In re the Marriage of: Nancy Marie Wickhem, f/k/a Nancy Marie Jernberg, petitioner, Appellant, vs. David Damon Wickhem, Respondent.

In re the Marriage of: Nancy Marie Wickhem, f/k/a Nancy Marie Jernberg, petitioner, Appellant, vs. David Damon Wickhem, Respondent. A06-1784, Court of Appeals Unpublished Decision, October 16, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1784

 

In re the Marriage of:

 

Nancy Marie Wickhem,

f/k/a Nancy Marie Jernberg, petitioner,

Appellant,

 

vs.

 

David Damon Wickhem,

Respondent.

 

Filed October 16, 2007

Affirmed in part, reversed in part, and remanded

Kalitowski, Judge

 

Ramsey County District Court

File No. F9-04-491

 

Gary A. Weissman, Weissman Law Office, 701 Fourth Avenue South, #300, Minneapolis, MN 55415 (for appellant)

 

Linda S.S. de Beer, de Beer & Associates, P.A., Eagle Point Boulevard, Lake Elmo, MN 55042 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Worke, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Nancy Marie Wickhem challenges the district court's amended dissolution judgment and decree of July 28, 2006, arguing that (1) the district court abused its discretion in its valuation of personal property; (2) the district court abused its discretion in awarding spousal maintenance because it (a) failed to account for respondent's annual bonuses; (b) improperly imputed income to appellant; (c) erred in determining appellant's ability to support herself; and (d) erred by divesting itself of jurisdiction to hear future motions to modify spousal maintenance; (3) the district court abused its discretion by not requiring respondent to secure his spousal-maintenance obligation with life insurance; (4) the district court abused its discretion by refusing to award need-based attorney fees; and (5) the district court erred by failing to apply the new statutory cap for child support.  We affirm the distribution of personal property and the refusal to require life insurance, and we reverse and remand the spousal-maintenance and child-support awards and the refusal to award need-based attorney fees.

D E C I S I O N

            Appellant filed a petition for dissolution of the marriage.  Following a trial, the district court filed the judgment and decree on February 27, 2006.  Appellant challenged the judgment by filing a motion for amended findings or, in the alternative, a new trial.  After a hearing, the district court filed an amended judgment and decree.

I.

            Appellant argues that the district court abused its discretion in distributing personal property because it failed to properly value certain property awarded to respondent.  We disagree.

"District courts have broad discretion over the division of marital property and appellate courts will not alter a district court's property division absent a clear abuse of discretion or an erroneous application of the law."  Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn. App. 2005).  Appellate courts "will affirm the trial court's division of property if it had an acceptable basis in fact and principle even though [the appellate court] might have taken a different approach."  Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002).  "We defer to the trial court's findings of fact and will not set them aside unless they are clearly erroneous."  Id.

A district court's valuation of property is a finding of fact and will not be set aside unless it is clearly erroneous on the record as a whole.  Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn. 2001).  "Exactitude is not required of the trial court in the valuation of assets in a dissolution proceeding; it is only necessary that the value arrived at lies within a reasonable range of figures."  Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979).  "[T]he market valuation determined by the trier of fact should be sustained if it falls within the limits of credible estimates made by competent witnesses even if it does not coincide exactly with the estimate of any one of them."  Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975).

Here, the parties submitted to the services of a professional mediator in an effort to resolve their personal-property dispute.  The parties agreed on the value of the furniture in their homestead and the furniture in their cabin.  At trial, both parties waived their rights to confidentiality of the proceedings with the mediator and gave the court the authority to contact him if necessary. 

At trial, for the first time, appellant argued that respondent was being awarded unaccounted-for personal property, including stereo equipment, fishing equipment, and kitchen accessories, which appellant valued at approximately $17,000.  The district court found that this property would have little or no value on any used property market. 

The district court also determined that it would be inequitable to account for respondent's personal property, while not requiring appellant to submit the same kind of information. 

Finally, the district court reasoned that the parties had already had the opportunity to raise these valuation issues during the course of their mediation, and the property issue had been resolved.  Therefore, the district court decided to respect the parties' previous agreement:

The parties had a plan in place to resolve their personal property disputes which has been for the most part effectuated at this time, with the exception that Mr. Wickhem has not appeared at the home of Ms. Wickhem to retrieve the agreed-upon items of personal property which she has placed in the garage. Absent any information from [the mediator] to the contrary regarding the parties' resolution reached in their work with him, the Court is not inclined to now disturb that prior resolution on this issue.

