up, inappropriately, examples of marital corresponding lant’s net income and recaí- boat, appellant support, redetermi- When his the of child and a sold court culation pay originally proceeds mainte- ordered appellant’s ability to the the nation of sale, $12,325, applied to be to reduce the nance. boat, assigned encumbrance on a debt the Although it is true the trial court that appellant. changed then to court divisions, in property has broad temporary order in the final decree and be on its own each case must considered appellant ordered approximately Krohn, 284 Minn. facts. Krohn $10,000 proceeds respon- of the boat sale court made Here the fee, attorney yet left dent’s for his key monetary errors that cannot be over- solely appellant’s encumbrance on the boat looked. responsibility. is the of The first error court’s valuation Although the require does not an law I appellant’s profit-sharing plan. While ac- exactly equal property division of between apportioned knowledge that trial court spouses, require it does fairness. Minn. than half of it as- slightly less the value Johns, (1984); Stat. 518.58 Johns signed respon- profit-sharing plan to the (Minn.Ct.App.1984). N.W.2d 564 The dis dent, assigned by the value proportionate property division must be plan supported profit-sharing is not closely scrutinized in each of because sev by Appellant entered into the evidence. court, eral decisions by made plan-holder’s of the evidence the statement against appellant. $77,468.58. present plan, value monetary Another error made the tri- that court added to value appellant’s court was loan, $30,000, computing al net profit-sharing of a amount income. While the court was not limited to out appellant previously that had taken only considering earnings guaranteed against plan obligated and to re- was contract, EPPA under the as ar- pay. total The court divided this inflated gued, the factual are devoid of ($107,468.58) parties, between the but did support for the calculation of a $30,000 court’s any part apportion not monthly net income Yet, of respondent. plan only can $107,000 repays if parties one of the worth The trial court was to make a $30,000 loan. appellant’s of net reasonable estimate monthly applying guide- income before apportionment prop- The trial court’s of Otte, lines. Otte respon- erty and division of debt results in reaching of Instead receiving an of greater dent’s even share estimate, merely reasonable the court listed fig- the marital than the court’s gross for each of the income compounded indicate. The trial ures $80,000, years, past approximately four failing the erroneous division to take net concluded somehow that his income and testimony into account uncontradicted $4,500 per light of was month. $30,000 from the benefits loan were disposable large proportion of equally shared between and obligated support ($1,935 income $15,000 spondent. Respondent received month), ($750 per payments maintenance purchase of proceeds the loan toward the month), profit- repayment and per appellant applied her new Suburban and ($700 month), loan failure to toward his car accuracy of findings insuring the make By failing toward boat. figure net income erroneous. was $30,- portion respondent any share of get up plan claimed, loan needed to to the did $107,000, contest, court-assigned present value by giving appellant salary $72,- credit for the no his EPPA based on annual directly $3,393.34. from the loan which inured 301 was On benefit, gross com- yearly the trial court income over above his pounded salary, a state and a harsh result. conservative combined *9 approximately gross per federal total tax would taxable income limited percent. approximately That would leave maintenance, year dependency those deduc- percent per year, or per $400 or $4800 meaningless Ap- virtually tions are to her. Thus, approximate month total net net. pellant’s attorney calculated the value of $3,800, per That month dif- those five deductions at given ference crucial court-ordered $3,000-3,500per granted to year. If payments totaling per lant, up free the deductions would some Excluding profit-sharing month. loan disposable for income the benefit of him- a repayment, appellant claimed modest family. self and his expense, per living month and the cases, previous In dissolution the Min- trial court order leaves nowhere near that Supreme dispro- nesota Court has affirmed appellant. amount for property portionately low settlements for remanding In for more addition to ac- spouses coupled high when with mainte- finding curate I supreme nance award. The court has also would also remand to the court with in- disproportionately high affirmed property structions reconsider maintenance and spouse coupled awards to when with little support. child However, no I or maintenance. know of no The trial court made no concern supreme case where the court has sanc- ing appellant’s ability pay maintenance tioned a disproportionately property low monthly living expenses. and meet his obligor for spouse settlement while at These are under Minn. requiring spouse the same time to pay 518.552, (1984). Stat. subd. 2 Section a disproportionately high maintenance 518.552, 2(f) specifically requires subd. support award child 100% ability obligor court to consider the guidelines. spouse pay majority maintenance. The states that lack of a A remand court to correct the pay I agree. is not fatal. do not respondent errors I have noted not bar support guidelines child coming Minn.Stat. back to the trial court for an 518.551, (1984) subd. profit- do not list profit- increase in once the sharing loan repayments as an allowable paid loan is off or if appellant gross normally deduction from tak experiences other substantial increases applying en into account guide before respondent income and can demonstrate lines, appellant’s ability but mainte changed circumstances render which nance must be looked at in view his total original decree unreasonable and unfair. picture, including financial sources of in 518.64, I subd. expenses. come and all reasonable Minn. find that would is entitled to re- Knott, 2(f); Knott Stat. lief from the decree and would remand to to reconsider Here property the combined total of the division, maintenance, and child award, order, maintenance support. order, repayment patently and debt are un- fair to based on a net income of
slightly less than month.
In addition to the above court-ordered
payments, appellant carry was ordered
substantial life insurance the benefit the bulk which expense. addition,
is at his own post-tri- failed consider dependen-
al motion that he awarded the
cy deductions five children. Com-
mon sense indicates that with