In Re the Marriage of: Mary Ann Trewartha, n/k/a Mary Ann Garrity, petitioner, Respondent, vs. Mark Donald Trewartha, Appellant.
Annotate this Casemay not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
C6-99-114
Mary Ann Trewartha, n/k/a Mary Ann Garrity, petitioner,
Respondent,
vs.
Mark Donald Trewartha,
Appellant.
Filed June 1, 1999
Reversed and remanded
Short, Judge
Hennepin County District Court
File No. 205435
Maria K. Pastoor, Pastoor Law Office, Ltd., Suite E-1434, 332 Minnesota Street, St. Paul, MN 55101 (for respondent)
Michele M. Danielson, Clapp & Erickson, Suite 1450, 386 North Wabasha Street, St. Paul, MN 55102 (for appellant)
Considered and decided by Short, Presiding Judge, Peterson, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
SHORT, Judge
On appeal from an order increasing his child support obligation and requiring division of stock, Mark Donald Trewartha argues the trial court abused its discretion by: (1) modifying his child support obligation; (2) modifying the property division agreement; and (3) awarding attorney fees to his former spouse. We reverse and remand.
D E C I S I O N
The award of property and child support rests within the broad discretion of the trial court. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). We will not reverse a property or child support order unless it embodies a clearly erroneous conclusion. Id. But in the absence of findings of fact that reflect the trial court's deliberations, we will reverse and remand for reconsideration and express findings of fact. Moylan v. Moylan, 384 N.W.2d 859, 864-65 (Minn. 1986).
I.
II.
Trewartha also argues the trial court abused its discretion by dividing stock he received from his employer while the parties were legally married. The record demonstrates: (1) Trewartha received between 106 and 141 shares of stock from his employer in 1993 and 1994; (2) the parties were married, but living separately, during 1993 and 1994; (3) the parties' marital termination agreement and original judgment and decree did not address the division of the stock, but awarded retirement funds solely to Trewartha; (4) the record does not reflect whether the stock was part of a retirement package; and (5) the trial court estimated 200 shares were accrued during the marriage, estimated their worth at $7,800, and awarded half to Trewartha's former spouse. Although the trial court has power to divide property omitted from a prior property division, in this case, the trial court made no findings of fact regarding the nature of the stock, whether an equal division comported with the original property division, and apparently miscalculated the division of that property. See Minn. Stat. §§ 518.145, subd. 2 (1998) (permitting reopening of property division for, among other issues, mistake, new evidence, fraud, and misrepresentation); 518.64, subd. 2(e) (1998) (permitting modification of property division under Minn. Stat. § 518.145); Kitchar v. Kitchar, 553 N.W.2d 97, 103 (Minn. App. 1996) (holding trial court did not err by concluding property was "marital" even after couple lived separately while still legally married), review denied (Minn. Oct. 29, 1996). Given these facts and the absence of explanatory findings of fact, we conclude the trial court abused its discretion in ordering an equal division of 200 shares of stock.
III.
Finally, Trewartha argues the trial court abused its discretion in ordering him to pay his former spouse's attorney fees. The record demonstrates the trial court did not make findings of fact regarding the payment of attorney fees and stated only that
Respondent should contribute $1,500.00 toward Petitioner's attorney's fees so that the increased child support to benefit the children is not consumed by these attorney's fees.
See Minn. Stat. § 518.14, subd. 1 (1998) (stating trial court can award attorney fees if fees are necessary for good-faith assertion of payee's rights, payor has means to pay fees, and payee does not have means to pay fees); Courey v. Courey, 524 N.W.2d 469, 473 (Minn. App. 1994) (holding trial court abused its discretion in awarding attorney fees without making specific findings that children's father had ability to pay or mother was unable to pay). We conclude the trial court abused its discretion in ordering Trewartha to pay his former spouse's attorney fees.
We reverse and remand for proceedings consistent with this opinion. Because of our disposition of these issues, we deny the former spouse's motion for attorney fees incurred on appeal.
Reversed and remanded.
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