 

(footnote omitted).  On this record, we conclude that the district court did not abuse its discretion in its division of personal property.

II.

            Appellant argues that the district court made numerous errors in awarding spousal maintenance.  Appellate courts review a district court's maintenance award for an abuse of discretion.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  A district court abuses its discretion regarding maintenance if resolution of the issue is "against logic and the facts on record."  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  "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); see Minn. R. Civ. P. 52.01.  Findings of fact are clearly erroneous when they are "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole."  Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723, 726 (Minn. 1985).

            In determining the amount and duration of the award, the district court is to consider the statutory factors set forth in Minn. Stat. § 518.552, subd. 2 (2006).  This process essentially balances the recipient's needs against the obligor's ability to pay.  Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn. App. 2001).  Relevant factors include:  (1) the petitioning spouse's ability to meet his or her needs independently; (2) the time necessary for the petitioning spouse to acquire sufficient education or training to find appropriate employment and the probability of becoming fully or partially self-supporting; (3) the duration of the marriage and the standard of living established during the marriage, among other factors.  Minn. Stat. § 518. 552, subd. 2.  No single factor is dispositive, and the district court must weigh the facts of each case to determine whether maintenance is appropriate.  Weikle v. Weikle, 403 N.W.2d 682, 687 (Minn. App. 1987), review denied (Minn. June 30, 1987). 

Exclusion of Bonuses

            Appellant argues that the district court abused its discretion by completely excluding any future bonuses of respondent in determining respondent's income for purposes of calculating appellant's spousal-maintenance award.  We agree. 

Maintenance is an award made in a marital dissolution "from the future income or earnings of one [party] for the support and maintenance of the other."  Minn. Stat. § 518.54, subd. 3 (2004).  In the context of child support, this court has stated that whether a source of funds is income is a question of law this court reviews de novo.  Sherburne County Soc. Servs. v. Riedle, 481 N.W.2d 111, 112 (Minn. App. 1992). "Income" is "any form of periodic payment to an individual."  Minn. Stat. § 518.54, subd. 6 (2004).  A source of funds is income for child-support purposes if it is a periodic and dependable source of support.  Stangel v. Stangel, 366 N.W.2d 747, 749 (Minn. App. 1985).  Incentive pay or bonus payments are, by definition, forms of periodic payment.  Novak v. Novak, 406 N.W.2d 64, 68 (Minn. App. 1987), review denied (Minn. July 22, 1987).  This court has previously held that for child-support purposes, determinations of income should include bonus payments, even when the amount of bonus income varies significantly.  Id.

Here, the district court awarded spousal maintenance to appellant in the amount of $1,700 per month.  And respondent was ordered to pay child support in the amount of $1,744 per month.  The court found that appellant's reasonable monthly budget is $4,000 and that, with the receipt of child support and spousal maintenance, appellant's household income has a budget shortfall of $556.

            In calculating respondent's income, the district court excluded any bonuses respondent receives after 2006.  Respondent contends that because the legislature did not specifically provide for the inclusion of annual bonuses in the definition of "income," the district court's exclusion of respondent's future bonuses was proper.  We disagree.  The plain language of the statute indicates that income "means any form of periodic payment to an individual including, but not limited to," the enumerated examples.  Minn. Stat. § 518.54, subd. 6 (2004) (emphasis added).

            The district court found that respondent's future bonuses are too speculative to be included as income.  The district court reasoned that because the stock price of respondent's company had recently dropped, and because the parties did not count on the bonus income during the marriage, it would be a significant financial detriment to respondent to consider future bonuses as part of respondent's income.

            But the record does not support the finding that respondent's bonuses were so speculative that they should be excluded entirely.  Rather, the record indicates that respondent has a recent history of receiving substantial bonuses:  $2,453 in 1999; $12,982.51 in 2000; $37,135.01 in 2001; $4,973 in 2002;[1] no bonus in 2003; $51,232.50 in 2004; and $32,514.96 in 2005.  Thus, although respondent's bonuses have fluctuated, they have constituted a significant part of his income in the majority of the years documented.  See Desrosier v. Desrosier, 551 N.W.2d 507, 509 (Minn. App. 1996)(finding error in exclusion of bonus payments from obligor's income even though bonus was not guaranteed and amount varied).

