In re the Marriage of: Lisa Marie Roering, petitioner, Respondent, vs. Russell James Roering, Appellant.

In re the Marriage of: Lisa Marie Roering, petitioner, Respondent, vs. Russell James Roering, Appellant. A05-74, Court of Appeals Unpublished, January 24, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-74

 

In re the Marriage of:

Lisa Marie Roering, petitioner,
Respondent,
 
vs.
 
Russell James Roering,
Appellant.

 

Filed January 24, 2006

Affirmed; motion denied

Toussaint, Chief Judge

 

Washington County District Court

File No. F4-02-2192

 

 

Judith M. Rush, 2589C Hamline Avenue North, Roseville, MN 55113 (for respondent)

 

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

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Worke, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

            In this dissolution matter, appellant argues that the trial court erred in determining parenting time, valuing property, determining whether property was marital or nonmarital, distributing property, awarding maintenance, and awarding attorney fees.   Because we see no abuse of discretion or erroneous application of the law, we affirm.  Respondent moves to strike three items from appellant's brief; because the record includes documentary or testamentary evidence as to those items, we deny the motion.

FACTS

            Appellant Russell James Roering and respondent Lisa Marie Roering are the parents of two children, K.R., 16, and S.R., 14.  The parties' marriage was dissolved by judgment  entered in May 2004; respondent received custody of the children. 

            Respondent moved to suspend appellant's parenting time in June 2004.  Appellant moved for amended findings and a new trial in July 2004.  Respondent brought an "emergency" motion to amend the judgment and decree in July 2004 after she experienced difficulty selling the parties' home. 

After a hearing, the district court amended the judgment and decree to prohibit appellant from interfering with the sale of the home, granted respondent attorney fees incurred in bringing her "emergency" motion, denied appellant's motion for a new trial and his request for amended findings, and granted in part respondent's requests for amended findings.  This appeal followed. 

D E C I S I O N

1.  Parenting Time

            The district court has broad discretion over parenting time and its decision will not be reversed absent an abuse of discretion.  Matson v. Matson, 638 N.W.2d 462, 465 (Minn. App. 2002). Appellant argues that the district court abused its discretion in establishing his parenting time.

Minn. Stat. § 518.175, subd. 1(a) (2004) provides that a court shall "grant such parenting time on behalf of the child and a parent as will enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child."  (Emphasis added.)  Minn. Stat. § 518.17, subd. 1(a) (2004), entitled "Custody and support of children on judgment," defines "[t]he best interests of the child" as "all relevant factors to be considered and evaluated by the court," and lists thirteen factors to be included.

            Here, the district court considered the recommendation of a parenting time evaluator who testified that she did not specifically analyze the statutory factors but instead focused on three issues: domestic abuse, mental health, and respondent's alleged parental interference.  The district court also interviewed the children and noted their desire for more time with appellant.  The preferences of the children should be considered in parenting time decisions, but their preferences are not determinative.  Barrett v. Barrett, 394 N.W.2d 274, 279 (Minn. App. 1986); see also Imdieke v. Imdieke, 411 N.W.2d 241, 242 (Minn. App. 1987) (holding that the preferences of the children should be considered in custody decisions but are not determinative), review denied (Minn. Oct. 30, 1987).  Thus, the district court did not abuse its discretion in its consideration of the best interests of the children and the children's preferences. 

            Appellant claims that the parenting time evaluator's report was biased because she relied on inaccurate mental health diagnoses. But the evaluator noted the conflicting reports about appellant's mental health and ultimately concluded that neither parent had a mental health issue related to the children's physical or emotional well-being.  Appellant also claims that the report is biased because the evaluator did not question the children about alleged domestic abuse.  But the evaluator did not want to bring the children into the conflict by interviewing them and noted that their statements would not be helpful in assessing domestic abuse between the parties.  Appellant finally claims that the report is biased because it is based on a finding of domestic abuse accompanied by a statement showing possible bias by the district court judge.  Appellant did not challenge the district court's finding and the parenting time evaluator was not aware of the statement.  Therefore, appellant's challenges to the parenting time evaluator's report are unfounded. 

Appellant claims the district court's reliance on the evaluator's report was an abuse of discretion because the evaluator destroyed her notes in violation of Minn. Stat. § 518.167, subd. 3 (2004), providing that an evaluator shall maintain and make available a file of "underlying data and reports, complete texts of diagnostic reports made to the investigator . . . and the names and addresses of all persons whom the investigator has consulted." (Emphasis added).  But the statute refers to "data and reports," not to notes, and the evaluator testified that notes are generally destroyed after the report is prepared. The district court's reliance on the evaluator's report, despite her destruction of her notes, was not an abuse of discretion.   

