Joanne K. Neumann, n/k/a Joanne K. Loth, petitioner, Respondent, vs. Mark J. Neumann, 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This opinion will be unpublished and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

A04-240

 

 

Joanne K. Neumann, n/k/a Joanne K. Loth, petitioner,

Respondent,

 

vs.

 

Mark J. Neumann,

Appellant.

 

 

Filed September 7, 2004

Affirmed in part, reversed in part; motion denied

Parker, Judge*

 

 

Hennepin County District Court

File No. DC-265-993

 

 

Nancy Zalusky Berg, William D. Casey, Katherine A. Godden, Walling, Berg & Debele, P.A., 121 South Eighth Street, Suite 1100, Minneapolis, MN  55402 (for respondent)

 

Lateesa T. Ward, Cassandra K. Ward Brown, Ward & Ward, L.L.C., Carriage House, 2520 Park Avenue South, Minneapolis, MN  55404 (for appellant)

 

            Considered and decided by Wright, Presiding Judge; Kalitowski, Judge; and Parker, Judge.

U N P U B L I S H E D  O P I N I O N

PARKER, Judge

On appeal from the judgment dissolving the parties' marriage, appellant Mark Neumann challenges the district court's determinations on custody, parenting time, imputation of income, support, maintenance, property division, and attorney fees.  Appellant also argues that the district court was biased against him and should have recused.  We affirm in part, reverse in part, and deny appellant's motion for attorney fees on appeal.

D E C I S I O N

1.         Custody

Appellant first argues that the district court's custody award was an abuse of discretion.  This court's "review of custody determinations 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) (quotation omitted).  Determinations of child custody must be based on the best interests of the child.  Minn. Stat. § 518.17, subd. 3(a)(3) (2002).  When considering the best interests of the child, the district court must make detailed written findings that reflect the court's consideration of factors set forth in Minn. Stat. § 518.17, subd. 1(a).  Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).  The district court's findings of fact will "not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses."  Minn. R. Civ. P. 52.01. 

Specifically, appellant argues that the record does not support the court's finding that he endangered H.N.  The district court awarded respondent sole physical and legal custody of H.N., after addressing each best interests factor under Minn. Stat. § 518.17, subd. 1(a) (2002).  The court considered the report and testimony of the custody evaluator, who the parties stipulated to perform the custody evaluation, as well as testimony from respondent and appellant's own witnesses.  Based on this information, the district court concluded that appellant could not separate H.N.'s educational, social, psychological, and emotional needs from his own and that "unfettered parenting time with [appellant] is likely to endanger [H.N.'s] emotional health or impair her emotional development."  The court did not find that appellant endangered H.N.  Instead, the district court determined that, without limiting visitation, appellant was likely to endanger her.

The court agreed with the custody evaluator's assessment that appellant had an unhealthy dependence on H.N.  The district court found that "[appellant] has continually sought improper comfort from the child by sleeping in the same bed, including her in his bathing functions and seeking most, if not all, of his emotional support from [H.N]."  The court also determined that appellant had "disobeyed" appellant's witness, Dr. Taborn, "in the hopes of serving his own interests" by bringing H.N. to Dr. Taborn's office after he was specifically instructed not to do so.  The district court also found that appellant had confused his relationship with Dr. Sipes, another witness for appellant, because Dr. Sipes was merely a friend from church and not qualified to testify about the custody evaluation process.  The court determined that these were all examples of "[appellant's] confusion about boundaries and appropriate roles."

Furthermore, the district court concluded that respondent was the primary caretaker and possessed a greater ability to provide love, affection, and stability for H.N.  The court found that although the parties were willing to use mediation, they were unable to reach any kind of agreement regarding H.N.  The record before the district court, as we have reviewed it, supports the custody award.

2.         Parenting time

Appellant also argues that the district court should not have restricted his parenting time.  The district court is 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 (2002).  The court has broad discretion in deciding visitation questions and will not be reversed absent an abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  A district court's findings of fact, on which a visitation decision is based, will be upheld unless clearly erroneous.  Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978); Crosby v. Crosby, 587 N.W.2d 292, 295 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). 

With regard to parenting time, the district court stated that:

Unfettered parenting time with [appellant] is likely to endanger [H.N.'s] emotional health or impair her emotional development.  Until [appellant] demonstrates cognitive understanding of the issues and concerns expressed by Dr. Irvin or until [H.N.] is old enough to set boundaries for herself with [appellant], his parenting time access will be restricted as to time and duration.

