In re the Marriage of: Lisa Kay Liveringhouse, petitioner, Respondent, vs. Mark Lyle Liveringhouse, Appellant.

In re the Marriage of: Lisa Kay Liveringhouse, petitioner, Respondent, vs. Mark Lyle Liveringhouse, Appellant. A05-2531, Court of Appeals Unpublished, December 5, 2006.

This opinion will be unpublished and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

A05-2531

 

In re the Marriage of:

Lisa Kay Liveringhouse, petitioner,

Respondent,

 

vs.

 

Mark Lyle Liveringhouse,

Appellant.

 

Filed December 5, 2006

Affirmed as modified Willis, Judge

 

Hennepin County District Court

File No. DC 286320

 

 

James V. Gerharter, 3109 Hennepin Avenue South, Minneapolis, MN  55408 (for respondent)

 

Mark Lyle Liveringhouse, 3638 Central Avenue Northeast, Minneapolis, MN  55418 (pro se appellant)

 

            Considered and decided by Ross, Presiding Judge; Willis, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Pro se appellant argues that the district court (1) miscalculated his income for child-support purposes by understating his allowable deductions and clearly erred in calculating his share of childcare costs; (2) abused its discretion by awarding permanent spousal maintenance to respondent because it based its finding of his expenses on the wrong exhibit and failed to account for his support obligation from another relationship; (3) exceeded its authority by requiring him to secure his obligations with life insurance and failed to make findings supporting the insurance requirement; (4) erred by determining that certain payments from his mother were gifts to the parties; and (5) abused its discretion by awarding need-based attorney fees to respondent without evidence of need and with insufficient findings to support the award.  Because the record does not establish that the district court abused its discretion in the determination of the child-support, maintenance, life-insurance, and gift issues, or by awarding attorney fees; and because the finding of appellant's income based on the wrong exhibit did not prejudice appellant; we affirm.  We modify the judgment, however, to reflect a corrected calculation of childcare-cost apportionment.

FACTS

 

             The district court issued a judgment after trial dissolving the 20-year marriage of appellant Mark Liveringhouse (father) and respondent Lisa Liveringhouse (mother).  Father is employed as chief financial officer at All Homecaring, a company owned by his mother.  Mother is employed as a development analyst by ConAgra Foods.  The parties share joint legal custody of their two minor children, ages fourteen and six; the district court granted physical custody to mother.           

            The district court calculated father's net monthly income as $6,551 for child-support purposes, ordered him to pay guidelines child support of $1,965 per month, and apportioned work-related childcare expenses between the parties.  The district court ordered father to maintain life insurance to secure his child-support obligation.   The district court also ordered $366 per month in permanent maintenance to mother.  The court further determined that two payments made to the parties by father's mother$7,000 for the parties to buy kitchen cabinets and $20,000 to finance the adoption of their second childwere gifts, rather than loans.  Finally, the district court ordered father to pay a portion of mother's attorney fees.  Father appeals.

D E C I S I O N

            Because father declined to order a transcript of the district-court proceedings for this appeal, our scope of review on appeal is limited to a determination of whether the district court's factual findings support its conclusions of law.  Duluth Herald & News Tribune v. Plymouth Optical Co., 286 Minn. 495, 498, 176 N.W.2d 552, 555 (1970).

I.

      A district court has broad discretion to provide for the support of the parties' children.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).  A district court abuses that discretion when it sets support in a manner that is against logic and the facts in the record or misapplies the law.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  Findings of fact regarding an obligor's income for the purpose of calculating child support will not be set aside unless they are clearly erroneous.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002); Minn. R. Civ. P. 52.01.   

