Deborah Lynette Ortman, petitioner, Appellant, vs. Carl Russell Ortman, 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This opinion will be unpublished and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

A03-1876

 

Deborah Lynette Ortman, petitioner,

Appellant,

 

vs.

 

Carl Russell Ortman,

Respondent.

 

Filed July 20, 2004

Affirmed in part, reversed in part, and remanded;

motion denied at this time

Halbrooks, Judge

 

Lake County District Court

File No. F6-01-003

 

Patrick Dinneen, Wells Fargo Bank Building, Suite 103, 36 Shopping Center, Silver Bay, MN 55614 (for appellant)

 

Timothy A. Costley, Mitchel H. Costley, The Costley Law Firm, 609 First Avenue, P.O. Box 340, Two Harbors, MN 55616 (for respondent)

 

 

            Considered and decided by Halbrooks, Presiding Judge, Toussaint, Chief Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            In this dissolution proceeding, appellant Deborah Ortman argues that the district court failed to adequately explain its refusal to adopt certain aspects of the parties' stipulation, failed to properly value certain assets, should have ruled that her medical condition entitled her to maintenance from respondent Carl Ortman, and should have awarded her attorney fees.  We affirm in part, reverse in part, and remand.  We also deny appellant's request for attorney fees on appeal at this time.

FACTS

            The parties married in 1990 and separated in October 2000.  In January 2001, appellant stopped working due to a health-related disability.  In June 2001, she started receiving long-term disability benefits from her disability insurer.  In December 2001, she started receiving social security disability benefits, including a lump-sum payment.  In February 2002, appellant's disability insurer informed her that, because of her receipt of social security disability benefits, her disability insurance benefit was being reduced to $738.40 per month, that she had to reimburse the insurer $11,299.60 for prior overpayment of long-term disability benefits, and that the insurer would withhold the $738.40 monthly benefit "until lump sum reimbursement is received."  While the record is not clear regarding the details of appellant's reimbursement of her disability insurer, at trial appellant entered an exhibit stating that the amount due to the disability insurer was $6,361.68. 

            On October 6, 2003, the district court dissolved the parties' marriage.  Without having made posttrial motions, appellant appeals from the judgment, arguing that the court should have adopted the parties' stipulation regarding certain property, failed to value and divide certain marital property, and should have granted appellant's requests for maintenance and attorney fees.  Appellant also seeks attorney fees on appeal.

D E C I S I O N

            When there is no motion for a new trial, appellate courts can review substantive issues of law properly raised at trial as well as whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment.  Alpha Real Estate Co. v. Delta Dental Plan, 664 N.W.2d 303, 310 (Minn. 2003); Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976). 

I.

Appellant argues that the dissolution judgment does not explain why it does not incorporate the parties' stipulation that they would each, through qualified-domestic-relations orders, get one-half of the marital portion of each of their retirement accounts.  While the transcript shows that the parties agreed that they would each receive one-half of the value of the marital portions of their retirement accounts, it does not show that they agreed that the accounts themselves would be divided.  Absent an agreement to divide those accounts, there was no stipulation on the subject for the district court to adopt.  See Ryan v. Ryan, 292 Minn. 52, 55, 193 N.W.2d 295, 297 (1971) (noting settlement requires "a meeting of the minds on the essential terms of the agreement").  There was no error in the district court's refusal to adopt what appellant argues was an agreement to use qualified-domestic-relations orders to divide the parties' retirement accounts. 

II.

In dividing the marital property, the judgment awards household goods and furnishings to respondent and to appellant worth $2,000 and $15,000, respectively, and awards appellant a $26,150 equity-balancing payment, based in part on the difference in the values of the household goods and furnishings awarded to the parties.  Appellant challenges the valuation of the household goods and furnishings.  She also argues that the district court failed to adopt the parties' agreements regarding those assets and that their division of them would not affect the equity-balancing payment. 

The transcript shows possible inconsistencies in the parties' use of the terms "household goods and furnishings" and "personal property."  Thus, whether the parties had an agreement under Ryan regarding the household goods and furnishings is uncertain.  Also, even if the parties reached agreements on the household goods and furnishings and the impact of their division on the equity-balancing payment, such an agreement would not necessarily bind the district court.  See Karon v. Karon, 435 N.W.2d 501, 503 (Minn. 1989); Toughill v. Toughill, 609 N.W.2d 634, 638 n.1 (Minn. App. 2000).  In dissolving a marriage, the district court "shall" equitably divide the marital property.  Minn. Stat. § 518.58, subd. 1 (2002).  While a property division must be equitable, it need not be equal.  Thomas v. Thomas, 383 N.W.2d 727, 728 (Minn. App. 1986).  And a district court has broad discretion to divide marital property, meaning that its division will be affirmed if it has an acceptable basis in fact and principle even though the appellate court might have resolved the matter differently.  Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986).  Upon 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).  Here, the parties' ten-year marriage can be treated as a long-term marriage.  See Gales v. Gales, 553 N.W.2d 416, 421 (Minn. 1996).  Thus, the district court's attempt to equally divide the parties' marital property is consistent with caselaw. 