 

The court stated that appellant would have access to H.N. on two nights during the week for three hours.  Appellant was also given visitation with H.N. on one day during the weekend from 9:00 a.m. to 6:00 p.m.  Although the district court ordered that appellant would have no "overnights" with H.N., the court awarded appellant additional parenting time as agreed to by the parties and gave appellant parenting time on alternating holidays.  The parenting time schedule is consistent with the court's concern that appellant's emotional dependence on H.N. could have a detrimental effect on the child.  It is also consistent with the district court's determination that appellant is unable to set appropriate boundaries with H.N.  The record overwhelmingly supports the district court's determination on parenting time, and we affirm the court's limitations.

3.         Imputation of income

Appellant argues that the imputation of income to him was improper because the record does not support the district court's determination that he was voluntarily unemployed.  Where a support obligor is voluntarily underemployed, the court "shall" impute income to the obligor.  Minn. Stat. § 518.551, subd. 5b(d) (2002).  Findings of income are findings of fact and not set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  Further, appellate courts defer to district court 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 a court is not required to believe even uncontradicted testimony if there are reasonable grounds to doubt its credibility).

            Appellant works in the area of information technology.  After concluding that appellant was voluntarily underemployed, the court set appellant's net monthly income at $3,220, based on his earnings at his last place of employment.  Appellant asserted the argument that there was a market decline for employment in the area of information technology, due to the September 11, 2001, terrorist attacks on the United States.  But neither side presented experts to testify about the job market in the area of information technology.  There is a dispute in the record regarding the circumstances of appellant's refusal to sign a noncompete agreement with his last employer, which resulted in his termination.  Apart from this dispute, the fact remains that appellant found employment in the post-attack market and then failed to keep it.  Appellant's failure to maintain employment does not coincide with his argument that the job market is the cause of his unemployment.  The district court also found it curious that appellant had devoted a considerable amount of time and energy to finding employment but yielded no results.  The court determined that appellant failed to utilize assistance from temporary employment placement agencies.  Based on this information, the district court concluded that appellant's testimony was not credible.  We conclude that it was within the court's discretion to make this determination.  Minn. R. Civ. P. 52.01 (stating that "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses").  The findings support the district court's decision to impute income to appellant.

4.         Child support

Appellant argues that the child support obligation was based on the court's defective finding of imputed income.  A district court has broad discretion to provide for the support of the parties' children.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).  A district court 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 the record); Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998) (improper application of the law). 

Appellant argues that he presented evidence that he had no income other than unemployment benefits, which were scheduled to terminate.  The district court imputed a net monthly income of $3,220, and set appellant's monthly child support obligation at $805, the guidelines amount for that income.  The court noted appellant's failure to maintain or find employment and determined that appellant's testimony regarding income was not credible.  The district court was entitled to make this determination.  See Sefkow, 427 N.W.2d at 210 (stating that "deference must be given to the opportunity of the trial court to assess the credibility of the witnesses").  Given the court's finding of imputed income, and the amount of his child support obligation, appellant has enough income to support himself and to pay child support.  It was within the district court's discretion to order appellant to pay child support to respondent.

            5.         Spousal maintenance

Appellant also argues that the court's denial of spousal maintenance was based on the court's defective imputation of income.  The district court has broad discretion in deciding whether to award maintenance and in determining its duration and amount.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  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.  Id. at 39-40.  Absent an abuse of its "wide discretion," a district court's maintenance award "is final."  Id. at 38.  A district court abuses discretion by making findings unsupported by the record or by improperly applying the law.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997) (quoting Sefkow, 427 N.W.2d at 210).

Maintenance is defined as a payment from a party's future income or earnings.  Minn. Stat. § 518.54, subd. 3 (2002).  Here, both parties requested spousal maintenance.  The district court concluded that "[e]ach party is capable of self-support and neither party is entitled to temporary or permanent spousal maintenance."  The court based its decision to deny the parties' spousal maintenance on appellant's imputed net monthly income of $3,220 and respondent's net monthly income of $3,839.64.  As stated before, the district court imputed appellant's income based on his failure to maintain employment and his ineffective attempts to obtain employment.  Again, it was within the court's discretion to find that appellant's testimony regarding income was not credible.  See Minn. R. Civ. P. 52.01.  Further, each party received a substantial amount of property under the dissolution judgment.  The record supports the district court's denial of spousal maintenance to each party.

6.         Parties' home

Appellant next argues that the district court abused discretion by ordering appellant to buy out respondent's interest in the home or sell the home within 30 days after the date of the judgment.  District courts have broad discretion over the division of marital property, and appellate courts will not alter a district court's property division absent a clear abuse of discretion or an erroneous application of the law.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000).  Minn. Stat. § 518.58, subd. 3 (2002), provides that:

If the court finds that it is necessary to preserve the marital assets of the parties, the court may order the sale of the homestead of the parties or the sale of other marital assets, as the individual circumstances may require, during the pendency of a proceeding for a dissolution of marriage or an annulment. If the court orders a sale, it may further provide for the disposition of the funds received from the sale during the pendency of the proceeding.