            We conclude that the district court abused its discretion by failing to account for any receipt of bonuses by respondent after 2006 and thereby leaving appellant with a monthly budget shortfall.  We remand this issue to the district court for consideration of respondent's bonuses, including any bonus respondent may have received in 2006, in determining his appropriate income for purposes of establishing his spousal-maintenance obligation.[2]  

Imputing Income

            Appellant argues that the district court erred by imputing income to her when determining spousal maintenance.  Respondent contends that the district court's finding that appellant could contribute to her own needs by utilizing her skills to provide herself with income is not an improper imputation of income.  We agree.

            The district court found that appellant was capable of becoming employed and meeting some of her needs.  This finding does not constitute an improper imputation of income.  See Schallinger v. Schallinger, 699 N.W.2d 15, 22 (Minn. App. 2005) (a finding that a party seeking maintenance has the ability to meet needs independently by full-time employment is not an ‘imputation of income'), review denied (Minn. Sept. 28, 2005). 

Ability to Support Self

            Appellant also contends the district court erred in determining her ability to become fully or partially self-supporting.  We disagree.

            The district court determined that appellant is able-bodied and capable of employment; that appellant could renew her nursing license by taking a two-month refresher course; and that appellant could enter the workforce as a nurse, earning $41,000 to $44,000 in gross annual income.  The district court noted that, although appellant had been out of her profession for 22 years, she could renew her skills and begin earning a salary.  The district court also stated that even though appellant claims she does not have the physical stamina to work in her field, she could find employment in several nursing positions that would suit her.  Because all of the district court's findings are supported by evidence in the record, we cannot conclude that the findings are clearly erroneous.  See Gessner, 487 N.W.2d at 923 ("[f]indings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous").

Although the district court failed to make a specific finding regarding how much income appellant was capable of earning, the court did find that six months was a reasonable amount of time for her to find employment.  And by not providing appellant with additional maintenance when child support terminates, the district court implicitly found that by the time the parties' child was 18, appellant would be able to meet her needs with a combination of maintenance and income from employment.  Again, because there is evidence in the record to support the district court's findings, we cannot conclude the findings are clearly erroneous.

Divestiture of Jurisdiction

Appellant argues that the district court erred by divesting itself of jurisdiction to hear her possible motions for modification of spousal maintenance in the future.  Respondent argues that the district court has not precluded appellant from bringing a motion for modification based on facts that develop after trial; nor has it permanently divested itself of jurisdiction.  Rather, respondent contends, the district court correctly determined that termination of child support, by itself, is not justification for an increase in maintenance, because the termination is anticipated, and the district court has already considered it in the amount of the maintenance award.

Respondent is correct that maintenance should not be modified when the moving party did or could have anticipated the alleged changed circumstances.  Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997).  Circumstances that are in existence or contemplated at the time of the decree should not be grounds for modification.  Hillestad v. Hillestad, 405 N.W.2d 436, 439 (Minn. App. 1987). 

Here, the district court did not divest itself of jurisdiction to modify spousal maintenance.  Instead, it informed the parties that:

The termination of child support is not a substantial change in circumstances in conformance with Minnesota Law.  The right to child support is inherent in the child and not the [appellant].  Therefore, when the child support terminates there is no corresponding right to an increase in spousal maintenance.  This Court found that a reasonable budget for [appellant] is $4000.00 per month.  With [appellant] receiving $1,744.00 in Child Support and $1,700.00 in spousal maintenance, [appellant's] household income has a budget shortfall of $556.00.  It is reasonable that [appellant] cover that shortfall through gainful employment.

 

We conclude that the district court's comments are advisory as to future modification motions and do not foreclose appellant from bringing a proper motion to modify spousal maintenance in the future if appellant can meet the requirements for modification set forth in Minnesota law.

III.

            Appellant argues that the district court abused its discretion by not requiring respondent to secure his spousal maintenance obligation with life insurance.   Respondent contends that appellant failed to raise this issue at trial and the district court had the discretion not to require life insurance.  We agree.

            An issue that is first raised in a posttrial motion is not raised in a timely fashion.  Grigsby v. Grigsby, 648 N.W.2d 716, 726 (Minn. App. 2002); see, e.g., Antonson v. Ekvall, 289 Minn. 536, 538-39, 186 N.W.2d 187, 189 (1971) (stating claim made "too late" when made for the first time in a motion for a new trial); Allen v. Central Motors, Inc., 204 Minn. 295, 299, 283 N.W. 490, 492 (1939) (stating issue raised "too late" when first raised in motion for amended findings). 