            Appellant finally claims that the district court's parenting time order was an abuse of discretion because the district court did not follow appellant's conditions on his waiver of the right conferred by Minn. Stat. § 518.166 (2004) to have his attorney present at the interview.  A determination based on a violation of this statute will be reversed only if the error is prejudicial.  See Nixon v. Nixon, 410 N.W.2d 417, 419-20 (Minn. App. 1987) (affirming custody determination despite violation of section 518.166 because sufficient evidence other than children's preferences expressed in interview supported determination).

            Appellant waived his right to have his attorney present at the interview if the court agreed to ask the children specific questions.  The district court asked some of the questions, but omitted four of them.  None of the questions omitted was relevant to the statute's stated purpose of ascertaining the children's preference, so even if appellant's attorney had been present at the interview, those questions would not have been asked.  Moreover, the district court clearly understood from the interview that the children wished to spend more time with appellant.  Even if the district court had violated section 518.166, the violation would not have been reversible error. 

The district court's determination of parenting time was not an abuse of discretion. 

2.         Valuation of the 4-plex

            A district court's valuation of an item of property is a finding of fact and will not be set aside unless it is clearly erroneous.  Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn. 2001).  The valuation need not be exact, but must fall within a reasonable range.  Id.; see also Ferguson v. Ferguson, 357 N.W.2d 104, 107 (Minn. App. 1984) (affirming district court valuation of property based on owner's valuation but not requiring district court to adopt property's owner's valuation). 

            Appellant claims the district court's valuation of appellant's 4-plex is erroneous because the district court did not adopt appellant's valuation.  The district court concluded that, because appellant did not have an appraisal done on the property and because the property lost value over the 14 years appellant owned it, "[t]he actual purchase and sale prices of the property are more reliable evidence of the value of the 4-plex in 1986 than [appellant]'s claim."  Appellant does not argue that the value assigned by the district court was outside the range of reasonable values.  The district court's valuation was not clearly erroneous.

3.         Nonmarital share in the 12-plex

              The determination of whether property is marital or nonmarital is a question of law, but this court defers to the district court on the underlying questions of facts.  Senske v. Senske, 644 N.W.2d 838, 840 (Minn. App. 2002).  Appellant argues that the district court incorrectly determined his nonmarital contribution to the parties' 12-plex by basing the calculation on the value of the 12-plex in 2002, when the proceeds from the sale of appellant's nonmarital 4-plex were used to pay down the mortgage on the 12-plex, instead of on the value in 1998, when the 4-plex was used as collateral in the parties' purchase of the 12-plex.

            "The present value of a nonmarital asset used in the acquisition of marital property is the proportion the net equity or contribution at the time of acquisition bore to the value of the property at the time of purchase multiplied by the value of the property at the time of separation." Brown v. Brown, 316 N.W.2d 552, 553 (Minn. 1982); see also Antone v. Antone, 645 N.W.2d 96, 103 (Minn. 2002) (remanding to district court to apply formula); Schmitz v. Schmitz, 309 N.W.2d 748, 749-50 (Minn. 1981) (applying formula to property purchased after a marriage in part with nonmarital funds).  Appellant does not provide any authority for applying the formula as he suggests.  The district court did not err in basing its calculation of appellant's nonmarital share in the 12-plex by valuing the 12-plex at the time appellant's nonmarital funds were actually paid out for its purchase.

4.         Unisys retirement account

            Whether property is marital or nonmarital is a question of law, but this court defers to the district court on underlying fact questions.  Senske, 644 N.W.2d at 840.  "To overcome the presumption that property is marital, a party must demonstrate by a preponderance of the evidence that the property is nonmarital."  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).  In order for nonmarital property to remain nonmarital, it must be kept separately from marital property or be readily traceable.  Id.   

            Appellant argues that the district court erred by not including his premarital contributions to a Unisys retirement plan in his nonmarital property.  Appellant testified that he made several premarital contributions to a 401(k) plan and offered an exhibit of W-2 forms showing "pre-tax" deductions. The district court apparently determined that appellant did not provide sufficient evidence to meet his burden of showing that the contributions were kept separately from the marital portion of the retirement account.  The district court's decision is supported by the record and was not error.

