In Re the Marriage of: Ronald F. Schmitt, petitioner, Respondent, vs. Rosemary A. Schmitt, Appellant.

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-97-2243

In Re the Marriage of:

Ronald F. Schmitt,
petitioner,
Respondent,

vs.

Rosemary A. Schmitt,
Appellant.

Filed August 18, 1998
Affirmed
Amundson, Judge

Scott County District Court
File No. 96-07639

Loren Gross, 8609 Lyndale Avenue South, Bloomington, MN 55420 (for respondent)

Mark A. Olson, 2605 East Cliff Road, Burnsville, MN 55337 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Peterson, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Wife argues that given her health problems, the district court abused its discretion by awarding temporary, rather than permanent, spousal maintenance. Wife also challenges the district court's: grant of joint legal custody, assessments of husband's income and expenses, division of property, and assignment of tax exemption privileges. She also requests appellate attorney fees. Husband challenges the district court's division of property, as well as the district court's award of attorney fees. We affirm.

FACTS

After nearly 17 years of marriage, appellant Rosemary A. Schmitt (wife) and respondent Ronald F. Schmitt (husband) separated. In 1997, after a trial, the district court issued its order, dissolving the marriage and deciding the issues of property division, custody, maintenance, tax exemption privileges, and attorney fees. This appeal followed.

D E C I S I O N

I. Spousal Maintenance

In reviewing a district court's determination of a maintenance award, this court must consider whether the district court abused its wide discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). We will not find an abuse of discretion unless a conclusion is clearly erroneous and contrary to both logic and the facts. See Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

The determination of the appropriateness of spousal maintenance is dictated by Minn. Stat. § 518.552. The district court awarded wife temporary maintenance(1), but determined that wife would be able to find employment and ultimately become self-sufficient. Wife argues that because of her health problems, she is unable to seek and maintain employment. The district court found that many of wife's health problems were "psychosomatic in nature or triggered by the stress related to the unresolved dissolution proceedings." Further, the district court found that while wife was convinced that she was unable to find employment, "the evidence suggests that with appropriate counseling, education, and motivation, [wife] can dramatically improve her employability."

Wife argues that the district court, without the support of the record, portrayed her health problems as imaginary. Only two people--neither of whom were medically trained--testified regarding wife's medical problems: Dr. Phillip Haber, a rehabilitative psychologist, and wife herself. Dr. Haber's testimony was based on his review of wife's medical file (which was not entered into the record as evidence) and his interview of wife. Not qualified to give medical opinions, Haber's testimony regarding wife's medical condition is of slight value. Wife's testimony, like all witness testimony, was subject to a credibility determination by the factfinder. See Minn. R. Civ. P. 52.01 ("[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of witnesses."). This court shows great deference to a district court's assessment of a witness's credibility. Sefkow v. Sefkow, 427 N.W.2d 205, 210 (Minn. 1988). Here, the district court discounted wife's portrayal of her medical problems as seriously debilitating. See Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) (district court not required to believe even uncontradicted testimony if there are reasonable grounds to doubt credibility).

Further, evidence regarding wife's psychological state supports the district court's determination. Dr. Haber administered psychological testing, which revealed that wife had "some significant psychological distress." He testified:

The resulting profile does suggest the woman may be moderately depressed. Admits to an above number of physical or somatic concerns that would be consistent with her medical history. Hysteroid tendencies are apparent suggesting that she may not be particularly psychologically minded and may have difficulty identifying the relationship between the emotional concerns of anxiety and depression and the frequency and intensity of her physical symptoms.

Dr. Haber also described her as a "mixed neurotic personality," which means that she was outside of normal limits, although he felt that much of that could be explained by her disquiet over the dissolution and her concomitant health problems.

There is a presumption favoring the award of permanent maintenance when there is uncertainty. Minn. Stat. § 518.552, subd. 3 (1996). However, that 1985 amendment to the statute has been clarified by the supreme court, which stated:

The amendments to the maintenance statute indicate that the legislature has established with unmistakable clarity a presumption in favor of awarding permanent maintenance. But the legislature has also indicated with unmistakable clarity that in awarding permanent maintenance, a district court must consider each of the specific statutory factors set forth in the maintenance statute. The court must determine that there are statutory factors present in order to award permanent maintenance. If the factors are not present to support an award of permanent maintenance, a court which fails to provide a termination date for maintenance payments has abused its discretion.

