In re the Marriage of: John David Walker, petitioner, Appellant, vs. Barbara Jean Walker, Respondent.

In re the Marriage of: John David Walker, petitioner, Appellant, vs. Barbara Jean Walker, Respondent. A06-381, Court of Appeals Unpublished, February 6, 2007.

This opinion will be unpublished and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

A06-381

 

In re the Marriage of:
John David Walker, petitioner,
Appellant,
 
vs.
 
Barbara Jean Walker,
Respondent.

 

Filed February 6, 2007

Affirmed

Peterson, Judge

 

Ramsey County District Court

File No. F9-03-1100

 

Daniel J. Van Loh, Ramsay & DeVore, P.A., 450 Rosedale Towers, 1700 West Highway 36, Roseville, MN  55113 (for appellant)

 

Susan A. McKay, McKay & Perusee, L.L.C., Lake Calhoun Executive Center, 3013 Excelsior Blvd., Suite 10, Minneapolis, MN  55416; and

 

Rosalind B. Johnson, 2513 Cedar Hills Drive, Minnetonka, MN  55305 (for respondent)

 

            Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a marital-dissolution judgment and from an order amending findings and denying appellant-husband's motion for a new trial, husband argues that (1) the record does not support the district court's determination that funds that respondent-wife provided to make the down payment on the parties' homestead were not a gift from wife to husband; (2) the district court abused its discretion when it subtracted from his share of the marital interest in the homestead equity the amount needed to pay the remaining balance of the second-mortgage loan; and (3) the district court abused its discretion when it awarded him only $15,000 in additional marital property, rather than awarding him spousal maintenance.  We affirm.

FACTS

            The parties were married on July 27, 1996.  Appellant-husband John David Walker moved into respondent-wife Barbara Jean Walker's town home.  In April 1997, the parties purchased a home in husband's name.  To make the down payment on the home, wife provided $35,000 that she obtained by selling bonds that she owned before the marriage.  On March 27, 1997, wife signed a letter to the mortgage company, which stated: "This letter is to confirm that I am giving John D. Walker . . . a monetary gift of $35,000.  This gift does not require repayment at any time."  At trial, wife testified that she did not intend the $35,000 to be a gift. 

            In June 1998, husband obtained a $40,000 loan that was secured by a second mortgage on the homestead.  Husband testified that he obtained the loan to consolidate both his and wife's debts and to buy wife a car.  Wife did not sign any of the loan documents, and husband was identified on the documents as a "single person."      

            The parties were divorced by judgment and decree on December 10, 2004.  Husband moved for amended findings or a new trial.  The district court amended some of its findings and denied the motion for a new trial.  This appeal followed.

D E C I S I O N

            "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."  Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn. App. 2005) (citing Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000), and Ebnet v. Ebnet, 347 N.W.2d 840, 842 (Minn. App. 1984)).  Whether property is marital or nonmarital is a question of law, but a reviewing court must defer to the district court's underlying findings of fact.  Pekarek v. Pekarek, 384 N.W.2d 493, 498 (Minn. App. 1986). 

Findings of fact, whether based on oral or documentary evidence, shall 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.  The findings of a referee, to the extent adopted by the court, shall be considered as findings of the court.

 

Minn. R. Civ. P. 52.01.

            In applying Minn. R. Civ. P. 52.01, "we view the record in the light most favorable to the judgment of the district court."  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  This court will not reverse the district court's judgment merely because we view the evidence differently.  Id; see Vangness v. Vangness, 607 N.W.2d 468, 474 (Minn. App. 2000) (stating "[t]hat the record might support findings other than those made by the [district] court does not show that the court's findings are defective").  Rather, the court's factual findings must be clearly erroneous or "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole" to warrant reversal.   Rogers, 603 N.W.2d at 656 (quotation omitted).  "Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made."  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).  And "[i]f there is reasonable evidence to support the district court's findings, we will not disturb them."  Rogers, 603 N.W.2d at 656.

1.         All property acquired by either spouse during the marriage is presumptively marital.  Minn. Stat. § 518.54, subd. 5 (2006).  To overcome this presumption, a party must demonstrate by a preponderance of the evidence the property's nonmarital character.  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).  Nonmarital property includes a gift to one but not both parties and property that is the increase in value of nonmarital property.  Minn. Stat. §  518.54, subd. 5(a), (c). 

