Sherri Ann Lindstrom, petitioner, Respondent, vs. Thomas Gene Lindstrom, Appellant.

Sherri Ann Lindstrom, petitioner, Respondent, vs. Thomas Gene Lindstrom, Appellant. A06-965, Court of Appeals Unpublished, April 17, 2007.

This opinion will be unpublished and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

A06-965

 

Sherri Ann Lindstrom, petitioner,
Respondent,
 
vs.
 
Thomas Gene Lindstrom,
Appellant.

 

Filed April 17, 2007

Affirmed

Stoneburner, Judge

 

St. Louis County District Court

File No. 69F904301274

 

Patrick J. Roche, Paul D. Cerkvenik, The Trenti Law Firm, 1000 Lincoln Building, 225 North First Street, Virginia, MN 55792 (for respondent)

 

Richard E. Prebich, Law Offices of Richard E. Prebich, Suite 2, 1932 Second Avenue East, Hibbing, MN 55746 (for appellant)

 

            Considered and decided by Minge, Presiding Judge, Stoneburner, Judge, and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            In this dissolution action, appellant challenges the district court's valuation and division of property, failure to equalize the disparity in social-security benefits between the parties in the division of property or award of maintenance based on the disparity, and calculation of appellant's net monthly income.  Because the district court did not clearly err in valuing the property or in finding appellant's net monthly income and did not abuse its discretion in the division of property or the denial of appellant's request for maintenance, we affirm.

FACTS

 

            Appellant Thomas Lindstrom (husband) and respondent Sherri Lindstrom (wife) were married in 1984 and separated in late 2003; their marriage was dissolved in 2006.  The parties stipulated to joint legal and joint physical custody of their two children, who were aged 17 and 12 at the time of the dissolution, with each parent having substantially equal parenting time.  The parties agreed that child support would be based on the Hortis/Valento formula.  Property valuation and division, maintenance, and the calculation of child support were tried to the district court.

            Husband derives his income from his photography business, DownTown Photo, Inc., d/b/a Tom Lindstrom Photography.  The district court found that although husband's net income is difficult to ascertain because of depreciation and the fact that husband pays personal expenses through the business, husband "earns or is capable of earning a net of at least $2,000.00 per month in his business."  The district court also found that husband averages fewer than 40 hours per week at his business and therefore "has some additional time available to either market his business or secure additional part-time employment."  Wife is employed by the City of Hibbing as its Finance Director.  The district court found that her net monthly income is $3,646.  Using the Hortis/Valento formula, the district court calculated wife's child-support obligation to be one-half of $1,100 per month and husband's obligation to be one-half of $600 per month, resulting in a net payment by wife to husband of $250 per month.

            The district court found that the parties have comparable living expenses for themselves and the minor children of approximately $2,600 per month.  The district court noted the disparity in the parties' expected social-security benefits but declined to adjust the property division or award maintenance for that disparity.

            The district court valued the parties' real estate, husband's business, financial accounts, and personal property.  The court divided the personal property, awarded the homestead to husband, awarded the lake home to wife, and required wife to pay an $80,000 equalizer to husband.

            Both parties moved for amended findings of fact and conclusions of law, or in the alternative, a new trial.  The district court denied the motions of both parties, and this appeal by husband followed.

D E C I S I O N

 

I.          Valuation of lake home

            Husband argues that the district court's valuation of the parties' lake home at $240,000 is clearly erroneous.  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 v. Maurer, 623 N.W.2d 604, 606 (Minn. 2001).  "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 has broad discretion in setting the valuation date for marital property.  Desrosier v. Desrosier, 551 N.W.2d 507, 510 (Minn. App. 1996).  To successfully challenge a district court's findings of fact, a party must show that, despite viewing the evidence that tends to support the findings in the light most favorable to the findings and according deference to the district court's credibility determinations, "the record . . . requires the definite and firm conviction that a mistake was made."  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).

            Each party presented expert testimony on the value of the lake home.  Wife and her expert valued the property at considerably less than husband and his expert, but wife testified that she would be willing to pay the amount of husband's expert's appraisal in order to be awarded the property.  Husband, in his proposed findings submitted to the district court after the trial, argued that the lake home had appreciated considerably between the presumptive valuation date and the date of trial, and he asserted that he was willing to pay $287,215 for the property, an amount that exceeded his expert's testimony of the value.