                        The statute governing the payment of child support establishes a rebuttable presumption that a child-support obligor owes a fixed percentage of the obligor's net income based on that income and the number of children to be supported.  Minn. Stat. § 518.551, subds. 5(b), (i) (2004).  The statute defines net income for support purposes as an obligor's total monthly income, less certain specified items, which include a reasonable pension deduction and the cost of group or individual health/hospitalization coverage or actual medical expenses.  Id., subd. 5(b).   This court has interpreted the "reasonable pension deductions" language of Minn. Stat. § 518.551, subd. 5(b) "to allow deductions for reasonable, non-pension retirement contributions."  Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 118 (Minn. App. 2001).                

                        Father asserts that the district court improperly calculated his net monthly income for the purpose of determining guidelines child-support without deducting from his gross income a reasonable amount for his pension, dependent-health-care expenses, and individual health-care coverage.  The district court made findings on father's net monthly income without making any such deductions from his income as submitted on his pay records.  It is not clear whether the district court failed to consider these deductions or whether the court implicitly determined that no deductions were appropriate.  An appellate court, however, cannot presume error.  Custom Farm Servs., Inc. v. Collins, 306 Minn. 571, 572, 238 N.W.2d 608, 609 (1976).  Therefore, we infer that the district court determined that no deductions were appropriate here.  This inference is consistent with the fact that while the evidence shows that an IRA contribution of $1,848 was made in father's name in 2003, father's pay records do not show whether this deduction, or any of the other deductions, was taken from his gross pay or his net pay.  And father had the burden to produce a record showing the error he asserts on appeal.  Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968).   Because we cannot presume error and because the record before us does not show error, we affirm the district court's determination of father's net income for the purpose of calculating support. 

                        Father also argues that the district court incorrectly calculated his share of work-related childcare costs.  See Minn. Stat. § 518.551, subd. 5(b) (stating that absent substantial unfairness, a district court shall allocate work-related childcare costs to each parent "in proportion to each parent's net income . . . after the transfer of child support and spousal maintenance").  We agree.  There are two errors in the allocation of childcare costs:  (1) the district court failed to deduct maintenance paid from father's income and to add maintenance received to mother's income, and (2) the district court transposed the percentage of childcare costs allocated to father with the percentage allocated to mother.  The judgment should reflect monthly childcare costs of $292.69 (39.4%) allocated to father and $450.19 (60.6%) allocated to mother.  We therefore modify the judgment to reflect this correction of the childcare costs. 

II.

 

            Father challenges the district court's award of $366 in permanent monthly maintenance to mother.  This court will uphold a maintenance award absent an abuse of the district court's broad discretion.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  The underlying factual findings on which the district court bases its decision must be affirmed unless they are clearly erroneous.  Reif  v. Reif, 426 N.W.2d 227, 230 (Minn. App. 1998). 

            A district court may order maintenance in a dissolution proceeding when the evidence shows that the party seeking maintenance "lacks sufficient property, including marital property apportioned to [that party], to provide for [his or her] reasonable needs," based on the parties' standard of living during the marriage.  Minn. Stat. § 518.552, subd. 1(a) (2004).  Maintenance is also appropriate upon a showing that a party "is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment."  Minn. Stat. § 518.552, subd. 1(b) (2004). 

            The district court found that, after receiving child support, mother would still have insufficient income to meet her reasonable monthly expenses.  The record before us supports this determination, and the district court did not abuse its discretion by awarding maintenance.  

            The parties agree that in determining maintenance, the district court clearly erred by using an exhibit showing mother's expenses to make its finding of father's reasonable monthly expenses, resulting in an overstatement of father's monthly expenses.  The record supports a determination that father's actual reasonable monthly expenses were $4,027, the amount he submitted to the district court, not $5,327, as the district court found.  But because an overstatement of his expenses did not prejudice father, we decline to disturb the district court's maintenance award.

            Father also argues that the district court's determination of maintenance should have taken into account his support obligation for a subsequent child.  While the district court made no findings regarding that issue, caselaw suggests that expenses associated with father's subsequent child are inappropriate for consideration of his ability to pay maintenance to his former spouse.  See Peterka v. Peterka,  675 N.W.2d 353, 358-59 (Minn. App. 2004) (stating that a maintenance obligor's duty to support the maintenance recipient persists after the obligor's remarriage and establishment of a "second family").  On this record, father has not shown reversible error by the district court.

