Mary Jo Kathleen Gerring, petitioner, Respondent, vs. Steven Matthew Gerring, Appellant.

Mary Jo Kathleen Gerring, petitioner, Respondent, vs. Steven Matthew Gerring, Appellant. A04-522, Court of Appeals Unpublished, January 11, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-522

 

 

Mary Jo Kathleen Gerring, petitioner,

Respondent,

 

vs.

 

Steven Matthew Gerring,

Appellant.

 

 

Filed January 11, 2005

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. DC 267709

   

Michael Ormond, Ormond & Zewiske, 510 First Avenue North, Suite 303, Minneapolis, MN 55403 (for respondent)

 

John F. Bonner, III, Patrick G. Leach, Bonner & Borhart, LLP, 1750 Pillsbury Center, 220 South Sixth Street, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Schumacher, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

            In this marriage dissolution proceeding, appellant Steven Gerring challenges the referee's decision, approved by the district court, requiring him to pay respondent Mary Jo Gerring permanent spousal maintenance of $2,500 per month.  The district court also decreed the parties' Minnetonka house to be sold, with the proceeds to be split equally, and awarded each party ten shares of stock in Gerring Properties, a family-owned business, holding that absent an agreement to allocate all other marital property, the stock must be sold with the proceeds to be split equally.  The court further determined that Gerring Properties owned both Quality Car Wash Operations, Ltd. (Quality) and DRG Enterprises, Ltd., which operate car washes in Wayzata and Eden Prairie, respectively.  Finally, the court awarded respondent $30,000 in attorney fees.  Appellant subsequently moved for new trial and/or amended findings of fact, which was denied by the district court.  Because we conclude that the district court did not abuse its discretion when determining the property award, we affirm.   

D E C I S I O N I.

Spousal Maintenance

Appellant argues the district court erred by awarding respondent $2,500 per month in permanent spousal maintenance.  Appellate courts review a court's maintenance award under an abuse-of-discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  A court abuses discretion regarding maintenance if the findings of fact are unsupported by the record or if the court improperly applies the law.  Id. n.3 (citing Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)).  "Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous."  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992). 

Under Minnesota law, spousal maintenance may be awarded if a spouse lacks sufficient property to provide for reasonable needs or is incapable of self-support through appropriate employment.  Minn. Stat. § 518.552, subd. 1 (2002).  The factors to be considered when awarding maintenance include, among other things: (1) the financial resources of the party seeking maintenance; (2) the time necessary to acquire sufficient education and training and the probability that the party seeking maintenance will become self-supporting; (3) the standard of living established during the marriage; (4) the extent to which any employment experience has become outmoded; (5) the age and physical and emotional condition of the spouse seeking maintenance; and (6) the ability of the payor spouse to contribute maintenance payments.  Id. subd. 2 (2002).  "Findings are not required on each factor considered."  Justis v. Justis, 384 N.W.2d 885, 891 (Minn. App. 1986), review denied (Minn. May 29, 1986).  Finally, "[w]here there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for later modification."  Minn. Stat. § 518.552, subd. 3 (2002).   

In the findings of fact, the district court properly considered all of the statutory factors when determining the maintenance issue.  The court found that respondent's only sources of income are her limited earnings and temporary spousal maintenance.  The court added that it is doubtful, even after additional education and training, that respondent will ever earn $52,000 per year, which was her most recent salary as a Quality employee.  The court also found that after 25 years working as a bookkeeper for Quality, respondent does not have an impressive resume that would allow her to gain adequate employment.  Respondent is in fair physical and mental condition, but at the time of the court's decision, was in alcohol treatment and suffered from depression.[1]  Additionally, the court found that appellant continues to work at Quality, continues to draw a steady income of $6,500 per month, and continues to control the marital assets, such as possession of the parties' lake home. 

