In re Michael Charles Baglio, petitioner, Appellant, vs. Michelle Louise Baglio, 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This opinion will be unpublished and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

C0-03-387

 

 

In re

 

Michael Charles Baglio, petitioner,

Appellant,

 

vs.

 

Michelle Louise Baglio,

Respondent.

 

Filed October 28, 2003

Affirmed; motion granted in part. Lansing, Judge

 

Ramsey County District Court

File No. F4001460

 

 

Michael Charles Baglio, 6048 Upper 51st Street North, #309, Oakdale, MN  55128 (pro se appellant)

 

Carla C. Kjellberg, 333 West Parkale Plaza, 1660 South Highway 100, St. Louis Park, MN  55416 (for respondent)

 

 

            Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from judgment in a marital-dissolution proceeding, Michael Baglio challenges the district court's determinations on custody, parenting time, maintenance, property division, and attorneys' fees.  Because the district court did not misapply the law, abuse its discretion, or make findings unsupported by the record, we affirm.  We also grant in part Michelle Harris's motion to strike the appendix to Baglio's brief.

F A C T S

            Michael Baglio and Michelle Harris married in 1991 and are the parents of a child born in 1998.  For the first eight years of the marriage, Baglio was employed as an accountant.  In 1999, Baglio invested in a pizza franchise.  While Baglio initially worked fulltime at his accounting job while also managing a Carbone's pizza franchise, he later stopped working at his accounting job.  Michelle Harris is employed by the St. Paul schools with a net monthly income of $520.69.

Baglio and Harris separated in August 2000 and, later that month, Harris obtained an order for protection against Baglio.  In September, Baglio petitioned for dissolution.  The dissolution proceeding has been marked by mutual allegations of abuse and chemical dependency, parallel proceedings for orders for protection, and repeated conflict over parenting time.

Following a contested hearing, the district court issued a dissolution judgment placing sole legal custody of the child with Harris, imputing income to Baglio for computing support and maintenance, setting Baglio's child-support and temporary maintenance obligations, requiring Baglio to pay the child's medical and dental insurance, setting a parenting-time schedule, valuing and dividing the equity in the marital homestead, and ordering Baglio to pay Harris attorneys' fees.

Baglio appeals, challenging each of these determinations.  Harris moves to strike the appendix to Baglio's reply brief alleging that its contents are not part of the record on appeal.

D E C I S I O N

I

            As a preliminary matter, we address Harris's motion to strike the contents of the appendix to Baglio's reply brief.  An appellate court may not base its decision on matters outside the record on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  The record on appeal comprises "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any[.]"  Minn. R. Civ. App. P. 110.01.

Baglio's reply brief includes letters and documents that are not exhibits and were not filed.  The only item that is part of the record is a prehearing statement.  Baglio's closing-argument-by-letter was authorized by the referee and, although not in the record, is part of the proceedings.  All documents in the appendix and references to the documents, except the prehearing statement and Baglio's closing argument, are therefore stricken.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 543-44 n.7 (Minn. 2001) (striking extra-record material in appendix and references to material).

II

Baglio argues that the district court should have ordered joint legal custody of Harris and Baglio's child.  A district court's custody determination will not be altered unless the district court abused is broad discretion by making findings unsupported by the evidence or improperly applying the law.  In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).  In deciding whether to award joint legal custody, the court "shall consider" the factors listed in Minn. Stat. § 518.17, subd. 2 (2002).  Joint legal custody is rebuttably presumed to be in a child's best interests, but is not appropriate when the parents cannot cooperate in making decisions that affect the child.  Id.; Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993); Estby v. Estby, 371 N.W.2d 647, 649 (Minn. App. 1985).

The district court adopted the county's domestic-relations evaluation.  The evaluation includes two pages of findings addressing the joint-custody factors and detailing the parties' current inability to cooperate.  The evaluation concludes that "[t]he conflicts between these parents appear monumental[,]" that "[e]ach [party] accuses the other of abusive behavior and of stalking them since their separation[,]" and that Harris should receive "primary" legal custody.  The guardian ad litem's report is consistent with the domestic-relations evaluation.  The district court relied on these submissions and also expressed concern about Baglio's history of chemical use, Baglio's conduct preceding and during the dissolution, and Baglio's failure to recognize the effects of his conduct on the child.  The record fully supports the district court's order of sole legal custody to Harris.

III

Minnesota law requires the district court to allow parenting time "as will enable the child and the noncustodial parent to maintain a child to parent relationship that will be in the best interests of the child."  Minn. Stat. § 518.175, subd. 1(a) (2002).  Baglio challenges the ending time of 3:00 p.m. for holiday visitation and also contends that his vacation and phone time with the child is insufficient.  A district court has broad discretion to resolve parenting-time issues and will be not be reversed absent an abuse of that discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  Although specific findings are helpful to explain the district court's reasoning, the district court is not required to make the detailed findings on visitation that are required for custody determinations.  Id.

Ending parenting time at 3:00 on holidays is consistent with the recommendations in the domestic-relations evaluation.  It is also consistent with the district court's express concerns about Baglio's chemically related behavior and its potential effect on the child.  The record adequately supports the district court's determination on parenting time and we perceive no abuse of discretion.

IV

If the district court finds that a parent is voluntarily underemployed, child support may be calculated on a determination of imputed income.  Minn. Stat. § 518.551, subd. 5b(d) (2002).  The district court made three pages of findings detailing Baglio's lack of financial candor, including that Baglio hid the existence of his bank account by falsely stating at his deposition that it was closed, that the income Baglio reported "is on its face unbelievable," and that Baglio was either dishonest about his finances or that he was voluntarily underemployed.

