In re the Marriage of: Mary Beth Tollefsrud f/k/a Mary Beth Ramler, petitioner, Respondent, vs. Lyle Harold Tollefsrud, Appellant.

This opinion will be unpublished and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

A03-1387

In re the Marriage of:

Mary Beth Tollefsrud f/k/a Mary Beth Ramler, petitioner,

Respondent,

vs.

Lyle Harold Tollefsrud,

Appellant.

Filed April 27, 2004

Affirmed in part and remanded; motions denied

Robert H. Schumacher, Judge

Dakota County District Court

File No. F5027205

M. Sue Wilson, Lymari J. Santana, M. Sue Wilson Law Offices, P.A., Two Carlson Parkway, Suite 150, Minneapolis, MN 55447 (for respondent)

Judith L. Oakes, J. Oakes & Associates, Hamline Place, 2589C Hamline Avenue North, Roseville, MN 55113 (for appellant)

            Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            In this marriage dissolution appeal, appellant-husband Lyle Harold Tollefsrud challenges respondent-wife Mary Beth Tollefsrud, f/k/a Mary Beth Ramler's maintenance award and the division of his bonus.  We affirm in part and remand.  We deny husband's motion to strike and wife's motion for appellate attorney fees.

            The partially stipulated judgment dissolving the parties' marriage awarded wife maintenance, divided the parties' property, noted wife had incurred substantial attorney fees, and directed husband to pay $10,000 of wife's attorney fees.  After posttrial motions, wife was awarded an interest in husband's fourth-quarter 2002 bonus, which was to be deemed either marital property or additional attorney fees.  Husband appeals.  Wife seeks attorney fees on appeal. 

D E C I S I O N

            1.         Husband challenges the amount and duration of wife's permanent maintenance award.  The standard for reviewing the discretionary decision to award maintenance is recited in Chamberlain v. Chamberlain, 615 N.W.2d 405, 409 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000).  We reject husband's argument that the findings on certain factors listed in Minn. Stat. § 518.552, subd. 2 (2002) are inadequate.  The judgment contains findings explicitly addressing the factors at issue, or findings on other subjects showing consideration of the factors at issue, or both.  We also reject husband's allegation that the finding of wife's reasonable monthly expenses includes improper expenses.  Husband's expense-related assertions are not adequately supported by the record or are not properly before this court or both.  See Minn. R. Civ. P. 52.01; Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); Clark v. Clark, 642 N.W.2d 459, 464 n.1 (Minn. App. 2002).  We further reject husband's assertion that the finding of wife's expenses are excessive because they exceed his expenses after his expenses were reduced to eliminate college expenses for an adult child.  A similar argument was rejected by the district court as "a disingenuous attempt to claim a 'modest' standard of living."  We defer to credibility determinations made by the fact-finder.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). 

2.         In the posttrial proceedings, 73/92 or 79% of husband's fourth-quarter 2002 bonus was ruled to be marital property and wife was awarded half of that marital property.  Husband argues that the use of the trial date to value the bonus was not supported by adequate findings of fact.  Property acquired by a spouse during the marriage relationship but before the valuation date is presumed to be marital property.  Minn. Stat. § 518.54, subd. 5 (2002).  The presumptively appropriate date for valuing marital property is the initially scheduled prehearing conference, unless another date is found to be "fair and equitable."  Minn. Stat. § 518.58, subd. 1 (2002).  Whether to alter the presumptively appropriate valuation date is discretionary with the district court.  Grigsby v. Grigsby, 648 N.W.2d 716, 720 (Minn. App. 2002).

Here, the posttrial order states (a) wife's "reasonable" attorney fees "exceeded $70,000"; (b) it was "obvious" that, at trial, husband "was not [] candid" regarding the bonus; (c) husband "has and had" the ability to pay attorney fees to wife, "whether in the nature of an additional property award from the fourth quarter bonus for the year 2002[,] or directly"; (d) the effect of awarding wife half of the marital portion of the bonus is "nearly the same" as if she were awarded the attorney fees she requested; and (e) if wife had not received attorney fees and not received a portion of the bonus, her attorney fees would have "seriously depleted her property award."  Because the record supports these findings, it is equitable to value the bonus as of trial, and we will not alter the use of that date to value the bonus. 

            Husband argues that awarding wife an interest in the bonus was inconsistent with a stipulation identifying the issues to be litigated and the assets to be divided.  But for husband's lack of candor regarding the bonus however, the bonus issue would have been fully considered at trial.  Property omitted from consideration in a dissolution judgment can be identified, valued, and divided after a dissolution is otherwise final.  Neubauer v. Neubauer, 433 N.W.2d 456, 461 (Minn. App. 1988), review denied (Minn. Mar. 17, 1989).  Thus, we affirm the current resolution of the bonus issue because it avoids subsequent proceedings on the subject.  We also reject husband's argument that the record was insufficient to allow the division of the bonus.  That 73/92 of the bonus was marital property is consistent with the facts that a quarter of a year is about 92 days and that, as of the December 12 trial, there were 19 days left in the fourth quarter of 2002. 

3.         Husband also argues that the award to wife of a share of his bonus is defective because it was in the nature of an attorney-fee award but was not supported with the required fee-related findings.  The findings state that wife's fees were reasonable, that not awarding fees would have "seriously depleted [wife's] property award," and that husband "has and had the ability to pay the fees to [wife]."  These findings adequately address the statutory factors for a need-based fee award set out in Minn. Stat. § 518.14, subd. 1 (2002).  But the portion of the bonus awarded to wife plus the prior fee award exceed wife's attorney fees.  Also, while the majority of wife's non-bonus property award cannot be invested because it is retirement assets or is not liquid or is otherwise unavailable, some of the non-bonus property award may be available for investment.  Therefore, we remand for a determination of (a) the amount wife can reasonably be expected to earn on the portion of her non-bonus property award that is able to be invested and on the portion of her bonus-related property award that exceeds her attorney-fee obligation; and (b) any necessary adjustment to wife's maintenance award.  See Minn. Stat. § 518.552, subd. 2(a) (stating maintenance is to be awarded in light of property award); Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985) (noting income generated by maintenance recipient's liquid assets is to be considered when determining need for maintenance).

Husband argues that wife's share of his fourth-quarter 2002 bonus was overstated.  Wife argues that because she did not receive any of husband's third-quarter 2002 bonus, she should not be responsible for associated taxes.  In light of the size and division of the marital estate, as well as the likely magnitude of these alleged errors, we decline to remand on these points.  See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis error in child support); see also Minn. R. Civ. P. 61 (requiring harmless error to be ignored).

4.         Husband moves to strike two sentences from wife's brief, alleging they misrepresent a ruling being appealed.  Because we reviewed the issue based on the file rather than on wife's characterization of the ruling, we deny husband's motion to strike as unnecessary.  Also, we need not address the portion of husband's motion to strike that was withdrawn at oral argument.  Nor, in light of our disposition of the issues above, do we need to address the issues wife raised by notice of review.  Wife's motion for attorney fees on appeal is denied. 

            Affirmed in part and remanded; motions denied.