            Husband argues that the district court erred in ruling that the $35,000 that wife provided to make the down payment on the parties' home was not a gift from wife to husband.  The elements of a gift are: (1) delivery; (2) donative intent; and (3) the donor's absolute disposition of the intended gift.  Weber v. Hvass, 626 N.W.2d 426, 431 (Minn. App. 2001), review denied (Minn. June 27, 2001).  Intent is a fact question.  Oehler v. Falstrom, 273 Minn. 453, 457, 142 N.W.2d 581, 585 (1966).  "Donative intent is demonstrated by the surrounding circumstances, including the form of the transfer."  Olsen, 562 N.W.2d at 800.

            The district court found that wife gave husband a check for $35,000.  It is undisputed that the bonds that wife sold to obtain the $35,000 were nonmarital property.  The record includes a letter from wife to the mortgage company, which states, "This letter is to confirm that I am giving John D. Walker . . . a monetary gift of $35,000.  This gift does not require repayment at any time."  But wife testified that the loan officer and the parties' real-estate agent told her that because the home was going to be in husband's name, the records could not show that he had incurred further expenses from a loan, and she needed to sign a gift letter.  Wife testified that the loan officer dictated the letter to her and that her intent in signing the letter was not to relinquish any interest that she had in the $35,000 but solely to get the financing to go through.    

            The district court found:

In the machinations to purchase the homestead, in order to avoid [wife's] tax lien on the homestead, the mortgage was arranged to be in [husband's] name alone.  For reasons obscure, yet undisputed, the mortgage company or lender required a gift of the down payment to [husband] to secure the homestead mortgage.

 

            It is clear that the $35,000.00 was expected to be used as a down payment on the home, and the gift was only "a gift" in the eyes of the mortgage bank. . . . What is known and is obvious, is that the $35,000.00 from [wife] to [husband] was non-marital property for the purchase of the homestead.[[1]] 

 

            Husband contends that the district court's finding that wife did not intend to give the $35,000 to husband cannot be sustained because it is based on wife's testimony alone and ignores the contrary language in the gift letter.  But the district court credited wife's testimony that she did not intend the money to be a gift, and this court defers to the district court's assessment of witnesses' credibility and the weight given to their testimony.  General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987), superseded by statute on other grounds, 1990 Minn. Laws ch. 574, § 10, as recognized in Geske v. Marcolina, 624 N.W.2d 813, 817 n.2 (Minn. App. 2001).  Viewing the record in the light most favorable to the district court's judgment, the finding that wife did not intend a gift is reasonably supported by the evidence and is not clearly erroneous.  In light of this finding, the district court did not abuse its discretion when it determined that the down payment made from the $35,000 that wife provided gave wife a nonmarital interest in the homestead.

            Husband argues for the first time on appeal that wife perpetrated a fraud on him and the mortgage company.  Because this issue was not presented to the district court, we will not consider it on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that "[a] reviewing court must generally consider only those issues that the record shows were presented and considered by the [district] court in deciding the matter before it" (quotation omitted)). 

2.         Husband argues that the district court abused its discretion when it subtracted from his share of the marital interest in the homestead equity the amount needed to pay the remaining balance of the second-mortgage loan.  Husband contends that the expenses that were paid with the loan proceeds were expenses of both parties.    

            The parties were married on July 27, 1996, and the homestead was purchased on April 1, 1997.  Husband obtained the second-mortgage loan on June 30, 1998.  Wife did not participate in obtaining the loan, and husband signed the loan documents as a "single person."  The district court found that wife became aware of the second mortgage in April 2002 when the parties were contemplating refinancing the homestead and that "[d]espite [husband's] claims, the proceeds of this second mortgage were used to pay debts [husband] held in his name only most of which were financial obligations he owed at the time of the parties' marriage.  The funds from this second mortgage were disbursed to pay [husband's] credit card debt."

