In re the Marriage of: Michael Aaron Jugovich, petitioner, Appellant, vs. Terri Lynn Jugovich, Respondent.

This opinion will be unpublished and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

A03-202

 

In re the Marriage of:

Michael Aaron Jugovich, petitioner,

Appellant,

 

vs.

 

Terri Lynn Jugovich,

Respondent.

 

Filed November 4, 2003

Affirmed

Willis, Judge

 

St. Louis County District Court

File No. F5-01-301144

 

Mary I. Johnson, Johnson Law Firm, P.A., 208 Fifth Avenue South, P.O. Box 1172, Virginia, MN 55792 (for appellant)

 

Richard E. Prebich, 1932 Second Avenue East, Suite 2, Hibbing, MN 55746 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

In this dissolution action, appellant father argues that the district court abused its discretion (1) by awarding the parties joint physical custody of the children; (2) by failing to award him a non-marital interest in the parties' homestead; and (3) by reserving the issues of homestead valuation and spousal maintenance.  Because we conclude that the district court did not abuse its discretion, we affirm.

FACTS

Appellant father Michael Aaron Jugovich and respondent mother Terri Lynn Jugovich, who are the parents of two children, were married in 1994, and their marriage was dissolved in January 2003.  The parties separated in July 2001, and in December 2001, they stipulated to an order containing a "temporary parenting plan."  The plan was later amended by an order filed in July 2002. 

In August 2002, the court ordered the parties to follow the joint-custody schedule in the report of a court-appointed custody evaluator.  The report required each party, in the event that the party was unable to care for the children when scheduled, to first contact the other party and give him or her the option to care for the children.

At the parties' October 2002 trial, mother testified that for "a period of time" after the parties separated in 2001, she did not request parenting time with the children because she was concerned that "it would hurt" father.  Mother also testified that she sets her own work hours and that frequent changes in her hours before implementation of the August 2002 joint-custody schedule made it difficult for the children to adjust to a regular parenting-time schedule.  Mother added that the parties' parenting time had been "stable" since implementation of the August 2002 schedule.

The court-appointed custody evaluator testified that she recommended that the parties share joint physical custody of the children.  She noted that mother and father "felt that they could get along, that they could work together regarding the children" and that mother and father had "the same parenting skills, the same values, the same interest with the children."

In a judgment entered on January 22, 2003, the district court awarded the parties joint physical custody of the children.  The court found that the evidence presented at trial supported findings of fact on the issue of custody that are "substantially consistent" with the report of the custody evaluator.  The court also found that granting father sole physical custody, as he requested, would allow him to "unduly control the children's contact with [mother] and to interfere with the fostering of a healthy relationship between the children and [mother], in a way that will negatively impact on the best interests of the children."

            Regarding division of the parties' property, the district court found that during the parties' marriage, mother received approximately $52,000 in non-marital funds, all of which was spent during the marriage.  The court also found that father had used $20,000 of his non-marital funds as a down payment on the parties' homestead.  The court determined that the parties' respective non-marital property claims were "equivalent" and therefore treated them as offsetting.  The court further found that the record was "inadequate to make a decision to resolve the dispute between the parties as to the value of the homestead real estate" and therefore left the record open for an appraisal by a qualified real-estate appraiser.  The court also reserved the issue of spousal maintenance.  This appeal follows.

D E C I S I O N

I.

Father first argues that the district court abused its discretion by awarding the parties joint physical custody of the children.  Appellate court review of a custody determination is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  A district court's findings will be sustained unless they are clearly erroneous.  Pikula, 374 N.W.2d at 710.  Currently, the law "leaves scant if any room for an appellate court to question the trial court's balancing of best-interests considerations."  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).

Father contends that the evidence that mother refused parenting time and failed to comply with the pre-dissolution parenting-time schedule demonstrates that she is unable to participate in a joint-physical-custody arrangement.  While mother testified that she had at one time refused to exercise her parenting time out of fear of hurting father, she also unequivocally expressed a current desire to share joint physical custody of the children.  Father also asserts that mother testified that she manipulated her work schedule to avoid parenting time.  But mother in fact testified only that her work schedule had fluctuated in the past because of her need to remain at work later on some days than others.  She added that she expected that, in the future, her schedule would remain unchanged from day to day to promote a stable parenting-time schedule.  Finally, the custody evaluator's report and testimony, which father does not refute, provide ample support for the district court's findings on the best-interests factors.  We conclude, therefore, that the district court did not abuse its discretion by awarding the parties joint physical custody of the children.

