In re the Marriage of: Nancy Judd Ehlen, petitioner, Respondent, vs. Charles Philip Ehlen, Appellant.

In re the Marriage of: Nancy Judd Ehlen, petitioner, Respondent, vs. Charles Philip Ehlen, Appellant. A06-798, Court of Appeals Unpublished, June 26, 2007.

This opinion will be unpublished and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

A06-798

 

In re the Marriage of:
Nancy Judd Ehlen, petitioner,
Respondent,
 
vs.
 
Charles Philip Ehlen,
Appellant.

 

Filed June 26, 2007

Affirmed

Stoneburner, Judge

 

Stearns County District Court

File No. F703116

 

Robert W. Due, Katz, Manka, Teplinsky, Due & Sobol, Ltd., Suite 4150, 225 South Sixth Street, Minneapolis, MN 55402 (for respondent)

 

Mark A. Olson, Olson Law Office, Suite 100, 2605 East Cliff Road, Burnsville, MN 55337 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            In this appeal from a dissolution judgment, appellant challenges the property division under several theories.  Because the district court did not err or abuse its discretion in dividing the parties' property, we affirm.

FACTS

 

            This case involves the division of a substantial marital estate after a 44-year marriage.  The district court appointed a neutral accounting expert, Thomas Harjes, and a neutral real-estate appraiser, Robert Strachota.  Appellant Charles Ehlen (husband) and respondent Nancy Judd Ehlen (wife) stipulated to a valuation date of August 31, 2005.  The dissolution action was filed in November 2002, and the trial occurred on various days between October 2005 and December 2005.

            At trial, Harjes testified that the value of the marital estate was approximately $43,510,540.  Harjes, using Strachota's real estate valuations, testified about the value of the parties' various properties and investments.  Harjes testified about the tax consequences of liquidating the assets and opined that transferring assets, rather than liquidating assets and transferring cash, would avoid some tax consequences and distribute any tax burden resulting from the dissolution more equally.

            Husband did not challenge Harjes's valuations and challenged only one of Strachota's valuations.  Strachota determined that the Frerich Farm, one of the assets of a corporation owned by the parties, should be valued at $2,000,000 or $11,150 per acre, based on its best use, which would be residential development.  Husband, who has no plans to develop the property, called a realtor, Steven Hansen, who testified that the value of Frerich Farm as a farm was $3,000 to $3,500 per acre.

            Wife testified that the parties separated in October 2002.  Wife testified that she maintained the parties' residences and vehicles and managed the household finances until the separation.  The parties agreed that wife was the record keeper for the parties' marital investments until 1993, when wife refused to have any further involvement with the investments.  Beginning in about 1993, wife spent several months each winter at one of the residences in Arizona.  She returned to the Sartell homestead for Thanksgiving and Christmas each year and was responsible for organizing the family gatherings for those occasions.  Wife oversaw extensive remodeling of a duplex in Arizona in 1997, acquired additional land for the parties in Arizona in approximately 2001, and acquired the land and oversaw the building of the parties' cabin in Bemidji, which was completed in approximately 1998.

            Husband, who contended that the parties stopped living together as husband and wife long before October 2002, testified that, in his opinion, the parties separated in 1986, when wife took a full-time job outside the home and was no longer available as a full-time homemaker.  Husband gave various other dates as the date of separation and argued that after 1993, when wife refused to organize and keep records of their investments, wife made no contribution to the accumulation of the marital estate.  Husband, whose proposal for a property division was presented on the last day of trial, argued that only marital assets accumulated through the early 1990s should be divided equally, and that he should be awarded all property acquired and any increase in existing assets after that time.

            The district court found that the parties separated in October 2002 and that wife "made substantial contributions to the acquisition of the marital assets of the parties over the course of the 44-year marriage."  The district court adopted the majority of wife's proposed findings of fact, conclusions of law and judgment, dividing the value of the assets as of the stipulated valuation date equally.  Wife requested some minor clerical corrections to the judgment.  The district court issued an amended judgment incorporating those changes.  Husband did not oppose the clerical changes, or move for amended findings or a new trial, but filed a direct appeal.

D E C I S I O N

 

I.          Property division

            On appeal, husband objects primarily to the district court's finding that an equal division of assets was appropriate, given the undisputed fact that husband's investment activities after 1993 account for the bulk of the marital estate.  "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).  Appellate courts "will affirm the trial court's division of property if it had an acceptable basis in fact and principle even though [the appellate court] might have taken a different approach."  Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002).  "We defer to the trial court's findings of fact and will not set them aside unless they are clearly erroneous."  Id.

