Dawn M. Blomgren, petitioner, Respondent, vs. Daniel J. Kraemer, Appellant.

Dawn M. Blomgren, petitioner, Respondent, vs. Daniel J. Kraemer, Appellant. A05-938, Court of Appeals Unpublished, May 30, 2006.

This opinion will be unpublished and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

A05-938   

 

 

Dawn M. Blomgren, petitioner, Respondent,   Vs.   Daniel J. Kraemer, Appellant.   Filed May 30, 2006

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. DW-291562

 

 

Mitchell J. Ask, 3407 Kilmer Lane North, Plymouth, MN 55441 (for respondent)

 

David T. Redburn, 8525 Edinbrook Crossing, Suite 207, Brooklyn Park, MN 55443 (for appellant).

 

            Considered and decided by Minge, Judge, Presiding Judge; Randall, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

 

RANDALL, Judge

In this dissolution appeal, appellant-husband argues that (a) given the disparity in the parties' income and the length of their marriage, the district court should have awarded husband permanent spousal maintenance; (b) the district court should have awarded husband a greater share of wife's 401(k) account.  We affirm on both issues.

FACTS

            Appellant Daniel Kraemer and respondent Dawn Blomgren were married approximately 19 years ago.  They separated in May 2004.  The parties had no children together. 

Appellant worked as an x-ray technician at the beginning of the marriage and later obtained training to be an auto mechanic.  During the marriage, appellant held at least three jobs as an auto mechanic.  At the time of separation, appellant had been unemployed for approximately three years after being fired by his last employer.  Appellant was offered a job during his three years of unemployment but declined the job offer.  A vocational evaluation performed prior to trial determined that appellant is capable of earning approximately $36,000 yearly.  No objection to this vocational evaluation was raised by appellant.  Appellant testified that he hopes to return to school to obtain further education that will allow him to work as a surveyor or radiological technician.  He agrees he has done little research into the costs or requirements for these educational programs. 

Throughout the marriage, respondent worked as a physician and as a medical director, earning a gross monthly income of $11,612 from which $1,333 was deducted as
a contribution to the 401(k) plan disputed herein.  During the marriage, respondent was the primary contributor to the 401(k) account valued at $813,883, which is at dispute in this matter.  During the marriage, respondent was the primary wager earner.  There is no evidence that appellant ever chose to forego any employment in order to benefit the marriage relationship. 

            Average monthly living expenses for the parties were approximately $7,000 during the marriage.  The parties took numerous vacations each year, together and separately.  The average monthly expenses included significant amounts for personal indulgences.  According to the record, respondent made all payments on the home mortgage, car loans and credit card debts throughout the marriage.  Respondent also paid approximately $2,000 per month toward a credit card that appellant used for everyday purchases and expenses.  During the periods of the marriage when appellant worked, a significant majority of appellant's income went toward his own hunting, fishing, and other personal hobbies. 

Respondent testified that her average monthly living expenses (living alone) would be approximately $6,000.  Appellant testified his average monthly living expenses would be approximately $3,631.  The district court specifically found that appellant's "necessary reasonable monthly expenses [were] approximately $2,500 - $2,800."  Appellant testified that his utility costs were included in the amount he paid for rent.  Although appellant entered into a residential lease with his sister requiring a $1,400 monthly rental fee, the district court found that he "appears to be living rent free."  In the nine months prior to the trial, appellant paid a total of $2,000 toward nine months of rent. 

The district court relied on appellant's vocational evaluation to find that he did not need further education or training to earn more than $36,000 and noted that "[t]he probability that the [appellant] will complete any education or training is very low." 

At the start of the dissolution proceedings, the district court ordered respondent to make spousal maintenance payments of $2,000 per month to allow appellant to get back on his feet and obtain employment.  These payments ended in September 2004.  Prior to the February 1, 2004 hearing before the district court, appellant failed to apply for any full-time or part-time employment positions.  Appellant incurred approximately $9,600 in back rent and roughly $10,000 in credit card debt due to his failure to obtain income producing employment during this time. 

The parties agreed on a settlement agreement that included all marital property except respondent's 401(k) account.  According to the terms of the agreement, appellant received $328,000 from the sale of the marital home, a 2002 Chevrolet Silverado (unencumbered), a 1998 Targa Tracker Boat (unencumbered), a 2001 Artic Cat ATV (unencumbered), a Honda 9.9 four-stroke engine, hunting and fishing equipment, a hunting dog, and all bank accounts, Fidelity Roth IRA accounts, and insurance policies in his name.  Respondent received approximately $224,765 from the sale of the marital home, a 2004 Toyota Corolla (unencumbered), automotive tools and chest, as well as bank accounts, Fidelity Roth IRA accounts, and insurance policies in her name (there was only one dog). 

The district court found that appellant was able to provide for his reasonable needs.  In support of this decision, the district court noted appellant's ability to earn approximately $3,000 a month, if he worked, and the court noted the significant assets provided to him in the partial marital termination agreement (MTA). 

Then, the district court determined that a just and equitable distribution of respondent's 401(k) account would be approximately 46%/$375,000 to appellant.  The district court noted that respondent had less time to work before retirement, that respondent was the sole contributor to this account, and appellant has the ability to supplement his lifestyle through further employment. 

D E C I S I O N

I.

Appellant argues the district court abused its discretion by failing to award him either temporary or permanent spousal maintenance.  To supportan order of spousal maintenance, Minn. Stat. § 518.552, subd. 1 (2004), requires the district court to find that appellant lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, considering the standard of living established during the marriage, especially, but not limited to, a period of training or education or
that appellant "is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment . . . ."  Without discussing Minn. Stat. § 518.552, subd. 1, appellant argues that the district court's refusal to award spousal maintenance was erroneous and should be overturned. 

