In re the Marriage of: Annikka Marie Erickson, petitioner, Respondent, vs. Michael Wallace Erickson, Appellant.

In re the Marriage of: Annikka Marie Erickson, petitioner, Respondent, vs. Michael Wallace Erickson, Appellant. A05-7, Court of Appeals Unpublished, September 20, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-7

 

In re the Marriage of:

Annikka Marie Erickson, petitioner,

Respondent,

 

vs.

 

Michael Wallace Erickson,

Appellant.

 

Filed September 20, 2005

Affirmed Willis, Judge

 

Ramsey County District Court

File No. F7-02-001568

 

David J. Van House, Cameron R. Kelly, Van House & Associates, P.A., 200 Village Center Drive, Suite 800, North Oaks, MN  55127 (for respondent)

 

Steven H. Berndt, Zappia & LeVahn, Ltd., 941 Hillwind Road Northeast, #301, Minneapolis, MN  55432 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

In this marital-dissolution proceeding, appellant argues that the district court (1) abused its discretion by ordering him to provide respondent with ongoing health-insurance coverage after respondent waived her rights to seek future modification of spousal maintenance as part of a partial stipulation; and (2) clearly erred by determining that the transfer of funds into an investment account was a marital gift to the parties.  We affirm. 

FACTS

In October 2002, respondent Annikka Marie Erickson petitioned for dissolution of her marriage to appellant Michael Wallace Erickson.  Before the dissolution hearing in April 2004, the parties reached a number of "areas of agreement," stipulating to all but a few issues, which remained in dispute.  One of the agreements the parties reached was that appellant would pay respondent $24,000 in consideration of her waiver of spousal maintenance.  The parties also agreed that respondent "could never come back into court and seek additional or supplemental spousal maintenance."  Two of the issues on which the parties were unable to agree were the division of the parties' Fidelity investment account into which funds were transferred by appellant's stepfather, Paul Beecroft; and respondent's claim for ongoing health-insurance coverage.

At the dissolution hearing, the parties made a brief record of the stipulated issues and then presented evidence only on the Fidelity-account issue.  At the conclusion of the hearing, the district court took the disputed issues under advisement, requesting further submissions on, among other things, the health-insurance issue.

In July 2004, the district court made findings regarding the disputed issues.  The district court concluded that appellant "shall continue to provide medical insurance coverage for [respondent] under his current or future plan through his employment, or union, until such time as [respondent] has medical insurance coverage available to her through her employment or union."  The district court also concluded that the Fidelity account was a gift and ordered the parties to "equally divide the principle sum existing in the ‘Fidelity Account,' . . . plus any increase in value due to dividends and/or interest accumulated since then."  The district court then incorporated the contents of its July order into its final judgment, issued in August 2004.

Appellant moved for amended findings and conclusions or, alternatively, a new trial.  The district court denied appellant's motions but amended its order for ongoing health-insurance coverage "to include a provision that in the event [respondent] obtains a position through which health insurance . . . becomes available, she is to notify [appellant] within five (5) days," and appellant's "obligation . . . shall terminate."  This appeal follows.

D E C I S I O N

I.

            Appellant first challenges the district court's order requiring him to provide respondent with ongoing health-insurance coverage.  He argues that because respondent waived her right to spousal maintenance, the district court is divested of its jurisdiction over spousal maintenance, including respondent's claim for ongoing health-insurance coverage.  We review a district court's spousal-maintenance award under an abuse-of-discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  But whether a district court has divested itself of jurisdiction over future modification of spousal maintenance is a question of law, which we review de novo.  Miller v. Miller, 469 N.W.2d 483, 487 (Minn. App. 1991), review denied (Minn. July 31, 1991).

Spousal maintenance may include an order for ongoing health-insurance coverage.  Hughes v. Hughley, 569 N.W.2d 534, 536 (Minn. App. 1997) (citing Minn. Stat. § 62 A. 21, subd. 2a).  And parties may "expressly preclude or limit modification of maintenance through a stipulation."  Minn. Stat. § 518.552, subd. 5 (2004).  But an agreement by the parties does not divest the district court of jurisdiction; it is the "district court's independent exercise of its own authority" that divests the court of jurisdiction over maintenance.  Miller, 469 N.W.2d at 487.  In exercising its authority, a district court may "refuse to accept the terms of the stipulation in part or in toto."  Karon v. Karon, 435 N.W.2d 501, 503 (Minn. 1989). 

Here, although the district court incorporated into its judgment and decree the parties' stipulation divesting the district court of its jurisdiction to modify the spousal-maintenance award, the district court specifically concluded that appellant must continue to provide respondent with ongoing health-insurance coverage.  The district court supported this conclusion by finding that (1) respondent's gross monthly income is $600 and that she has no health insurance, and (2) appellant's gross monthly income is $3,463.  In addition, the district court specifically found that the parties' stipulation did not resolve respondent's claim for ongoing health-insurance coverage.  Despite the parties' agreement that respondent waived her right to spousal maintenance, we conclude that the district court did not divest itself of its jurisdiction over the issue of respondent's health-insurance coverage.