5.         Temporary maintenance

Findings of fact concerning spousal maintenance are upheld unless this court finds them to be clearly erroneous.  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).  The parties stipulated to a waiver of spousal maintenance.  The district court interpreted this to refer only to permanent spousal maintenance and found that respondent required temporary maintenance until she was able to sell the parties' homestead.  Appellant challenges this award, arguing that, because the parties stipulated to waive maintenance, the district court lacked jurisdiction to award temporary maintenance. But, at the time of the stipulation, respondent was receiving temporary spousal maintenance; the district court merely ordered that it continue until respondent was able to sell the homestead.  The stipulation did not specify that the parties waived temporary spousal maintenance. Thus, the district court's finding that temporary maintenance was not part of the stipulation was not clearly erroneous. 

            Appellant further argues that the district court erred by not making the findings required to divest a court of jurisdiction over maintenance under Minn. Stat. § 518.552, subd. 5 (2004).  That provision applies to agreements to "preclude or limit modification of maintenance."  Id.  Here, the stipulation did not refer to the modification of maintenance, but instead waived permanent maintenance altogether.  Minn. Stat. § 518.552, subd. 5, does not apply.

6.         Attorney fees

            This court reviews a district court's decision to vacate a dissolution judgment for abuse of discretion.  Toughill v. Toughill, 609 N.W.2d 634, 639 (Minn. App. 2000).  A stipulation will be upheld unless it was "improvidently made and in equity and good conscience ought not to stand."  Id.(citation omitted).  Fraud, duress, and mistake are all bases for a finding that the stipulation was improvidently made.  Id. 

            Appellant argues that, because the parties had stipulated to paying their own attorney fees, the district court erred in awarding respondent $1,900 in legal fees after finding that "[appellant] and his attorney unreasonably contributed to the length of the trial. . . ."  Because appellant's conduct changed the circumstances under which the stipulation was reached, vacating the stipulation to award respondent partial attorney fees was not an abuse of discretion.

            Moreover, under Minn. Stat. § 518.14, subd. 1 (2004), the district court has the discretion to award attorney fees against a party "who unreasonably contributes to the length or expense of the proceeding."  See Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001).  Appellant also argues that the award itself was an abuse of discretion.  But the record supports the award and the district court's findings that appellant unreasonably contributed to the length of the trial when he engaged in repetitive cross-examination, maintained unreasonable legal positions, and informed respondent at the beginning of trial that he intended to sell the 12-plex.  The award of attorney fees was not an abuse of discretion. 

7.         3M Stock

            Whether property is marital or nonmarital is a question of law, but this court defers to the district court on underlying fact questions.  Senske, 644 N.W.2d at 840.  Appellant argues that the 3M stock was marital property and that he should have been awarded half the proceeds from its sale. 

But the district court found that respondent sold some 3M stock to pay for living expenses and to repay her father for a loan given to her to pay living expenses and that, therefore, the sale was not a dissipation of a marital asset.  The district court's conclusion that appellant was not entitled to half the proceeds from the sale was not erroneous.  Cf. Minn. Stat. § 518.58, subd. 1a (2004) (noting party not liable for assets disposed of in usual course of business or for necessities of life).

8.         Posttrial attorney fees

            An award of conduct-based attorney fees under Minn. Stat. § 518.14, subd. 1, is left "almost entirely within the discretion of the trial court."  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  Appellant argues that the district court improperly awarded attorney fees to respondent on her posttrial motion because his conduct prompting the motion was not in bad faith. 

            Appellant contacted various parties to discourage them from going through with the sale of the home.  The district court concluded that appellant unreasonably refused to cooperate in the sale of his home.  The attorney fee award was not an abuse of discretion.[1]

9.         Motion to strike

              This court may not consider matters outside the record on appeal and must strike references to such matters from the parties' briefs.  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff'd 504 N.W.2d 758 (Minn. 1993).  The record on appeal consists of the "papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any."  Minn. R. Civ. App. P. 110.01.

            Respondent moves to strike three items: references to the judge's statements that he could determine appellant's guilt for purposes of the order for protection by looking at him, references to the original parenting time evaluator's removal from the case based on improper language and conduct, and appellant's summaries of the trial.  Because the record includes documentary or testamentary evidence of each item, respondent's motion is denied. 

            Affirmed; motion denied.

[1] Respondent's challenge to the timeliness of the appeal of this issue is without merit.   See Minn. R. Civ. App. P. 104.01, subd. 3, (notice of appeal filed before the disposition of a motion to amend findings is premature).