            Here, appellant failed to raise this issue at trial.  The district court correctly refused to grant appellant's posttrial motion to secure respondent's spousal-maintenance and child-support obligations with life insurance.  On this record, appellant has not shown that the district court abused its discretion by refusing to order respondent to maintain life insurance.

IV.

Appellant argues that the district court abused its discretion by denying her request for need-based attorney fees, because (1) appellant is unemployed and does not have the means to pay the more than $70,000 in fees and costs she has incurred; and (2) respondent has the means to pay at least part of appellant's attorney fees.  We agree.

An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2006), will not be reversed absent a clear abuse of discretion.  Bogen v. Bogen, 261 N.W.2d 606, 611 (Minn. 1977).  The district court must make specific findings of the factors on which an award of attorney fees is made or denied.  In re Marriage of Richards, 472 N.W.2d 162, 166 (Minn. App. 1991). 

Under Minnesota law, the court shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding, provided it finds:

(1) that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;
(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

 

Minn. Stat. § 518.14, subd. 1. 

            "[T]he failure to award . . . attorney fees cannot be characterized . . . as an abuse of discretion where the property and income of the parties, following the reapportionment of the marital property and the award of permanent maintenance, should be relatively evenly balanced."  Nardini v. Nardini, 414 N.W.2d 184, 199 (Minn. 1987).  Here, the district court denied appellant's request for need-based attorney fees because property was divided equally between the parties and because appellant was awarded spousal maintenance.

Although the record indicates that the division of the marital property was equitable, the record also shows that the parties' incomes are significantly unequal.  Appellant currently has an income consisting of spousal-maintenance and child-support payments, which the district court recognized would leave appellant with a monthly shortfall of $556.  Since 2000, respondent's annual income has ranged from a high of approximately $902,000 in 2000 to a low of approximately $155,000 in 2005.  On this record the significant disparity in the parties' resources indicates that appellant lacks the means to pay all her attorney fees and respondent has the means to pay at least a part of appellant's attorney fees.  Thus, we conclude that the district court abused its discretion by refusing to order respondent to pay any part of appellant's attorney fees.  See Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (stating that a decision is an abuse of discretion when it is "against logic and the facts on record").  We therefore remand this issue to the district court.

V.

            Appellant argues that the district court erred in calculating the child-support award because it failed to apply the new statutory cap, which was implemented on July 1, 2006.  We agree.

            Under Minnesota law, the guidelines are "to be used in all cases when establishing or modifying child support."  Minn. Stat. § 518.551, subd. 5(i) (2004).  The guidelines set child support at 25% of the obligor's net income; Minn. Stat. § 518.551, subd. 5(k) (2004), required the Minnesota Supreme Court to adjust the cap on July 1st of even-numbered years to reflect changes in the cost of living.  Pursuant to Minn. Stat. § 518.551, subd. 5(k), the Supreme Court issued an order raising the cap.  The court ordered "[t]hat the new dollar amount of the income limit for application of the child support guidelines, modified in accordance with Minn. Stat. § 518.551, subd. 5(k) (2004) shall be $7,360.00, effective July 1, 2006." 

            Because the amended judgment and decree of July 28, 2006, was entered after July 1, 2006, it should have reflected the cap in effect on July 1, 2006.  Thus, on remand the district court should apply the new statutory cap. 

            Affirmed in part, reversed in part, and remanded. 

[1] Respondent testified that he did not receive a bonus in 2002 but that he received a special payment of $4,900 for a special project that he worked on.

 

 

[2] Appellant argues that the district court should have ordered a "base-plus-a-percent" formula regarding bonus payments.  Although the "fixed-amount-plus-a-percent-of-bonus" approach is not preferable, it is permissible.  See McCulloch v. McCulloch, 435 N.W.2d at 564, 567 (Minn. App. 1989) (citing Doherty v. Doherty, 388 N.W.2d 1 (Minn. App. 1986) (affirming district court's decision to include bonus payments)).  This court has also allowed income averaging in situations where an obligor's income fluctuates.  Veit v. Veit, 413 N.W.2d 601, 606 (Minn. App. 1987).