            The district court valued the lake property as of the date of trial at less than the value proposed by husband but more than the value proposed by wife.  The district court explained in detail how it arrived at the value.  The court relied on the comparable sales provided by wife's expert but adjusted those figures because, based on the testimony of husband's expert, the district court determined that the additional 100 feet of lakeshore owned by the parties and the style of the house made this property more valuable than the comparables used by wife's expert.  The court rejected husband's expert's comparables because they were located on different lakes that the court determined had more desirable amenities, but the court did take into account the overall increase in value of residential lakeshore property throughout the area.

            Husband argues that the district court should have maximized the marital estate by valuing the property at more than $287,000 because each party would have paid a premium for the property, but the district court rejected this method of valuing the property, noting that "what the parties in a divorce for sentimental reasons might be willing to pay [for] something is questionable relevance as to market value."  Because the district court's valuation of the lake property falls within the limits of credible estimates made by competent witnesses, it is not clearly erroneous.

II.        Award of lake home to wife

            Both husband and wife testified to a sentimental attachment to the lake home.  Husband challenges the district court's award of the lake home to wife, particularly in light of his testimony that he was willing to purchase her share of the property at a value that exceeded expert testimony regarding value.  "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).

            In this case, the district court determined that it would be "fair and appropriate" for wife to remain in the lake home because, by agreement of the parties, she had resided there during the parties' two-year separation; husband's business was located at the homestead, which was awarded to husband; and husband was not in a financial position to reasonably purchase wife's interest in the lake home.  The fact that the record might have also supported an award of this property to husband does not make the district court's decision an abuse of discretion. 

III.       Value of husband's business

            Husband asserts that the district court's valuation of his business was clearly erroneous.  At trial, husband asserted that the value of his business was $10,000 to $15,000.  Husband admitted that he owed about $12,000 on approximately half of his electronic equipment, but explained that the value of the equipment depreciated very rapidly.  Wife, who handled all of the parties' finances, testified that the accumulated depreciation claimed on the parties' income taxes for husband's equipment was approximately $70,000.  Wife admitted that she did not have expertise in valuing the equipment, but estimated the value of husband's business to be about $30,000.  Neither party provided expert testimony as to the value of the business. 

            The district court determined that the business was worth $30,000 based on evidence that gross sales in 2004 and 2005 exceeded $83,000 for each year; husband was working less than 40 hours per week; and that "the business itself has substantial value as an ongoing concern."  Because the parties only presented their own opinions as to the business's value, the court, as a finder of fact, had the discretion to adopt the value it found most credible.  See Bury v. Bury, 416 N.W.2d 133, 136 (Minn. App. 1987) (noting parties are presumed competent to testify to the value of their property); see also Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (deferring to the district court's assessment of credibility).

IV.       Value of Personal Property

            Husband also asserts that the district court abused its discretion when it valued his gun collection at $3,000 and valued wife's jewelry at $2,000.  Wife valued husband's gun collection at $10,000.  Husband valued the gun collection at $2,550, excluding a $400 handgun he claimed belonged to the parties' minor son.  The district court found that "the evidence is insufficient for the district court to make a precise determination as to the various models of the various makes of guns, scopes, and safe, or the condition thereof," and it valued the gun collection at $3,000, very close to husband's valuation.  The district court credited wife's testimony about the value of her jewelry.  See Sefkow, 427 N.W.2d at 210 (deferring to the district court's assessment of credibility).  Because the values found by the district court lie within a range of reasonable figures in the record, we conclude that the district court's findings are not clearly erroneous.

            Husband's challenge to the overall property division rests on his argument that the district court should have adopted husband's values for the lake home, his business, and the personal property.  Because we have concluded that the district court's values for these items are not clearly erroneous, we also conclude that the overall division of property, which resulted in equal awards to the parties, was not an abuse of the district court's discretion.  Cf. Miller v. Miller, 352 N.W.2d 738, 742 (Minn. 1984) (stating that an equal division of marital property on dissolution of a long-term marriage is presumptively equitable).