II.

Father next argues that the district court abused its discretion by failing to award him a $20,000 non-marital interest in the parties' homestead.  The district court has broad discretion to divide marital property and will be affirmed if its division "has an acceptable basis in fact and principle even though [the appellate court] might have made a different disposition of the problem."  Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986) (quoting Bollenbach v. Bollenbach, 785 Minn. 418, 428, 175 N.W.2d 148, 155 (1970)).  The district court does not have to make an equal division of property but, rather, a "just and equitable division."  Minn. Stat. § 518.58, subd. 1 (2002).  Upon the dissolution of a long-term marriage, an equal division of marital property is presumptively equitable.  Miller v. Miller, 352 N.W.2d 738, 742 (Minn. 1984).

            Father argues that the evidence shows that he used $20,000 of his non-marital funds for a down payment on the homestead.  Indeed, the court found that to be true.  Father contends, however, that he is entitled to a $20,000 non-marital interest because the assets that were traced to mother's non-marital funds, a 1997 Chevrolet sport-utility vehicle and one of the parties' two snowmobiles, were awarded to mother. 

But the district court did not award those assets to mother on the basis of tracing them to her non-marital funds.  Rather, the court found that the "respective pre-marital or non-marital claims of the parties are equivalent" and concluded that it was "reasonable that the court simply consider [father's] homestead non-marital claim offset by" mother's non-marital claims on the 1997 Chevrolet sport-utility vehicle and one of the parties' snowmobiles.  In addition to the 1997 Chevrolet sport-utility vehicle and the snowmobile, the court awarded mother the parties' 1987 Chevrolet sedan.  And the court awarded father the parties' 2001 Dodge truck and 1994 Oldsmobile sedan and the parties' other snowmobile.  Further, the court awarded each party one-half of the equity in their homestead.  The court apparently made an approximately equal division of the parties' property based on its finding that the parties had a "fairly long-term economic partnership."  Cf. Gales v. Gales, 553 N.W.2d 416, 421 (Minn. 1996) (refusing to "quibble with" district court's finding that parties had "long-term" marriage).

Given the long-term nature of the parties' marriage, we presume that equal division of their marital property is equitable.  The district court did not, therefore, abuse its discretion by refusing to award father a $20,000 non-marital interest in the parties' homestead.

III.

            Father also argues that the district court abused its discretion by reserving the issue of the value of the parties' homestead.  Because the district court has broad discretion in dividing marital property, its decision will stand unless it has abused that discretion.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

            Here, the only evidence submitted regarding the value of the homestead was property-tax information from the Saint Louis County Auditor's Office.  The information showed a "taxable market value" of $88,700 in 2001 and 2002 and a taxable market value of $102,300 in 2003.  The district court found no reason for the value of the homestead to have increased by this much and noted that real-estate tax statements are "poor evidence as to value."  Because there was insufficient evidence of the homestead's value, the district court did not abuse its discretion by reserving the issue of homestead valuation.

IV.

Father argues finally that the district court abused its discretion by reserving the issue of spousal maintenance payable to mother.  Whether to reserve jurisdiction over the issue of maintenance is within the district court's discretion.  Minn. Stat. § 518.55, subd. 1 (2002).

            Father contends that reservation of maintenance was an abuse of discretion because mother testified that her health was "fine" and that, despite the district court's finding regarding how many hours mother works each week, she sets her own hours and could work more if she chose to.  Father apparently argues that mother is voluntarily underemployed, but that issue is not properly before this court because father did not present it to the district court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

Further, the variability of mother's income supports the district court's reservation of maintenance because such a reservation allows the court to address future changes in mother's income without prematurely burdening father.  See Van De Loo v. Van De Loo, 346 N.W.2d 173, 178 (Minn. App. 1984).  And the uncertainty of father's income also supports reservation; the district court found, and father does not dispute, that his income is contingent on the resolution of his pending workers'-compensation proceedings.  We conclude, therefore, that the district court did not abuse its discretion by reserving the issue of maintenance.

            Affirmed.