A.  Minn. Stat. 518.552, Subd. 1 -- The need for spousal maintenance

Appellant's argument assumes that the district court lacked adequate support in the record to decide that he possessed sufficient resources to provide for his reasonable needs.  The district court specifically found that appellant failed to demonstrate a need for spousal maintenance.  When examining the financial resources of appellant, the district court noted the approximately $775,000 in cash and resources appellant will receive through the MTA, including the distribution of respondent's 401(k).  The district court noted appellant's ability to earn approximately $36,000 per year in his chosen profession.  The district court's decision that spousal maintenance was not warranted was based on appellant's financial resources and his ability to provide for his own support. 

B.         Minn. Stat. § 518.552, Subd. 2 (2004) -- The amount and duration of spousal maintenance

 

Minn. Stat. § 518.552, subd. 2 (2004) instructs the district court on factors to consider in determining the amount and duration of maintenance.  The district court must consider the financial resources of appellant to provide for his needs independently,
whether appellant needs additional education to find appropriate employment, his age and health, the standard of living established during the marriage, the length of the marriage, the contribution and economic sacrifices of a homemaker, and the resources of respondent.  Id.    

In considering whether appellant had financial resources to independently meet his needs, the district court found that in addition to his ability to find gainful employment, the nearly $400,000 cash award would put him in a position to pay his living expenses.  The district court found that although appellant claimed that he owes his sister approximately $9,000 for back rent, it was likely that he would not be required to pay this amount.  At one point appellant testified that he was staying at his sisters place "to do her a favor" so that others would not vandalize the house.  When he did have the money to pay the rent owed, he did not. 

Time necessary to acquire sufficient education or training was expressly rejected as a consideration for spousal maintenance by the district court.  While appellant repeatedly expressed interest in obtaining further education to assist in finding another profession, upon questioning, he expressed little direct knowledge regarding the requirements for schooling, the costs of additional schooling, or other factors associated with further education.   The district court concluded from this failure to exhibit knowledge about education opportunities that there was a low probability that appellant would obtain advanced training. 

When deciding to award spousal maintenance, the standard of living established during the marriage is a factor to be considered.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 410 (Minn. App. 2000).  Monthly expenses for the parties during their marriage were approximately $7,000.  In her estimated monthly expenses, respondent concluded that her expenses would be $6,000.  Appellant estimated his monthly expenses to be $3,631, about sixty percent of respondent's estimated expenses.  The district court excluded from his expenses appellant's credit card payments, which where incurred after the separation, and reduced his food, utilities (which he testified are included in his rent), and travel expenses.  In Chamberlain, the court recognized that a district court's dismissal of unreasonable spending claims by the party seeking spousal maintenance is proper.  615 N.W.2d at 412.    

Respondent worked substantially more than 40 hours a week, enabling appellant to travel, hunt, and fish at his leisure.  Appellant testified that he used any income he earned on his hobbies and that respondent's income paid all obligatory bills and any of his additional travel and hobby expenses.  Appellant conceded it would be unfair to require respondent to work excess hours after the dissolution to support his hobbies.  It appears the district court concluded that, minus his extravagant hobby excursions, appellant can support himself without the aid of maintenance.  We cannot differ with the district court.        

After examining the factors described within Minn. Stat. § 518.552, subd. 2, we conclude the district court did not abuse its discretion when it refused to award appellant spousal maintenance.    

C.        Minn. Stat. § 518.552, subd. 3 (2004) -- Permanent maintenance should be preferred over temporary maintenance

 

Appellant argues that the district court should have awarded permanent maintenance because his ability to be self-supporting is uncertain.  Appellant relies on   Minn. Stat. § 518.522, subd. 3, which states:

Nothing in this section shall be construed to favor a temporary award of maintenance over a permanent award, where the factors under subdivision 2 justify a permanent award.

 

Where 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.

 

Consideration of permanent maintenance under subdivision 3 is not warranted here because the district court was not uncertain about maintenance.  The district court found that maintenance was not warranted.  

The district court must only decide a question regarding subdivision 3 "[w]here there is some uncertainty as to the necessity of a permanent award."  Id. (emphasis added).  The district court's decision that no spousal maintenance was necessary renders subdivision 3 irrelevant. 

II.

 

The district court must make a "just and equitable" division of marital property of the parties.  Minn. Stat. § 518.58, subd. 1 (2004).  Relevant factors for the district court's consideration include the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party.  Id.  The district court shall also consider the contribution of each in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker.  Id.    

Appellant argues that the district court's award of 46 percent rather than 50 percent of respondent's 401(k) account was an abuse of its discretion.  Respondent correctly notes that the district court possesses broad discretion regarding the division of property in marriage dissolution proceedings and deference is granted to the district court when its decision has an acceptable basis in fact and principle.  Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984) (citing Senglaub v. Senglaub, 302 Minn. 547, 548, 224 N.W.2d 514, 515-516 (1974).  Caselaw is clear, and appellant concedes, that the division of marital property need only be "fair and equitable."  Fair and equitable depends on the totality of the assets of the marriage, and the respective needs of both parties.  While an equal split is not uncommon, there is no caselaw, and none is claimed, that "equitable" mandates an equal split.

The district court determined that the award of $375,000 of respondent's 401(k) account was just and equitable to both parties after considering the shorter period of time respondent has left before retirement, the contributions made to the 401(k) account, appellant's employability, and its conclusion that some of the factors supported each party.  The district court found that the overwhelming amount of contributions to the 401(k) by respondent was an important factor in its decision on the split.

We conclude the district court did not abuse its discretion when it awarded appellant $31,941 less than respondent from respondent's $813,883 plus 401(k). 

Affirmed.