The district court made detailed factual findings on the standard of living factor, and they are not clearly erroneous.  According to the district court, "[T]he parties enjoyed a very comfortable standard of living during the marriage as a result of their incomes and benefits they received from the family business[.]"  For example, Quality paid for appellant's truck and motorcycle, car insurance, and gasoline.  Respondent also presented evidence and testified that cashas much as $6,000 in a weekwas withdrawn from the daily operations of the car wash and split between appellant and his brothers.  According to respondent's testimony, she would notify appellant whenever extra cash was needed to meet family expenses, and appellant would give her cash to deposit in a checking account.  Respondent testified that she became accustomed to receiving the extra cash on a regular basis, but has not been provided with cash since she separated from appellant.  Appellant testified that respondent was taking the cash to fund her Beanie Baby collection, but the district court found respondent's testimony, which was backed up by receipts showing each month's cash withdrawals, to be credible and supported by the record. 

Appellant argues that respondent's ability to earn future income militates against the district court's award of permanent spousal maintenance.  Appellant bases this claim on an employability evaluation performed on respondent by Jan Lowe, a certified rehabilitation counselor.  Lowe found that respondent could return to work in a skilled office job after six to twelve months training in computer usage skills and that she could earn an annual income between $23,000 and $34,000, which could increase to as much as $42,000 with four years experience. 

In a case very similar to the one at bar, the Minnesota Supreme Court awarded a spouse, who was the periodic bookkeeper of the family business, permanent spousal maintenance, leaving the award open for later modification by the district court.  Nardini v. Nardini, 414 N.W.2d 184, 186, 199 (Minn. 1987).  Marguerite Nardini occasionally worked for the family business and maintained the home, but upon divorce, Ralph Nardini continued receiving a salary and the use of a vehicle from the business.  Id. at 198.  According to the supreme court:

At the same time, however, that Ralph's career is left intact and basically undisturbed, the distribution alters the course of Marguerite's life.  While Ralph continues his gainful employment, Marguerite is deprived of any interest in the ongoing business which has until now been the focus of her efforts and the source of her income as well as of Ralph's . . ..

 

Id.  Additionally, the supreme court noted that an award of temporary spousal maintenance is predicated upon the assumption that the party receiving maintenance will become self-supporting in the future.  Id.  State law and prior cases before this court support the notion that if a court is uncertain as to a spouse's future earning potential, then it must award permanent maintenance.  Minn. Stat. § 518.552, subd. 3; Duffey v. Duffey, 416 N.W.2d 830, 833 (Minn. App. 1987), review denied (Minn. Feb. 24, 1988); Musielewicz v. Musielewicz, 400 N.W.2d 100, 104 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987). 

In this case, if respondent earns enough income in the future to make spousal maintenance unnecessary, or if appellant encounters severe financial difficulty such that it is impossible to maintain the maintenance award, the award may be modified by the district court.  Minn. Stat. § 518.64, subd. 2 (2002).  Respondent presented evidence that her expenses are $3,310 per monthexclusive of credit card and personal loan paymentsand the district court found the evidence to be credible.  Appellant presented evidence that his expenses are $4,450 per month, which the district court did not find credible, because of the inclusion of employer-covered vehicle expenditures and an inflated food budget.  "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."  Minn. R. Civ. P. 52.01. 

Appellant next argues that respondent's marital property award increases her income and makes a permanent maintenance award superfluous based on Minn. Stat. § 518.552, subd. 2(a).  Specifically, appellant contends that the district court's failure to value Gerring Properties and failure to take into account the sale proceeds from the Minnetonka home warrant remand.  But it was appellant that refused to pay for a valuation of Gerring Properties.  Similarly, appellant failed to sign a listing agreement that would have put the parties' Minnetonka home up for sale. Based on this record and appellant's failure to address the business valuation and homestead sale, the court did not err in awarding respondent permanent maintenance.  

After considering all of the factors listed in Minn. Stat. § 518.552, subd. 2, which included the parties' comfortable standard of living, extra benefits from the family business, the parties' reasonable budgets and expenses, and the relevancy of the business's stock and the family home, it was not an abuse of discretion for the district court to award respondent permanent spousal maintenance in the amount of $2,500 per month.  

II.