            Alternatively, appellant claims that the district court's order for health-insurance coverage was "specifically linked" to respondent's claim that appellant infected her with a sexually transmitted disease (STD).  An order for spousal maintenance shall be determined "without regard to marital misconduct."  Minn. Stat. § 518.552, subd. 2 (2004).  The dissolution decree merely states that respondent "claims to have contracted a sexually transmitted disease from [appellant]"; that she "claims to be permanently disabled as a result of the same"; and that these "claims are not being released herein."  The district court did not conclusively find that appellant infected respondent with an STD, nor did it "link" its order for health-insurance coverage to respondent's claim.  We therefore conclude that appellant's claim that the district court's order for ongoing health-insurance coverage is based on alleged marital misconduct is without merit.

Appellant argues finally that any authority that the district court may have had to order health-insurance coverage for respondent was statutorily limited.  The duration of ongoing health-insurance coverage "shall be continued until . . . the date the insured's former spouse becomes covered under any other group health plan; or . . . the date coverage would otherwise terminate under the policy," whichever occurs earlier.  Minn. Stat. § 62 A. 21, subd. 2a (2004).  And the district court must order ongoing health-insurance coverage "if it is available at no additional cost to the obligor."  Minn. Stat. § 518.171, subd. 2 (2004).  But appellant does not argue that respondent has coverage under another policy or that coverage has terminated under his current policy, nor does he argue that continued coverage is an additional cost to him.  He merely asserts that "not to include these two specific provisions means that the trial court has erroneously exceeded its statutory authority to award future health insurance to respondent." 

Appellant conceded at oral argument that continued coverage of respondent under his policy was not an additional expense for him, and the district court specifically amended its order for ongoing health-insurance coverage to comply with section 62 A. 21, subd. 2a.  Neither statute limits a district court's authority to order ongoing health-insurance coverage, and we conclude that there is no merit to appellant's claim otherwise.

Because the district court did not divest itself of its jurisdiction over the issue of respondent's health-insurance coverage and because appellant's other arguments are without merit, we conclude that the district court did not abuse its discretion by ordering appellant to provide respondent with ongoing health-insurance coverage.

II.

Appellant next argues that the district court clearly erred by determining that the Fidelity account was a gift and, therefore, marital property.  The question of whether property is marital or non-marital is a question of law, however, we defer to the district court's findings of fact.  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).  But "if we are left with the definite and firm conviction that a mistake has been made, we may find the trial court's decision to be clearly erroneous, notwithstanding the existence of evidence to support such findings."  Id. (quotation omitted).  We also defer to the district court's credibility determinations. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000). 

            Property obtained during a marriage is presumed to be marital property.  Olsen, 562 N.W.2d at 800.  A gift made to both spouses together is considered marital property.  Id.  Generally, to make a valid gift transfer, "the donor must intend to make a gift, the property must be delivered and the donor must absolutely dispose of the property."  Id.  "Questions of intent are fact questions."  Id.  Appellant bears the burden of showing by a preponderance of the evidence that the Fidelity account is a non-marital asset.  See id. 

Appellant argues that "without an intent to make a gift and relinquishment of control, the Fidelity account was not a marital asset."  Appellant's stepfather, Paul Beecroft, established the Fidelity account in the parties' names and transferred funds into the account.  Even though the parties made no contributions to or withdrawals from it, they had full access to the account and reported income in the account on their tax returns.  Appellant conceded at the dissolution hearing that if the district court determined that the investment account was a gift, then it was a gift to both parties. 

Although Beecroft testified that the Fidelity account was a loan rather than a gift, the district court found that Beecroft's claim "was somewhat tainted by the fact that the parties were then divorcing, and Mr. Beecroft knew it."  The district court also noted that "‘parking' an asset in another's name, without transfer of ownership, for the purpose of having the asset taxed at the lower rate of the recipient, may constitute tax fraud."  The district court determined that the transfer was a gift because "surely neither Mr. Beecroft nor the parties effectuated the transfer of assets under consideration for any unlawful purpose." 

The district court discredited testimony suggesting that the Fidelity account was a loan rather than a gift and found that Beecroft intended the transfer to be a gift.  Because we defer to the district court's credibility determinations and findings of fact, we conclude that the district court did not clearly err by determining that the Fidelity account was a gift and, therefore, a marital asset.

III.

            Finally, respondent asks for attorney fees on appeal, arguing essentially that because appellant has already pursued the issues raised on appeal in his motion for amended findings and because the district court did not find in his favor, appellant's arguments on appeal are "duplicitous and disingenuous" and respondent should be awarded attorney fees.  But generally, only issues that have been raised before and considered by the district court are appropriate for appellate review.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  In any event, a request for attorney fees on appeal must be made by separate motion, and respondent has not made such a motion here.  See Minn. R. Civ. App. P. 139.06, subd. 1 (requiring a separate motion to be filed along with sufficient documentation to calculate attorney fees).

Affirmed.