In re the Marriage of: Andrea Dore Trimble Hart, f/k/a Andrea Dore Trimble, Andrea Dore Clark, petitioner, Respondent, vs. Darrell Bradford Hart, Appellant.

In re the Marriage of: Andrea Dore Trimble Hart, f/k/a Andrea Dore Trimble, Andrea Dore Clark, petitioner, Respondent, vs. Darrell Bradford Hart, Appellant. A06-243, Court of Appeals Unpublished, March 13, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-243

 

In re the Marriage of:

 

Andrea Dore Trimble Hart,

f/k/a Andrea Dore Trimble,

Andrea Dore Clark, petitioner,

Respondent,

 

vs.

 

Darrell Bradford Hart,

Appellant.

 

Filed March 13, 2007

Affirmed as modified; motion granted Hudson, Judge

 

 

Hennepin County District Court

File No. DC 294329

 

Jill A. Poppe MacKenzie, Jill A. Poppe Mackenzie, P.A., 7767 Elm Creek Boulevard, Suite 300, Maple Grove, Minnesota 55369 (for respondent)

 

Jane Binder, Christine Howard, Becky Rooney, Binder Law Offices, P.A., 700 Rand Tower, 527 Marquette Avenue, Minneapolis, Minnesota 55402 (for appellant)

 

            Considered and decided by Hudson, 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

HUDSON, Judge

            In this marriage-dissolution proceeding, appellant challenges the district court's property distribution arguing that the district court abused its discretion because it (1) made no specific finding that appellant inappropriately transferred or encumbered marital assets under Minn. Stat. § 518.58, subd. 1a (2004); (2) incorrectly valued the parties' 2004 income-tax refund; and (3) improperly double-counted certain assets.  Because the district court did not abuse its discretion by distributing the marital estate as it did, but clearly erred in computing the value of the parties' 2004 income-tax refund, we affirm as modified.  Further, we grant appellant's motion to strike portions of respondent's brief and appendix.

FACTS

Respondent Andrea Dore Trimble Hart commenced this marriage-dissolution proceeding against appellant Darrell Bradford Hart.  The matter was tried to the district court.  The district court concluded that the marital assets included:  (1) the parties' 2003 and 2004 state and federal income-tax refunds; (2) the repayment to the parties of a $60,000 loan, the proceeds of which were intended to be used by the parties to pay down the mortgage on their homestead; and (3) $83,336 in the bank account of appellant's son from a previous relationship ("son's account").  The district court awarded significant marital assets to respondent, including the 2003 and 2004 tax refunds.  Likewise, the district court awarded significant marital assets to appellant, including the $60,000 loan repayment and the $83,366 in son's account.

The district court based its property distribution on several facts.  First, during these proceedings, appellant refused to comply with respondent's discovery requests, and due to his obstructionist behavior, the district court drew adverse inferences and likewise made findings adverse to appellant.  Specifically, the district court found that appellant's conduct "had a direct limitation on [respondent's] ability to track [appellant's] management of marital funds," and that appellant's "testimony regarding his assets is subject to question."  

The district court also found that, as advances on the marital estate, appellant had taken the parties' 2003 and 2004 state and federal income-tax refunds and ordered appellant to pay respondent an equivalent amount.  The district court valued the 2003 income tax refunds at $10,408; the state and federal tax refunds were deposited in the parties' joint account on March 16, 2004, and March 19, 2004, in amounts of $1,330 and $9,078, respectively.  According to respondent, the joint checking account was primarily used by appellant.  The district court valued the 2004 state and federal income-tax refunds at $13,900; but the record shows they were actually worth $11,049. 

The record further shows that in April 2005, four $10,000 checks were executed successively on son's account.  The district court found that appellant failed to account for the disposition of $40,000 withdrawn from son's account and that respondent was entitled to an inference that appellant had secreted these funds.

Finally, the district court found that appellant had taken the $60,000 loan repayment as an advance on the marital estate.  The record shows that on March 6, 2004, appellant deposited that $60,000 loan repayment in the parties' joint checking account.  Consistent with appellant's argument at trial, the district court awarded appellant the $60,000 loan repayment as well as the $83,336 remaining in son's bank account.  This appeal follows.  For the first time on appeal, appellant claims that the cash value of son's account represents the $60,000 loan repayment, and thus the district court erred by awarding appellant the same asset twice.

D E C I S I O N

I

            Appellant challenges the district court's property distribution ordering appellant to pay respondent the parties' 2003 state and federal income-tax refunds.  The district court is vested with broad discretion in its determination of the appropriate property division, and the district court's determination will not be disturbed absent an abuse of that discretion.  Lund v. Lund, 615 N.W.2d 860, 861 (Minn. App. 2000) (citing Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)).  An abuse of discretion will be found when the district court's decision "is against logic and the facts on the record."  Id.   