 

The district court ordered the immediate sale of the home because the court determined that appellant had failed to preserve the premises.  The court found that appellant failed to pay the homeowner's insurance and property taxes on the residence.  The court also found that selling the home would not have a negative impact on H.N.  Appellant maintains that the district court's ruling is against logic because he is now homeless.  But the record supports the court's findings, and appellant fails to provide any evidence to contradict them.  Because the homeowner's insurance had expired and the property taxes on the home were delinquent, it was reasonable and within the scope of discretion for the court to order appellant to buy out respondent's share of the home or sell the home within 30 days after the date of the judgment.

7.         Division of assets

Appellant also argues that the district court's division of assets is vague and confusing.  Appellant first argues that the court improperly divided the parties' marital assets.  The district court must make "just and equitable" divisions of marital property.  Minn. Stat. § 518.58, subd. 1 (2002).

It appears that the district court allowed each party to keep the marital property accounts then in their respective names.  Although the district court's property award was not mathematically equal, given the circumstances of the parties, the award was not an abuse of discretion and constituted an equitable division.  See Riley v. Riley, 369 N.W.2d 40, 43 (Minn. App. 1985) (stating that an equitable division of marital property is not necessarily an equal division), review denied (Minn. Aug. 29, 1985).

Appellant next argues that the district court improperly awarded respondent half of three of his nonmarital accounts.  "Whether property is marital or nonmarital is a question of law, but a reviewing court must defer to the trial court's underlying findings of fact."  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).  All property obtained by either spouse during the marriage is presumed to be marital property.  Minn. Stat. § 518.54, subd. 5 (2002).  "To overcome the presumption that property is marital, a party must demonstrate by a preponderance of the evidence that the property is nonmarital."  Olsen, 562 N.W.2d at 800 (citation omitted); see also Minn. Stat. § 518.54, subd. 5.  For property to retain its nonmarital character, it must be kept separate from marital property or be readily traceable to an identifiable nonmarital asset.  Olsen, 562 N.W.2d at 800.   Further, severe disparity between the parties is required to sustain a finding of hardship and to apportion nonmarital property.  Ward v. Ward, 453 N.W.2d 729, 733 (Minn. App. 1990), review denied (Minn. June 6, 1990).  

We reverse the district court's award to respondent regarding three of appellant's nonmarital accounts.  Although the court was attempting to make the property division equal, the parties stipulated at trial that the three specific accounts at issue were appellant's nonmarital property.  As appellant points out, the district court failed to find that respondent suffered any hardship requiring an award of nonmarital property.  Therefore, we reverse the court's award to respondent of appellant's three nonmarital accounts, in the sums of $1,514.35, $8,785.89, and $1,250 respectively. 

8.         Attorney fees

Appellant argues that the district court abused discretion by awarding respondent 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. Feb. 18, 1999). 

There are two bases for the award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2002).  First, attorney fees shall be awarded if the district court finds that (1) the fees are necessary for the good-faith assertion of the party's rights; (2) the party from whom fees, costs, and disbursements are sought has the means to pay them; and (3) the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.  Id.  The district court also may award additional conduct-based attorney fees against a party who unreasonably contributes to the length or expense of the litigation.  Id.; Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001).  But the district court must make findings regarding need-based and conduct-based attorney fees to permit meaningful appellate review.  Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992); In re Marriage of Richards, 472 N.W.2d 162, 166 (Minn. App. 1991).  The district court ordered appellant to pay respondent $5,000 in need-based attorney fees and $50,000 in conduct-based attorney fees.

(a)       Need-based attorney fees

The record supports the district court's award of $5,000 in need-based attorney fees.  The district court determined that appellant had the means to contribute to her attorney fees and costs, and respondent could not afford the $100,000 she incurred in attorney fees.  The amount of attorney fees is greatly burdensome and well established in the record.  The district court was within the scope of discretion in awarding $5,000 in need-based attorney fees to respondent.

(b)       Conduct-based attorney fees

The record also supports the district court's award of $50,000 in conduct-based attorney fees, which included $5,000 from a previous court order.  Specifically, the court found that appellant  (1) failed to answer respondent's discovery requests; (2) answered respondent's discovery requests with a "harassing and obstreperous" attitude; (3) delayed the process by requesting additional time to contest evaluation and to hire a series of his own experts; (4) failed to timely find substitute counsel which caused a continuance of the first trial date and unnecessary trial preparation and witness fees; (5) interrupted respondent's case in chief on several occasions to introduce intervening witness testimony; (6) served respondent with "voluminous and repetitive discovery requests" in the last days of trial, causing added cost and delay; (7) offered numerous "improperly timed and inappropriate motions, arguments, and requests" before the court; (8) "squandered" the court's time by his purported effort to make a record; (9) delayed the trial by "inefficient and duplicative case presentation;" and (10) proceeded with monologue after the court denied his requests for relief. 