            The district court "shall make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property."  Minn. Stat. § 518.58, subd. 1 (2006).  When dividing marital property, the district court may consider many factors, such as the length of the marriage, sources of income, and the contribution of each party in the preservation of the marital property.  Id. "It shall be conclusively presumed that each spouse made a substantial contribution to the acquisition of income and property while they were living together as husband and wife."  Id. The district court must value marital property upon division of the marital estate, and, if there is a substantial change in the value of an asset between the original valuation and the final distribution, "the court may adjust the valuation of that asset as necessary to effect an equitable distribution."  Id.

            Findings of Fact

            Husband argues that the district court's findings regarding wife's contribution to the acquisition of assets are clearly erroneous.  A district court's findings of fact are reviewed for clear error.  Antone, 645 N.W.2d at 100.  In order to challenge successfully a district court's findings of fact, the party challenging the findings "must show that despite viewing [the] evidence in the light most favorable to the trial court's findings . . . the record still requires the definite and firm conviction that a mistake was made."  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  An appellate court must defer to the district court's credibility determinations.  Id. at 473.

            Husband specifically challenges the district court's findings that wife made substantial contributions to the acquisition of the parties' assets after 1993 and that the parties lived as husband and wife until their separation in 2002.  Husband testified that, until 1993, wife "made a very significant contribution to the marriage" and that "she was very valuable in helping, keeping track of documents, sort of cataloging them and taking care of the family finances."  There is discrepancy in husband's and wife's characterization of their relationship and wife's contribution to the marital estate after 1993, but the district court credited wife's testimony, which is sufficient to support the district court's findings about the date of separation and wife's continued contribution to the acquisition of assets after 1993.  Because the findings are supported by the record, they are not clearly erroneous and will not be reversed on appeal.

            Constitutional challenge

            Husband asserts a constitutional challenge to the conclusive presumption contained in Minn. Stat. § 518.58, subd. 1, "that each spouse made a substantial contribution to the acquisition of income and property while they were living together as husband and wife."  The district court rejected husband's challenge on the merits, but also stated that "[wife] in this case does not have to take advantage of the statutory presumption because she made an incalculable contribution to the 44-year marriage as a factual matter."  The court further stated, "[Wife] does not need to avail herself of the conclusive presumption in this case, since there is substantial evidence that she did in fact make substantial contributions to the acquisition of the parties' assets."  Because the district court did not rely on the conclusive presumption in this case, we decline to address husband's constitutional challenge.  See In re Senty-Haugen, 583 N.W.2d 266, 269 n.3 (Minn. 1998) (stating that "[i]t is well-settled law that courts should not reach constitutional issues if matters can be resolved otherwise").[1]

            Taxes

            Husband argues that the district court erred in failing to reduce the value of assets by the amount of tax that would be incurred on liquidation.  A district court's decision whether to consider tax consequences in a property division is reviewed for an abuse of discretion.  Maurer v. Maurer, 623 N.W.2d 604, 608 (Minn. 2001).  But if a tax consequence is speculative, the district court should generally avoid considering those speculative effects in its property distribution.  See id. at 609 (Lancaster, J., concurring).

            Harjes testified that taxes would only be realized at sale or liquidation, and he proposed a division of assets that would not require the liquidation of assets.  The district court adopted Harjes's approach to dividing the parties' assets.  There is no evidence in the record of either party's current need or intent to liquidate any asset.  The record demonstrates that husband has access to sufficient funds to pay the cash equalizer required by the property division without liquidating any assets.  The district court specifically addressed taxes in its detailed findings, carefully explaining how the property division was designed to avoid tax consequences as much as possible and otherwise equalize the tax consequences as much as possible.  The district court appropriately considered the issue of tax consequences in fashioning the property division in this case.

            Distribution

            Husband argues that "equity dictates that [he] should have, at the very least, been given the right of first choice of assets since it is undisputed that [the assets] were created solely through his hard work and efforts."  The division of assets is reviewed for an abuse of discretion.  Sirek, 693 N.W.2d at 898.  Husband again ignores evidence in the record of wife's contribution to the marital estate, but acknowledged at oral argument that there is no authority that a spouse's contribution to the acquisition of assets must be measured only in how active that spouse was in the actual income-producing activity.  And husband acknowledges that there is no authority that a primary breadwinner should have first pick of the assets.

            Husband argues that wife was allowed to "cherry pick" assets with the least amount of tax consequences and the highest cash flow.  The record reflects that wife requested assets that will require minimal labor and oversight by wife, acknowledging that husband is the more experienced investor and is in the better position to deal more effectively with the business assets that will require more oversight.  On appeal, although husband has asserted that wife's award avoids tax consequences and has higher cash flow, husband, who was awarded many of the assets he requested, has not shown that the overall property division was unequal.  At trial, when husband asked if he objected to wife being awarded certain assets, husband responded that he did not know if he objected or not.  On this record, we conclude that the district court did not abuse its discretion by awarding wife the properties that required less "hands-on" management.