Based on Harris's evidence that annual incomes for accountants and restaurant managers were $37,667 and $43,000, respectively, the district court imputed to Baglio annual income of $43,000, found his monthly income to be $2,566, and set his monthly child-support obligation at $641.50, the guideline amount for that income.  Baglio contends that his monthly income is $1,560 and his monthly child support should be $390.

Appellate courts defer to district court on credibility determinations.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988); see Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) (stating district court is not required to accept uncontroverted testimony if reasonable grounds for doubting credibility exist).  The record provides ample evidence to support the court's findings on the untrustworthiness of Baglio's statements on his income and finances.  At trial Baglio admitted that he could be employed as a restaurant manager and Harris submitted evidence that the average annual income for a restaurant manager was $43,000 to $45,000.  Baglio did not dispute this evidence.  The record supports the amount of income imputed to Baglio and the necessity of imputing income rather than accepting Baglio's testimony.

V

The district court ordered Harris to provide medical insurance for Baglio and for the child and ordered Baglio to reimburse Harris for the cost of providing medical insurance for the child and for him, to pay the child's unreimbursed medical expenses, and to provide dental insurance for the child.  Baglio contends that he lacks the financial ability to make these payments.  From Baglio's imputed monthly income of $2,566, the district court subtracted $825.94 for Baglio's monthly individual expenses, $641.50 for child support, $400 for maintenance, and $237.71 for the child's medical insurance.  This leaves Baglio $460.85 each month that would be available to pay the child's dental insurance and uninsured medical expenses.

Baglio seems to argue that he should not be required to reimburse Harris for the cost of Harris's own health insurance.  But that is not what the judgment requires.  Baglio must reimburse Harris for any cost for Harris carrying Baglio on her insurance for the COBRA period.  The judgment does not require Baglio to reimburse Harris for the cost of her own health insurance. Under these circumstances, we decline to alter the district court's apportionment of the insurance costs.  If Baglio does not want to be covered by Harris's insurance, he may make an appropriate motion to the district court.

VI

            The district court ordered Baglio to pay Harris monthly maintenance of $400 for six years.  The court found that Harris was employed as a teacher's aid with a net monthly income of $520.69.  The court also found that to increase that income she needed to obtain a college degree.

Baglio presents a number of objections to the maintenance order, but the objections lack factual or legal support.  Baglio relies on Bourassa v. Bourassa, 481 N.W.2d 113 (Minn. App. 1992) to argue that maintenance should not be based on imputed income.  But Bourassa instead holds that earning capacity should not provide a basis for maintenance when the obligor is not underemployed in bad faith.  Id. at 116.  Bourassa does not support Baglio's claim.  Baglio asserts that Harris waived maintenance at a pretrial hearing.  Harris does not agree with this allegation, and Baglio has provided no transcript of that hearing or other evidence of waiver.  Baglio argues that Harris could support herself by working full time and running a floral business out of her home.  But the record shows that in 2001, Harris was able to make only $189 from her floral business.

            Baglio challenges the $400 maintenance amount because he contends that Harris received a disproportionate amount of marital property, that her current expenses are less than her claimed expenses, and that an inheritance from Harris's father was not considered.  The evidence does not support a claim that any marital property could provide income.  The district court made findings on Harris's reasonable expenses and those findings are supported by the record.  And in Baglio's reply brief he admits that Harris's father was alive at the time of trial.  Any changed circumstances occurring after the trial should be addressed in a motion to modify.  See Minn. Stat § 518.64, subd. 2 (2002) (addressing modification of maintenance). 

VII

A district court's asset valuation is "an approximation," that will not be set aside unless it is "clearly erroneous on the record as a whole," and will be affirmed if it "lies within a reasonable range of figures."  Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975).  The district court averaged the expert valuations submitted by Baglio and Harris and determined the house to be worth $151,000.  The court explained, that because the expert valuations were submitted by stipulation and without testimony, the court could not assess comparative reliability.  The court's methodology was reasonable, and the district court's valuation was within the range of values submitted at trial.  We affirm the court's valuation of the marital homestead.

The court reduced the equity by $15,269 for the cost of sale and by $2,000 for the cost of a new furnace installed by Harris.  The court also reduced Baglio's share of the equity by $1,586.58 to account for his child-support arrears.  Although Baglio challenges the cost-of-sale reduction because the home has since been refinanced rather than sold, neither the refinancing question nor Baglio's challenge to the calculation of his support arrears were presented to the district court.  Therefore we decline to address those issues.  Thiele, 425 N.W.2d at 582-83.  We also reject Baglio's allegation that the record does not support the furnace deduction.  Harris testified that "[t]he furnace went out last winter." The market-analysis evaluator noted the furnace problem, but did not deduct it from the valuation of the home.

            Baglio challenges his inability to realize his lien on the house until the child is eighteen.  The reason for this delay is to provide a stable home for the child, a decision within the court's discretion.  Further, Baglio did not raise this issue in the district court and the issue is not properly considered on appeal.  Thiele, 425 N.W.2d at 582-83. 

VIII

            Finally, Baglio challenges the district court's order that he pay Harris $10,000 in attorneys' fees.  Baglio assumes that the award is an award of need-based fees under Minn. Stat. § 518.14, subd. 1 (2002) and argues that the district court failed to make the findings necessary to support need-based attorneys' fees and that he lacks the ability to pay need-based fees.  Baglio disregards, however, the statute's provisions for conduct-based attorneys' fees.  Id.  Conduct-based fee awards "may be made regardless of the recipient's need for fees and regardless of the payor's ability to contribute to a fee award."  Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001) (citations omitted).  The district court's detailed findings on Baglio's lack of financial candor adequately support a conduct-based fee award and we therefore affirm the order that Baglio pay Harris attorneys' fees.

            Affirmed; motion granted in part. 

 

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.