V.        Calculation of husband's net monthly income

            Husband argues that the court miscalculated his net monthly income, which affected the calculation of child support and the determination of his need for maintenance.  "Findings on net income for child support purposes will be affirmed on appeal if those findings have a reasonable basis in fact and are not clearly erroneous."  Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002) (quotation omitted).

            At trial, wife, who prepared the joint tax returns for the parties, presented evidence that husband's net monthly income is $2,742 and that he works fewer than 40 hours per week.  That amount includes living expenses paid by husband's business, but does not include any social-security or Medicare withholding, and allows for only $500 a year in taxes and a $300 per month health-insurance deduction.  Husband did not testify about or provide a separate exhibit on his calculation of his net monthly income.  In his proposed findings submitted to the district court, husband proposed a finding that his monthly net income is $901 per month.

            The district court found that because husband is self-employed, his exact net income is "difficult to ascertain, because of accounting variables such as depreciation and running personal expenses through the business."  The district court found that husband worked fewer than 40 hours per week in his business and is capable of earning a monthly net income of at least $2,000 from his business.

            Based on evidence in the record that: (1) husband's business grossed $83,000 per year in 2004 and 2005; (2) husband contributed $250 per month to his IRA; (3) health insurance was available to husband for less than the $650 per month deduction husband used in his proposed findings; (4) wife calculated husband's net monthly income as $2,742; and (5) husband was not working 40 hours per week; we cannot conclude that the district court's finding regarding husband's net monthly income is clearly erroneous. 

Because the calculation of husband's net monthly income is not clearly erroneous, the district court correctly used that figure to calculate child support and to consider husband's request for maintenance.

VI.       Social-security disparity and maintenance

 

            Husband asserts that the district court abused its discretion by not properly considering the disparity in the parties' potential social-security benefits caused, in part, by accounting measures that minimized husband's social-security tax and increased the parties' cash flow during the marriage.

            Unlike pension benefits, social-security benefits are not property subject to division.  Elliott v. Elliott, 274 N.W.2d 75, 78 (Minn. 1978).  Rather, "[f]uture receipt of social security payments is a financial resource and must be considered in determining spousal maintenance."  Taylor v. Taylor, 329 N.W.2d 795, 799 (Minn. 1983).

            Husband presented evidence that he would be entitled to $478 per month and wife would be entitled to $1,334 in social-security payments at age 62.  One of husband's exhibits indicated the present value of his benefits as about $32,000 and the present value of wife's benefits as about $79,000.  Husband argues that based on this disparity and his income and expenses, the district court abused its discretion by denying his request for maintenance and in dividing the marital estate.

            Appellate courts review a district court's maintenance award under an abuse-of-discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  A district court abuses its discretion regarding maintenance if its findings of fact are unsupported by the record or if it improperly applies the law.  Id. at 202 & n.3.  "Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous."  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992); see also Minn. R. Civ. P. 52.01.

            In a proceeding for dissolution of marriage . . . the court may grant a maintenance order for either spouse if it finds that the spouse seeking maintenance:

 

            (a) lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or

 

            (b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

 

Minn. Stat. § 518.552, subd. 1 (2006).

            In this case, the district court found that "because of the parties' present incomes, earning capacity, living expenses, and the property award[]," husband does not need maintenance even considering "the disparity in contributions to social security between the parties during the marriage."

            As wife points out, husband, who was only 45 years old at the time of the dissolution trial, has the opportunity to significantly increase his social-security contribution before reaching age 62.  Cf. Kottke v. Kottke, 353 N.W.2d 633, 637 (Minn. App. 1984) (determining that 42-year-old husband, who had a pension but had not paid enough into social security to qualify for benefits, had an "independent opportunity to improve his income, including the opportunity through future earnings to qualify for social security benefits"), review denied (Minn. Dec. 20, 1984).  Based on the entire record, we cannot conclude that the district court abused its discretion when it denied husband maintenance despite differences in the parties' social-security benefits.

            Husband also argues that because no maintenance was awarded, he "has been fully deprived of marital property without due process and the application of the law in such a manner is a violation of equal protection."  Because husband does not support this claim with any authority or analysis, we decline to address it.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating that 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).

            Affirmed.