In re the Marriage of: George Maverick, petitioner, Appellant, vs. Felicia Carmen Lucec, 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This opinion will be unpublished and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

A03-36

 

In re the Marriage of:

 

George Maverick, petitioner,

Appellant,

 

vs.

 

Felicia Carmen Lucec,

Respondent.

 

Filed November 25, 2003

Affirmed in part, reversed in part and remanded

Harten, Judge

 

Hennepin County District Court

File No. DC270956

 

Robert A. Manson, 2233 Hamline Avenue North, Suite 609, Roseville, MN 55113 (for appellant)

 

William L. Lubov, Alex Brusilovsky, Lubov and Associates, LLC, Suite 210, 820 North Lilac Drive, Golden Valley, MN 55422 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Hudson, Judge, and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            On appeal in this marriage dissolution action, appellant challenges the district court's two attorney fee awards to respondent, the imposition of a lien for attorney fees on the parties' homestead, the distribution of the marital property, and the calculation of the child support obligation.  We affirm in part, reverse in part, and remand. 

FACTS

 

            Appellant George Maverick and respondent Felicia Carmen Lucec, both immigrants from Romania and Canadian citizens, were married in Winnipeg, Manitoba, in 1993.  They have one daughter, M.M., now 9.  The family lived in Winnipeg until 1998, when appellant moved to Minneapolis to accept a job offer there.  Respondent and M.M. remained in Canada while respondent completed a nursing degree.  The parties applied for green cards so respondent and M.M. could move to Minneapolis.

            The parties used marital savings to purchase a condominium in Minneapolis.  When appellant later refinanced, he received approximately $13,000.  He also received approximately $5,000 from the sale of a motor vehicle that belonged to both parties.

            In September 2001, the parties separated.  In October, they both filed for dissolution of their marriage; appellant filed in Hennepin County, and respondent filed in Canada.  Prior to trial, the Hennepin County district court deferred exercise of jurisdiction over child custody in favor of the Canadian courts.

After a bench trial, the district court ordered appellant to pay guideline child support of $340 (25% of his net monthly base income of $1350), plus 25% of any net monthly income over that amount.  The district court awarded the condominium to appellant, subject to existing liens, and granted respondent two liens on it.  One lien of $18,700 was respondent's share of the property settlement; the other lien of $2,500 was her attorney fee award.  The parties were ordered to assume their own debts.  Respondent was awarded appellant's interest in a 401(k) savings plan and an investment account, and appellant was awarded respondent's interest in shares of certain stock.

During a hearing on appellant's motion for amended findings and respondent's motion to enforce the child support order, the district court explained that the attorney fee award was based on both respondent's need and appellant's conduct.  But the amended judgment stated that the attorney fee award was based solely on appellant's conduct.  The district court also granted a lien of $500 on the condominium in favor of respondent for attorney fees generated by the motion; this award was based on respondent's need.

Appellant now challenges the attorney fee award, the property division, and the child support calculation.

D E C I S I O N

1.         Attorney Fees

An award of attorney fees under Minn. Stat. § 518.14, subd. 1, "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion."  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. 18 Feb. 1999).

            Awards may be based on need, conduct, or both.  Minn. Stat. § 518.14, subd. 1 (2002); Geske v. Marcolina, 624 N.W.2d 813, 816 (Minn. App. 2001).  District courts award need-based attorney fees where: (1) fees are necessary for the good-faith assertion of a party's rights; (2) the party from whom the fees are sought has the ability to pay; and (3) the recipient of the award does not have the means to pay the fees.  Minn. Stat. § 518.14, subd. 1.  Courts may also award fees based on conduct "against a party who unreasonably contributes to the length or expense of the proceeding."  Id.

Following trial, the district court awarded attorney fees of $2,500 to respondent.  During the post-trial hearing, the district court explained that the award was based on a combination of need and conduct.  But the district court did not specify how much of the $2,500 award was need-based and how much was conduct-based; the court explained that the "bulk" was need-based and a "piece" was conduct-based.  But the amended order for judgment states, "The attorney fees awarded to [r]espondent in the dissolution proceeding were based upon [appellant's] conduct."  Because the record is ambiguous as to the basis of the attorney fee awardwhether conduct based or need basedand there are no findings of fact to delineate the amount of the award that is conduct based or the amount that is need based, we remand with directions that the district court specify the amounts and basis of the awards.

            Appellant also challenges the respondent's award of $500 for attorney fees incurred in the post-trial motion hearing, arguing that there was no showing of changed circumstances to justify a need-based award.  But Minn. Stat. § 518.14, subd. 1, does not require a change in circumstances to justify a need-based award of attorney fees.  The district court found that appellant earned three or four times respondent's income, and the new trial motion allowed the parties to expand the scope of an appeal.  Because the district court's findings satisfied the three requirements for a need-based award, there was no abuse of discretion in the $500 attorney fee award.