Appellant argues that because the district court judge and his attorney had acrimonious exchanges throughout the proceedings, the judge improperly charged him with the consequences.  The evidence shows that a great amount of time was spent on peripheral matters by repeated motions and interruptions during respondent's case in chief.  In fact, the district court and opposing counsel gave appellant considerable leeway by allowing appellant and his attorney to call witnesses to testify during respondent's case in chief due to appellant's witnesses' scheduling conflicts.  We conclude that there is no evidence that the district court was "grossly unfair" to appellant.

Although appellant argues that he "clearly cannot afford" to pay the award, this argument is meritless given the language of the statute.  See Geske, 624 N.W.2d at 818 (stating that conduct-based 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") (citation omitted).  The district court made findings sufficient to support the award and did not abuse his discretion in ordering appellant to pay respondent conduct-based attorney fees.   

(c)        Motion for attorney fees

Appellant moves for attorney fees on appeal.  Appellant asserts that he is unemployed and that respondent has significant financial resources that would enable her to pay his attorney fees.  He also contends that respondent unreasonably contributed to the expense of the proceedings "and freely introduced error into the record," knowing that the trial judge "was biased against [a]ppellant and was showing favoritism toward [r]espondent throughout the proceedings." 

The supporting documentation submitted with the motion claims attorney fees of more than $34,000.  But much of the documented time was spent on district court proceedings, months before this appeal was even filed.  The request also includes more than $6,600 in "costs," many of which would not be taxable even if appellant were to prevail on the merits.  Accordingly, we deny appellant's motion.

9.         Judicial bias

Finally, appellant argues that the district court was biased against him and should have recused himself.  Specifically, appellant argues that the court failed to address his requests for relief, made adverse rulings against him, and treated him and his attorney with disrespect.  After the court made the initial order in this matter, appellant moved for an order of recusal to have another judge consider the case.  The district court denied this motion, concluding, among other things, that the rulings were "in no way unfair to [appellant]."  Throughout the course of the proceedings, appellant made several motions requesting that the district court judge recuse himself.  These were denied because, in each instance, the court determined that there were no valid grounds on the merits to grant them.

Whether a district court judge should recuse based on allegations of actual prejudice is within his or her discretion.  Durell v. Mayo Found., 429 N.W.2d 704, 705 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988).  A judge may be removed only for an "affirmative showing of prejudice" on the part of the judge, and the showing of prejudice must demonstrate bias of the type that would disqualify a juror.  Minn. R. Civ. P. 63.03.  A judge must exhibit bias or prejudice stemming from an extra-judicial source and resulting from an opinion on the merits on some basis other than what the judge learned from participation in the case in order to be disqualifying.  In re Estate of Lange, 398 N.W.2d 569, 573 (Minn. App. 1986).

Nothing in the record supports appellant's contentions.  Most of appellant's concerns seem to focus on the court's rulings against him.  Appellant complains that the rulings were overwhelmingly favorable to respondent, but this is not indicative of bias.  See Olson v. Olson, 392 N.W.2d 338, 341 (Minn. App. 1986) (stating that merely "[p]rior adverse rulings" cannot independently constitute bias) (citation omitted).  Also, the court granted appellant a continuance for trial and allowed appellant to interrupt respondent's case in chief to present testimony of his witnesses.  The trial judge appears to have decided each dispute on the merits, and this court cannot attempt to "keep score."

After reviewing the record, the district court judge's findings are supported by the record.  This court gives broad discretion to the district court because the court is in the best position to weigh the evidence and determine which witnesses are credible.  See In re D.L., 486 N.W.2d 375, 380 (Minn. 1992) (stating that "the trial court retains broad discretion because of its opportunity to observe the parties and hear the witnesses").  We find no evidence to indicate that the trial court's findings constitute bias against appellant.  Furthermore, the court may, during the proceedings, form unfavorable opinions of parties' actions, and this may be necessary to reach a decision.  See Liteky v. United States, 510 U.S. 540, 550-51, 114 S. Ct. 1147, 1155 (1994) (district court judge may "be exceedingly ill disposed towards" a party, but not recuse for bias since opinions were properly formed at trial and are sometimes "necessary to completion of the judge's task").  The district court did not abuse discretion by refusing to recuse from the case. 

Affirmed in part, reversed in part; motion denied.

 

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