            Other Findings

            Husband lists approximately 17 findings of fact related to the property division that he claims are unsupported by the record and therefore clearly erroneous.  Most of the challenged facts are simply listed in husband's appellate brief without an explanation or any citation to the record to demonstrate how or why they are erroneous.  Assignment of error in a brief based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  Many of the findings relate to years before 1993 and therefore cannot constitute prejudicial error because husband concedes, at least on appeal, that wife made a substantial contribution to the acquisition of assets until 1993.  In some instances, husband has listed comments that, although taken from the "findings of fact" section of the judgment, are not findings at all.  For these reasons, we address only the single properly briefed challenge that clearly relates to the property division, the valuation of the Frerich Farm.

            A district court's valuation of property is a finding of fact and will not be set aside unless it is clearly erroneous on the record as a whole.  Maurer, 623 N.W.2d at 606.  "Exactitude is not required of the trial court in the valuation of assets in a dissolution proceeding; it is only necessary that the value arrived at lies within a reasonable range of figures."  Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979).  "[T]he market valuation determined by the trier of fact should be sustained if it falls within the limits of credible estimates made by competent witnesses even if it does not coincide exactly with the estimate of any one of them"  Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975).

            The district court found Strachota's testimony about the value of the farm to be more credible than Hansen's testimony.  Husband asserts that the district court "provided no legal basis for its disqualification of [husband's expert], who was in an eminently better position to value the property."  But the district court did not "disqualify" husband's expert.  The district court, for reasons stated in the findings, found Strachota's testimony more credible.  Because we defer to the district court's credibility determinations and because Strachota's testimony supports the district court's determination of the value of the farm, the valuation is not clearly erroneous.

II.        Nonmarital Claims

            Husband argues that the district court abused its discretion when it refused to allow him to submit evidence regarding alleged nonmarital claims to the account listed as "Stearns Bank" and a receivable of Cinco Corporation.  Wife argues that husband has waived this issue on appeal because husband did not file a motion for amended findings or a new trial.  "It has long been the general rule that matters such as trial procedure, evidentiary rulings and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error."  Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986).  Because husband did not file a motion for amended findings or a new trial, we conclude that this evidentiary issue was not properly preserved for appeal.  We note additionally, that the maximum amount of husband's non-marital claim to these accounts, as stated by husband's counsel during oral argument, amounts to about 1.1% of the marital estate.  Therefore, even if the district court erred, given the complexity and magnitude of the marital estate, the error would not necessarily require reversal or remand.  See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for a de minimis technical error); cf. Minn. R. Civ. P. 61 (requiring harmless error to be ignored).

III.       Adoption of Wife's Proposed Findings

            Husband asserts that the district court improperly adopted wife's proposed findings of fact, conclusions of law, and order for judgment.[2]  "A district court's verbatim adoption of a party's proposed findings and conclusions of law is not reversible error per se."  Schallinger v. Schallinger, 699 N.W.2d 15, 23 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005).  But such a practice is disfavored.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  A district court's verbatim adoption of proposed findings raises the question of whether the district court "independently evaluated each party's testimony and evidence."  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  When a party alleges that the district court adopted proposed findings verbatim, we carefully review whether the district court's findings and conclusions are "detailed, specific and sufficient enough to enable meaningful review by this court."  Id.

            Although the district court's findings closely resemble wife's proposed findings, they are not identical.  The proposed findings awarded wife the marital home, $20,000 in attorney fees, and awarded husband the loans payable.  But the judgment awarded husband the martial home, denied wife's request for attorney fees, and divided the loans payable equally between the parties.  It is therefore apparent that the district court independently considered the evidence and independently reviewed proposed findings before adoption.  The findings are "detailed, specific and sufficient enough to enable meaningful review by this court."  Id.  The district court's use of wife's proposed findings of fact, conclusions of law, and order for judgment is not reversible error in this case.

            Affirmed.

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

[1] Husband also argues that if the presumption is constitutional, it must be rebuttable, and he rebutted it.  But as discussed above, the statutory presumption is not relevant to this case.

[2] Husband asks this court to "adopt the federal rule that verbatim adoption of findings and conclusions is per se error."  There is no such federal rule.  Federal Rule of Civil Procedure 52(a) is identical in substance to Minn. R. Civ. P. 52.01.  See Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn. App. 1987) (noting that although federal courts have firmly disapproved the practice of verbatim adoption of proposed findings and conclusions of law, no case has held that the practice is reversible error per se), review denied (Minn. Aug. 19, 1987).