            Upon dissolution of a marriage, the district court "shall make a just and equitable division of the marital property."  Minn. Stat. § 518.58, subd. 1 (2004).  But when the court finds that a party to a dissolution proceeding has "transferred, encumbered, concealed, or disposed of marital assets except in the usual course of business or for the necessities of life, the court shall compensate the other party."  Minn. Stat. § 518.58, subd. 1a (2004).  In compensating the other party, the court may "impute the entire value of an asset . . . to the party who transferred, encumbered, concealed, or disposed of it."  Id.  The party claiming that the other transferred, encumbered, concealed, or disposed of marital funds has the burden of proof.  Id. 

            Appellant argues that the district court abused its discretion in its property distribution because (1) respondent failed to meet her burden of proving that appellant improperly used the funds; (2) the district court failed to make a finding that respondent improperly used the funds; and (3) the income-tax refunds were used to pay family necessities.  Appellant's arguments are unpersuasive. 

First, the district court found that appellant had taken the 2003 and 2004 income-tax refunds as advances on the marital estate.  In addition, the totality of the evidence showed that the district court believed appellant had been secreting funds.  Thus, the district court found that appellant "purposefully concealed the disposition" of $40,000, and that respondent was entitled to an inference that appellant had "secreted the funds."  See Solon v. Solon, 255 N.W.2d 395, 396 (Minn. 1977) (stating that failure to fully and accurately disclose assets justifies an inference adverse to the offending party).  Accordingly, respondent met her burden of proving that appellant improperly transferred or encumbered marital assets.  In addition, because of the adverse inference attributed to appellant by the district court, the court's findings sufficiently demonstrate that the district court believed and found that appellant had "transferred, encumbered, concealed, or disposed of marital assets," which is all that the statute requires.  See Minn. Stat. § 518.58, subd. 1a. 

            Second, we concur with the district court's determination that any deficiency in respondent's production of evidence is the product of appellant's obstructionist conduct, which the district court found hindered "[respondent's] ability to track [appellant's] management of marital funds."  This finding is amply supported by the record, which shows that appellant repeatedly refused to cooperate with respondent's discovery requests and disobeyed a district court order directing him to sign releases of financial information.

Third, this court has held that on appeal "a party cannot complain about a district court's failure to rule in [its] favor when one of the reasons it did not do so is because that party failed to provide the district court with the evidence that would allow the district court to fully address the question."  Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003), review denied (Minn. Nov. 25, 2003).  Here, appellant knew that his alleged use of the funds was at issue, yet he did not produce any evidence as to the disposition of the funds in question.  Appellant failed to rebut the district court's adverse inference based on its finding that he "secreted the funds" under Eisenschenk.

All of the district court's findings have ample support in fact and law.  The record shows that appellant deposited the 2003 income-tax refunds into the parties' joint account, subsequently made numerous transfers between the joint account and son's account, and withdrew $40,000 from son's account, which he has never accounted for.  Based on these facts, the district court could have concluded that the $40,000 included the 2003 income-tax refunds.  As such, it was within the district court's discretion to impute the benefit of the entire $40,000 withdrawal to him and order appellant to pay respondent an amount equal to the 2003 income-tax refund in order to effectuate a just and equitable property distribution. 

II

            Appellant argues that the district court erred by valuing the 2004 state and federal income-tax refunds at $13,900 instead of $11,049.  The valuation of an asset is a question of fact that will not be reversed unless clearly erroneous.  Lund, 615 N.W.2d at 861. 

            Here the record shows that $11,049 is the correct value for the 2004 state and federal income-tax refunds.  Respondent admits that a clerical error was made and that $11,049 is the proper amount.  Based on the record and respondent's concession, the district court's valuation is clearly erroneous and is hereby modified to $11,049.

III

Appellant also challenges the district court's property distribution awarding him the $60,000 loan repayment and the value of son's bank account ($83,336).  The district court's property distribution will not be disturbed absent an abuse of discretion.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000). 

Appellant argues that the district court awarded him the same asset twice because on the date of valuation, the funds in son's account included the $60,000 loan repayment.  But appellant did not present this argument to the district court.  Instead, at trial, appellant argued that the funds in son's account represented short-term, zero-percent-interest cash advances on appellant's credit cards, in addition to inheritance deposits and checks from friends and birthday and Christmas gifts.  Generally, appellate courts will consider "only those issues that the record shows were presented and considered by the trial court in deciding the matter before it."  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted).  In addition, litigants are generally bound on appeal by the theory or theories upon which issues were tried.  Cohen v. Cowles Media Co., 479 N.W.2d 387, 390 (Minn. 1992).  Thus, a party may not "obtain review by raising the same general issue litigated below but under a different theory."  Thiele, 425 N.W.2d at 582.

            Here, the record shows that appellant litigated the general issue of the source of the funds in son's account under a different theory than he now proffers; thus, the district court did not consider appellant's new "double counting" theory.  Accordingly, we will not consider it here on appeal.

            Affirmed as modified; motion granted.