Regarding valuation of the household goods and furnishings, respondent concedes that the record lacks evidence to support the district court's valuations and, hence, a remand is necessary.  We appreciate respondent's candor and, in light of the ambiguity regarding the existence and extent of any agreement on the subject, we remand the questions of the valuation and division of the household goods and furnishings and the impact of those valuations and divisions on the equity-balancing payment. 

III.

Appellant challenges the valuations and division of a Chevrolet Suburban vehicle, certain lawn mowers, a pickup camper, and the parties' marital home.  The valuation of an asset is a finding of fact and will not be set aside unless clearly erroneous.  Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975); March v. March, 435 N.W.2d 569, 572 (Minn. App. 1989).  Appellate courts do not require the district court to be exact in its valuation of assets; it is "only necessary" that the valuation be "within a reasonable range of figures."  Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979).  Here, the record is sparse regarding the valuations of the Suburban, the lawn mowers, and the pickup camper.  Therefore, we remand for revaluation of these assets and for explanatory findings.  In light of the revaluations of these assets, as well as decisions on other remanded issues, the district court shall make any adjustments to the awards of these assets or the rest of the property division that are necessary to achieve the equitable division of marital property required by Minn. Stat. § 518.58, subd. 1. 

Appellant argues that the district court misvalued the parties' marital home because it valued the home as of the time of the parties' separation, rather than the initially scheduled prehearing conference, as suggested by Minn. Stat. § 518.58, subd. 1.  While the presumptively appropriate date for valuing marital property is the initially scheduled prehearing conference, another date can be used if the district court finds another date "fair and equitable."  Id.  Selecting a valuation date is discretionary with the district court.  Grigsby v. Grigsby, 648 N.W.2d 716, 720 (Minn. App. 2002), review denied (Minn. Oct. 15, 2002).  When, as here, no prehearing conference occurred, this court has affirmed use of the separation date as a valuation date, despite limited findings explaining the use of that date.  Derosier v. Derosier, 551 N.W.2d 507, 510 (Minn. App. 1996).  On this record, we conclude that the district court did not abuse its discretion in valuing the parties' marital home as of their separation. 

IV.

            Appellant challenges the district court's refusal to award her maintenance.  Respondent admits that appellant cannot work, but argues that he lacks the ability to pay maintenance.  Absent an abuse of the district court's "wide discretion" in setting maintenance, its "determination is final."  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  An abuse of discretion occurs if the district court resolves the matter in a manner that is "against logic and the facts on record."  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  An appellate court will not disturb a maintenance award if it has a "reasonable and acceptable basis in fact and principle."  DuBois v. DuBois, 335 N.W.2d 503, 507 (Minn. 1983).  While Minn. Stat. § 518.552 (2002) lists factors to be considered in setting the amount and duration of maintenance, no single factor is dispositive, and the issue is basically the recipient's need balanced against the obligor's financial condition.  Erlandson, 318 N.W.2d at 39-40.  Maintenance-related findings of fact are not set aside unless clearly erroneous.  McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989); see Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous).

            Part of appellant's argument that she should have been awarded maintenance is based on her assertions that respondent indicated that he could liquidate assets to pay maintenance.  But the comments to which appellant apparently refers were statements respondent made at trial when he stated that, if he needed funds to pay appellant, he might "have to sell [the house]."  An admission that the dissolution might create financial circumstances that would require respondent to sell the house if it were awarded to him is distinguishable from respondent volunteering to sell the house to pay maintenance.  Also, maintenance obligors are not generally required to liquidate assets to pay maintenance.  Zagar v. Zagar, 396 N.W.2d 98, 101 (Minn. App. 1986).

            Appellant contends that, under Safford v. Safford, 391 N.W.2d 548 (Minn. App. 1986), she is entitled to maintenance because of her doubtful health.  In Safford, this court affirmed a district court's decision to increase a temporary maintenance award and make it permanent where the maintenance recipient had a medical condition.  Id. at 550.  We did not discuss the obligor's ability to pay maintenance in Safford because that issue was not before us.  Id.; cf. Ganyo v. Engen, 446 N.W.2d 683, 687 (Minn. App. 1989) (affirming maintenance award that caused obligor's expenses to exceed his income).  Here, the district court found respondent's average net monthly income to be $2,000 and his reasonable monthly expenses to be "$2,000 to $2,500."  Thus, respondent lacks the ability to pay maintenance.  And the district court's denial of maintenance means that it has not approved a maintenance award causing respondent's obligations to exceed his ability to pay.  Thus, Safford is distinguishable. 