            Husband argues that the district court abused its discretion when, in determining that the loan proceeds were used to pay his credit-card debt, the district court drew a negative inference from his inability to document his credit-card debt at the time of the marriage.  But the negative inference that the district court drew was not based only on husband's inability to document his credit-card debt; it was based on husband's ability to document some debts, but not others.  A pretrial order required husband to provide an affidavit that listed all of his financial liabilities at the time of the marriage.  The district court found that the information that husband provided did not comply with the order and that

            [husband's] lack of recollection or documents supporting his debts at the time of the marriage contrasts sharply with his recollection and documentation of the single payment he made for [wife's] adult son's education, wedding expenses, and checks he supposedly wrote to [wife] or for repairs for the homestead from 1998 through 2002 from his personal checking account.  [Husband] also did not provide the loan application documents for either the first or second mortgage, which would have included a statement of assets and liabilities.  Without [husband's] candid disclosure of the information he was required to provide about debt he owed at the time of the marriage, [wife] had no way of obtaining the information.  Under the difficult circumstances in which documents were selectively available, [wife] has met her burden of showing that this second mortgage is traceable to [husband's] debts; thus the remaining balance on this second mortgage is [to] be the sole obligation of [husband]. 

 

            This finding demonstrates that the negative inference was based on the fact that husband produced documents that supported his claim that the loan proceeds were used to pay expenses of both parties but did not produce documents that showed what his debts were at the same point in time.  "The finder of fact is not required to accept even uncontradicted testimony if the surrounding facts and circumstances afford reasonable grounds for doubting its credibility."  Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987).  The fact that husband could only produce selective documents to corroborate his testimony afforded reasonable grounds for the district court to doubt his credibility.

            Husband also argues that the district court disregarded the documentation that he produced to show that his credit-card debt was incurred for the mutual benefit of the parties.  Husband specifically cites documents he produced as evidence of legal fees that he paid for wife, wedding expenses that he paid, a tuition payment that he made for wife's son, and payments he made for travel and vacation expenses.  The district court's findings demonstrate that the district court did not disregard the documents that husband produced; the findings specifically address the legal fees that husband claimed that he paid on behalf of wife and the tuition payment that he made for wife's son and explain why the district court did not conclude that the expenses were paid for the mutual benefit of the parties.   

3.         Husband argues that the district court abused its discretion when it awarded him only $15,000 in additional marital property, rather than awarding him spousal maintenance.  The district court found:

            That [husband] is currently unemployed with no source of income.  [Husband's] future income is speculative and uncertain.  [Husband] is in need of financial support from [wife] or a disproportionate award of the marital estate of the parties.  [Wife] does not have the economic resources to pay [husband] spousal maintenance.  It is equitable to award [husband] a disproportionate award of the marital estate.  Bas[ed] on [husband's] loss of net income for four months, [husband] has lost approximately $15,000.00 in net income.

 

            Husband does not dispute that wife lacks the financial resources needed to pay spousal maintenance and acknowledges that the only means available to the district court to provide financial support for him is by making a disproportionate award of the marital estate.  Husband contends, however, that the district court erred in awarding him only $15,000 based on his loss of income during the preceding four months and not including an amount for future income loss.  Husband argues that even with the $15,000 awarded to him, he received only 26% of the marital estate, and it is counterintutitive to call the $15,000 a disproportionate award of the marital estate.  But husband's argument is based on his disagreement with the district court's determinations regarding the marital and nonmarital portions of the homestead equity and its treatment of expenses paid by husband.  We have already addressed the district court's characterizations of the parties' property and debts, and when those characterizations are applied to calculate the value of the marital estate, husband received 41.39% of the marital estate.  Because husband received 41.39% of the marital estate, describing the $15,000 as a "disproportionate award" may be inaccurate, but the district court's description of the $15,000 has no legal significance.

            The district court is vested with broad discretion in determining an appropriate property division.  Dubois v. Dubois, 335 N.W.2d 503, 507 (Minn. 1983).  So long as the determination has a reasonable and acceptable basis in fact and principle, this court must affirm.  Id.  Property awards need not be equal; they must be just and equitable.  Larson v. Larson, 383 N.W.2d 18, 20 (Minn. App. 1986).  Husband has not shown that the district court abused its discretion by making a property award that is not just and equitable.

            Affirmed.

[1] The district court also found that $29,820.26 was actually used for the down payment and that this amount was wife's nonmarital contribution to the homestead.