Finally, appellant challenges the district court's imposition of liens on the condominium for the attorney fee awards, arguing that Minn. Stat. § 510.01 (2002), the homestead exemption, provides no statutory authority for such a lien.  But Minn. Stat. § 518.14, subd. 1, which deals with dissolution attorney fees, permits a district court to "authorize the collection of money awarded by execution, or out of property sequestered, or in any other manner within the power of the court."  Therefore, the trial court had authority to grant liens for the attorney fee awards.[1]

2.         Property Division

            District courts have broad discretion in dividing property and setting reasonable valuation dates.  Desrosier v. Desrosier, 551 N.W.2d 507, 510 (Minn. App. 1996).  Appellate courts will not alter a district court's property division absent a clear abuse of discretion or an erroneous application of law.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000) (clear abuse of discretion), review denied (Minn. 25 Oct. 2000); Ebnet v. Ebnet, 347 N.W.2d 840, 842 (Minn. App. 1984) (misapplication of law).

Under Minn. Stat. § 518.58, subd. 1 (2002), district courts may value marital assets on a date that is fair and equitable.  Appellant argues that the parties separated when he moved to Minneapolis in 1998.  But appellant testified at trial that, until September 2001, he and respondent intended their marriage to continue and they would live as a family in Minneapolis.  Accordingly, the district court found that, for the purposes of property division, the parties' separation in September 2001 was a fair date to value assets.  This finding was not clearly erroneous.[2]

Appellant also challenges the division of the property, arguing that the disparity is too extreme to be justified.  District courts must make "just and equitable" divisions of marital property.  Minn. Stat. § 518.58, subd. 1.  But an equitable property award need not be mathematically equal.  Vinnes v. Vinnes, 384 N.W.2d 589, 592 (Minn. App. 1986).

Appellant argues that respondent did not contribute to the parties' assets in Minneapolis, has a good job, and does not need additional assets.  But the district court explained its unequal division of the property:

            It reflects in part the $6,000 of [child] support that I thought he should have paid, which is an after-tax dollar.  It reflects the fact that the 401-K has hidden within it, a tax effect that's probably a fourth to a third of the principal, so it's in fact discounted by five or $6,000.  Those are the two principal reasons why I made a disequality [sic.].

            I'm also accounting for the fact that in the amounts of money that were spent; the [$]16,000 of present debt, the car proceeds, the refinance proceeds, the money that her family spent; without quantifying any of those individually, I'm saying that some of that money deserved to be still there, I guess is what I'm saying; that [appellant] consumed a disproportionate share of the family's resources during the period of their separation.

The district court took relevant factors into account when dividing the parties' property.  Although the better practice would have been for the district court to make formal findings to explain the unequal division, there was no prejudicial abuse of discretion.

3.         Child Support

            A district court has broad discretion to provide for the support of the parties' children, but it abuses its discretion when it sets support in a manner that is against logic and the facts on the record or misapplies the law.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (setting support in a manner that is against logic and facts on record); Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998) (improper application of the law).

            The district court ordered appellant to pay guideline child support of $340, based on his average net monthly income at the time of trial ($1,350).  The court also ordered him to pay 25% of any additional net monthly income.  Appellant claims that the percentage of income provision was erroneous

            The district court's calculation is based on the child support guidelines found in Minn. Stat. § 518.551, subd. 5(b) (2002) (support for one child with $1,000-$5,000 monthly income is 25%).  But a court may order obligor to pay child support in form or percentage of obligor's bonuses, commissions, and other forms of compensation.  Minn. Stat. § 518.551, subd. 5(a) (2002).  Although the statutory preference is for child support to be set in the form of a specific dollar amount, percentage awards may be justified by findings that state the reasons for the percentage and how it serves the best interests of the child.  See Williams v. Williams, 635 N.W.2d 99, 104 (Minn. App. 2001) (interpreting guideline support to be in the form of a dollar amount and any percentage to be a deviation from the guidelines).  See also Minn. Stat. § 518.551, subd. 5(i) (2002) (requiring findings to support deviations from the guidelines).

            The district court's findings and the record reveal that appellant's income fluctuated.  Appellant testified that his income consisted of a base salary of $1,350 plus commissions and that he was running his own consulting business.  The district court found that, while appellant earned an average of $1,350 each month at the time of the dissolution, "[i]t is anticipated that given [appellant's] occupation in the computer field, in the future his income will exceed that of [r]espondent."  The district court also invited the parties to set support in a specific amount after two years or at a sensible time when a specific amount reasonably could be set.  Thus, the district court intended the percentage portion of the award would eventually change.  We note that the district court did not make explicit findings under Minn. Stat. § 518.551, subd. 5(i).  But, because the district court's findings and the record demonstrate the reasons for the percentage portion of the child support award and that the award was in the best interests of the child, the district court did not abuse its discretion.

            We affirm the $500 attorney fee award, the property award, and the child support award; we reverse and remand with directions regarding the $2,500 attorney fee award.

            Affirmed in part, reversed in part and remanded.

 

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

[1] In her brief and during oral argument, respondent requested attorney fees incurred for this appeal.  To request appellate attorney fees, respondent must move for attorney fees under Minn. R. Civ. App. P. 139.06.

[2] Appellant relies on Batsell v. Batsell, 410 N.W.2d 14 (Minn. App. 1987), review denied (Minn. 30 Sept. 1987) and March v. March, 435 N.W.2d 569 (Minn. App. 1989), but both cases are distinguishable.  In Batsell, the parties had been divorced for approximately 18 years prior to the division of the property, one party had not made any contributions to the homestead following the divorce, and equal division of the net equity was not equitable.  Batsell, 410 N.W.2d at 16-17.  In March, the parties refinanced their house after separating and divided the net equity; the party leaving the house had not contributed to it after the separation.  March, 435 N.W.2d at 571.