            Appellant argues that respondent was not forthcoming regarding his unemployment income, causing the district court to understate his earnings during the marriage, and that respondent could actually earn $45,000 per year.  But respondent's tax returns entered into evidence include unemployment income.  Respondent worked construction six to nine months a year throughout the marriage, drawing unemployment compensation the rest of the year.  The court's findings regarding respondent's income recognized these facts.  Additionally, the district court recognized that the $45,000 respondent earned in 2002 was the result of a one-time contract.  Appellant does not explain how the district court abused its discretion by declining to set a prospective maintenance obligation for respondent based on what was a one-time anomaly in his income that had no precedent or likelihood of continuing.  Cf. McCulloch, 435 N.W.2d at 566 (stating dependable bonuses are to be included in obligor's income for maintenance purposes); Lynch v. Lynch, 411 N.W.2d 263, 266 (Minn. App. 1987) (same), review denied (Minn. Oct. 30, 1987).

            To the extent that appellant argues that respondent is voluntarily underemployed, such an argument has little weight.  It is undisputed that respondent is working about the same number of hours as he did during the marriage, with the exception of 2002.  Therefore, he cannot be said to have decreased his income in a bad-faith attempt to avoid a maintenance obligation.  See Bourassa v. Bourassa, 481 N.W.2d 113, 116 (Minn. App. 1992) (noting standard for imputing income for maintenance purposes requires "underemployment in bad faith" to avoid payment of maintenance).[1]

V.

            The district court denied appellant's request for need-based attorney fees, stating that she has the ability to pay her own fees.  Appellant challenges this ruling.  A district court "shall" award need-based attorney fees if it finds that the fees are necessary for a good-faith assertion of rights, the payor has the ability to pay the fees, and the recipient does not.  Minn. Stat. § 518.14, subd. 1 (2002).  On appeal, appellant argues that the disparity in the parties' resources justifies awarding her need-based attorney fees.  But a mere disparity in resources is insufficient to allow an award of attorney fees.  Geske v. Marcolina, 624 N.W.2d 813, 817 n.2 (Minn. App. 2001).  Also, the findings regarding respondent's ability to support himself and his monthly obligations show that he lacks the ability to pay attorney fees.  Thus, regardless of appellant's ability to pay her own fees, the other statutory requirements for an entitlement to an award of need-based fees are not satisfied, and we will not reverse the district court on this issue. 

            The district court also denied appellant's request for conduct-based attorney fees.  "[I]n its discretion," a court "may" award "additional" conduct-based attorney fees "against a party who unreasonably contributes to the length or expense of the proceeding."  Minn. Stat. § 518.14, subd. 1.  Here, appellant sought conduct-based attorney fees because respondent requested numerous continuances and submitted proposed findings to the district court that were allegedly not supported by the record and because the district court's adoption of those proposed findings caused further delay and expense.  But the district court's judgment is not rendered fatally defective by either its treatment of the parties' findings proposed for unstipulated issues or its treatment of the parties' agreements.  Moreover, while the record does not support some of the findings, because we recognize that this was a close case, we will not reverse the district court's refusal to award conduct-based attorney fees. 

            Appellant also seeks attorney fees on appeal.  But she did not file a motion or the supporting documentation required by Minn. R. Civ. App. P. 139.06, subd. 1.  Nor did she cite authority for her request for fees.  Cf. Geske, 624 N.W.2d at 816 (noting importance of identifying basis for any fee awards).  Appellant's request for attorney fees on appeal is denied at this time.  See Minn. R. Civ. App. P. 139.06, subd. 1 (noting, generally, party seeking attorney fees on appeal must move for fees within time for taxing costs); Minn. R. Civ. App. P. 139.03 (allowing taxation of costs within 15 days of filing of decision). 

            On remand, whether to reopen the record shall be discretionary with the district court.

Affirmed in part, reversed in part, and remanded; motion denied at this time.

[1]We note that the district court's findings of appellant's ability to support herself and her reasonable monthly expenses suggest that she currently has a monthly deficit of between $567 and $1,067.  We also note that, in declining to award appellant maintenance, the district court stated that appellant would be able to approximate the marital standard of living by supplementing her social security income with "earnings from at least some of the assets awarded to her[.]"  But the only assets awarded to appellant were her retirement accounts, certain household goods and furnishings, and a $26,150 equity-balancing payment.  While the retirement accounts will earn interest, the current availability to appellant of those accounts was not addressed by the district court.  And it is self-evident that an equity-balancing payment of $26,150, which may be altered on remand, is insufficient to generate a net return sufficient to cover appellant's deficit.  While we are troubled by the district court's failure to at least reserve maintenance under these circumstances, our apprehension in this case is alleviated by two facts.  First, as noted, respondent lacks the ability to pay maintenance.  Second, upon completing reimbursement of her disability insurer, appellant will receive disability insurance benefits, which will increase her ability to support herself.