Gales v. Gales, 553 N.W.2d 416, 419-20 (Minn. 1996). Here, one of the statutory factors is the age and the physical and emotional condition of the party seeking maintenance. Minn. Stat. § 518.552, subd. 2 (f) (1996). The district court made factual findings indicating that wife's health problems were not serious enough to threaten her long-term ability to maintain employment. Because the record does not show these findings to be clearly erroneous, we conclude that the district court did not abuse its discretion in awarding temporary, rather than permanent, maintenance.

II. Joint Legal custody

Wife argues that the district court erred in granting joint legal custody to the parties over her objection at trial. However, the transcript indicates that wife specifically did not object to joint legal custody. In a direct examination of wife, the following exchange took place:

Q. You have no objection to joint legal custody, is that correct?
A. Correct.

A district court has broad discretion to make decisions regarding the custody of the parties' children. Rutten, 347 N.W.2d at 50. This court will not reverse a custody determination unless the district court made findings unsupported by the evidence or improperly applied the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). Because wife not only failed to object at trial, but actually consented to what would become the court's custody determination, we conclude that the district court did not abuse its discretion in granting joint legal custody.

III. Division of Property

Wife argues that the district court erred in its calculations or determinations regarding property issues. This court will not reverse a fact determination unless clearly erroneous, with due regard given to the district court's opportunity to judge the credibility of witnesses. Minn. R. Civ. P. 52.01.

First, wife argues that husband's income was $4,458 per month as opposed to the $3,925 that the district court found. She also argues that this calculation does not count the $3,734 received in tax refunds, which would add to husband's average monthly income. She argues, too, that husband's listing of his monthly expenses is not properly documented, and that his actual expenses were much lower (the district court found that husband had been, through careful spending practices, spending less than he would otherwise).

Wife also argues that the court erred in its valuations of the parties' real property. There were conflicting expert assessments of the value of the properties. A reviewing court does not require that the district court be exact in its valuation of assets, only that the determined value "lies within a reasonable range of figures." Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). The district court's valuations were within the range suggested by the experts.

Wife argues that the district court erred in awarding husband the right to claim all three of the minor children as tax exemptions. She argues that as the custodial parent, she should have the right to claim the minor children as tax exemptions. Wife asserts that she must issue a written waiver of exemption in order to validate husband's claim of exemption. This court has determined that state court allocation of child tax exemption is permissible, as it does not interfere with legislative intent. Fudenberg v. Molstad, 390 N.W.2d 19, 21 (Minn. App. 1986).

Finally, wife asserts that the property was divided so that husband received approximately $12,000 more than wife. Husband, however, argues that because wife withdrew $43,000 from remaining cash assets of the parties, the division of property unfairly awarded wife over $30,000 more than him. A district court has broad discretion in dividing property. Rutten, 347 N.W.2d at 50. Evidence regarding any of the claims of error is inadequate for this court to conclude that the district court's findings were clearly erroneous.

IV. Attorney Fees

The award of attorney fees is within the discretion of the district court. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). A fee award requires finding that the fees are necessary for a good faith assertion of the receiving party's rights; the fees will not unnecessarily add to the length and expense of the proceedings; the paying party has the means to pay; and the receiving party does not have the means to pay. Minn. Stat. § 518.14, subd. 1 (1996). The district court granted wife $4,000 in attorney fees because she

is in need of an award of attorney [fees] and costs herein to assist her in the preparation and presentation of her case. [Husband] is financially capable of contributing to said costs and fees.

Husband argues that the district court abused its discretion in awarding wife attorney fees. We disagree.

Wife moves for the additional award of appellate attorney fees. This court has written:

When attorneys' fees are authorized by statute at the district court level, those fees should not be "diluted" by a failure to award reasonable fees on appeal for time spent defending the judgment.

Franklin v. Western Nat.'l Mut. Ins. Co., 558 N.W.2d 277, 282 (Minn. App. 1997), reversed on other grounds, 574 N.W.2d 405 (Minn. 1998). Wife's appeal was not necessary to defend the judgment. Sanctions may be imposed pursuant to Minn. Stat. § 549.211 (Supp. 1997); here, however, there is neither any evidence of husband's actions that would support sanctions, nor did wife meet the procedural requirements of section 549.211, subd. 4. We decline to award appellate attorney fees.

Affirmed.

(1) The temporary rehabilitative maintenance was set for a period of six years, beginning with $1,200 per month and gradually lowering (first to $900, then to $500) throughout the six years.