III.

 

            Father challenges the district court's order that he maintain life insurance to secure his child-support obligation.  This court reviews such an order for an abuse of discretion.  Riley v. Riley, 369 N.W.2d 40, 44 (Minn. App. 1985), review denied (Minn. Aug. 29, 1985). 

            The district court has the authority to require that sufficient security be given for the payment of child support.  Minn. Stat. §  518.24 (2004).  A district court may order a support obligor to obtain or maintain life insurance to secure child support.  Emerick ex rel. Howley v. Sanchez, 547 N.W.2d 109, 112 (Minn. App. 1996).  And contrary to father's contention, the relevant provision of the judgment properly directed that mother be the payee under the policy that secures child support for the minor children.

            We also conclude that the district court made sufficient findings to support its order directing father to maintain life insurance in the initial face amount of $250,000, with a step-down when the older child graduates from high school or emancipates and a reduction to zero when the younger child graduates from high school or emancipates.  The finding on the amount of insurance required at any given time approximates father's then-liability for support as ordered by the district court. 

IV.

            Father argues that the district court misapplied the law in determining that two payments made by his mother to the parties during the marriage were gifts rather than loans.  Apportionment of marital debts lies within the district court's discretion.  O'Donnell v. O'Donnell, 412 N.W.2d 394, 396 (Minn. App. 1987).  This discretion extends to deciding whether intrafamily transactions are gifts or loans.  See Novick v. Novick, 366 N.W.2d 330, 332 (Minn. App. 1985) (holding that the record supported the district court's characterization of undocumented, unsecured, and interest-free "loans" from wife's parents as gifts).  

The record shows that father's mother made a $7,000 payment to the parties to allow them to buy kitchen cabinets and a payment of approximately $20,000 to help finance the adoption of the parties' second child.   Father argues that the payments for the cabinets and the adoption were loans, rather than gifts.  But the record contains no documents, such as canceled checks, promissory notes, or amortization schedules, indicating that the payments were loans.   The record supports the district court's findings on the nature of the payments, and the district court did not abuse its discretion by characterizing them as gifts.

V.

            Father contends that the district court abused its discretion by awarding need-based attorney fees to mother.  A district court in a dissolution action "shall" award attorney fees when necessary for the good-faith assertion of a party's rights if the party seeking the fees lacks the ability to pay and the party from whom fees are sought is capable of paying the fees.  Minn. Stat. § 518.14, subd. 1 (2004).   This court reviews a district court's award of attorney fees for an abuse of discretion.  Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999). 

            Father challenges the attorney-fee award on the grounds that the fees were unnecessary for the good-faith assertion of mother's rights;  that the district court did not make express findings on either party's ability to pay; and that, based on their incomes and the property division, the parties had equal ability to pay the fees.  Mother requested attorney fees of $85,000, the amount billed to her by her attorney.  The district court found that the reasonable value of the legal services provided to mother was $23,500 and determined that a need-based award of $10,000 "was fair and equitable under the facts of this case."  The court then offset the attorney-fee award by $5,476, the amount that the court determined was necessary as a credit to father to equalize the property division, resulting in a net attorney-fee award to mother of $4,524. 

            Conclusory findings on the statutory factors do not adequately support an award of attorney fees.  Geske v. Marcolina, 624 N.W.2d 813, 817, 819 (Minn. App. 2001) (remanding for specific findings clarifying parties' ability to pay attorney fees).  But this court may infer those findings if the record shows that the district court was familiar with the parties' finances.  See Gully, 599 N.W.2d at 826.  Here, although the district court did not find specifically that father was capable of contributing to mother's attorney fees, based on its familiarity with the parties' finances, the district court made sufficient findings to support the attorney-fee award and did not abuse its discretion in awarding need-based attorney fees to mother.   

            Affirmed as modified.