Distribution of Sale Proceeds from Minnetonka Home

Appellant next contends that the district court did not specifically apportion the proceeds from the future sale of the parties' Minnetonka home, and that the issue should be remanded so the court can divide the proceeds equally to each party.  In the conclusions of law, the district court held that the Minnetonka home must be placed on the housing market, with the sale proceeds allocated to (1) the expenses derived from necessary repairs to the house; and (2) payment of the outstanding mortgage, taxes, and insurance.  While it is true that the court did not specifically state who would collect the remaining proceeds, any lack of completeness does not warrant a remand.  Respondent points out that the court repeatedly stated that the parties would split marital assetssuch as personal property and recreational vehiclesequally.  Additionally, at oral argument the parties agreed that remand is unnecessary if the district court merely committed a clerical error. 

III.

Corporate Relationship Between Quality and Gerring Properties

Appellant next argues that there was no evidence in the record for the district court to find that Gerring Properties owns Quality.  At trial, respondent testified that the entities "are one and the same" while appellant testified that Gerring Properties only owns the "land, building and equipment" comprising Quality.  Appellant's sister-in-law, who became the business's bookkeeper once the dissolution action began, testified that Quality only pays rent to Gerring Properties. 

If the district court made an error in its categorization of the business entities, it is irrelevant to this appeal.  Neither party claimed an ownership interest in Quality.  Instead, the court awarded ten shares of unvalued Gerring Properties stock to each party.  A determination that Gerring Properties does or does not own Quality may affect the stock's value, which may, in turn, affect respondent's property award, but the price of the stock is as of yet unknown.  Therefore, a decision by this court reversing the district court's factual finding would not affect a salient issue in this case.  See State v. Colsch, 284 N.W.2d 839, 842 (Minn. 1979) ("[I]ssues which have no existence other than in the realm of future possibility are purely hypothetical and are not justiciable.  Neither the ripe nor the ripening seeds of controversy are present." (quotation omitted)).    

IV.

Attorney Fees

Finally, appellant argues the district court abused its discretion when it awarded $30,000 in attorney fees to respondent.  An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2002) "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion."  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).  A lack of specific findings on the statutory factors will not doom the award as long as the court "was familiar with the history of [the] case" and "had access to the parties' financial records[.]"  Gully v. Gully, 599 N.W.2d 814, 826 (Minn. 1999).   

Minn. Stat. § 518.14, subd. 1, is the statutory framework for need-based and conduct-based attorney fees.  For example, a district court may award conduct-based attorney fees "against a party who unreasonably contributes to the length or expense of the proceeding."  Id.  The district court specifically found that both parties had acted in bad faith during the proceeding, but "if placed on a scale, [appellant's] behavior has been more uncooperative than [respondent's]."  As already noted, appellant refused to pay for a valuation of Gerring Properties.  The court stated that a valuation would have determined how much each party's share in the company was worth; because no valuation was done for trial, this issue may need to be litigated in a subsequent proceeding. 

Appellant contends the district court did not make a specific finding as to the grounds for attorney fees.  But specific findings are not required if the court had an intimate knowledge of the case and the parties' financial positions.  Gully, 599 N.W.2d at 825-26.  The district court has been involved with this case since 2001.  The court made detailed factual findings on the parties' financial statuses, specifically finding that "[respondent] has no access to liquid resources" and that her income potential was far below that which would be necessary to maintain the standard of living established during the marriage.  The court also noted that appellant continues to have access to the resources of the family business, which includes his salary, benefits, and any cash withdrawals.  Finally, the court found that appellant acted in bad faith by not valuing Gerring Properties.  Respondent alleged that she had $93,000 in attorney fees, and the court awarded her less than one-third of that total.  Based on the record, the award of attorney fees was within the district court's considerable discretion.               

            Affirmed.

[1] Appellant points out that depression, by itself, is not a ground for an award of permanent maintenance.  See Gales v. Gales, 553 N.W.2d 416, 422 (Minn. 1996) ("[T]he purpose of the maintenance statute is not to award permanent maintenance to every aggrieved spouse who suffers.").  The district court, however, based its permanent maintenance award on a number of factors over and above respondent's mental condition.