This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-99-711
CX-99-746

In re the Marriage of:
Dale E. Barlage, petitioner,
Respondent (C2-99-711),
Appellant (CX-99-746),

vs.

Kathleen Wright Barlage, n/k/a
Kathleen Wright,
Appellant (C2-99-711),
Respondent (CX-99-746).

Filed January 18, 2000
Affirmed in part, reversed in part, and remanded
Halbrooks, Judge

Hennepin County District Court
File No. DC 169062

R.D. Estes, David R. P. Houston, Estes Law Firm, P.A., 4741 Fremont Avenue South, Minneapolis, MN 55409; and

Richard D. Goff, Richard D. Goff & Associates, 3908 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for respondent Dale Barlage)

Susan M. Lach, John W. Lang, Elizabeth L. Plitzuweit, Messerli & Kramer, P.A., 1800 Fifth Street Towers, 150 South 5th Street, Minneapolis, MN 55402 (for appellant Kathleen Wright)

Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

In these consolidated appeals, appellant Kathleen Wright Barlage n/k/a Kathleen Wright appeals from the district courtís order finding that she is no longer entitled to an interest in all but four properties abandoned by the bankruptcy trustee near the time of the partiesí dissolution and declining to award her attorney fees. Respondent Dale E. Barlage: (1) appeals the district courtís finding that appellantís motion for new trial or amended findings of fact was not an improper motion for reconsideration; (2) contends the district court erred in construing the dissolution decree regarding the property abandoned by the trustee; (3) argues the district court erred in granting appellant permanent maintenance and in not considering the gifts from appellantís family members as a financial resource to her; and (4) argues the district court erred in denying his motion for attorney fees.

We affirm the district courtís order with respect to each of respondentís claims and appellantís claim for attorney fees. We also affirm the district courtís finding that respondentís interests in the Greenfield Farm, Grand Forks Property, Loeffler Parcel, and Hackett Parcel were either "foreclosed or cancelled by contract cancellation," leaving nothing to award. We, however, reverse the district courtís finding that appellant lost her interest in the following real property: Rosholt Farm I & II, Warroad Property, Dave Clark Farm, Cotton Property, and Palacio Del Sol; and the following personal property: Lewiston Properties Limited Partnership, Mentor 1983 Research Limited Partnership, 100 shares Northwest Home Care Inc., Barlage-Doom General Partnership, DWI Partnership, Wayzata Bayview Limited Partnership, Days Inn Hotel, Somerset Wyoming Limited Partnership, Spring Creek Ranch Company, and Financial Services Inc. We remand to the district court for an order specifically listing all property in which the trial courtís April 7, 1992 amended order granted appellant an interest and requiring respondent to account for the monies or other property or value received from the properties listed by the district court on remand.

FACTS

Respondent Dale E. Barlage and appellant Kathleen Wright Barlage were married on November 8, 1975. On April 7, 1992, the partiesí marriage was terminated pursuant to a dissolution decree.

During portions of the marriage, the parties enjoyed a very high standard of living. Respondent was employed as a securities broker from 1975 through August 1989. In 1987 and 1988, respondentís gross income exceeded $500,000 per year. In the late 1980s, respondent became involved in a real estate venture and lost a substantial amount of money. Respondent also lost his employment in August 1989, and eventually filed for bankruptcy on April 10, 1990.

The petition for dissolution was filed on July 24, 1990, and the trustee for respondentís bankruptcy became an interested party in the dissolution proceedings. From July 23, 1990, to January 22, 1992, the bankruptcy trustee gave notice of abandonment of 13 different properties.

On January 31, 1991, the respondent and the trustee entered into a settlement agreement, and the trustee agreed to abandon several enumerated properties. In its April 7, 1992 amended order dissolving the partiesí marriage, the trial court made the following property distributions: In paragraph 3, it awarded respondent the Jackson, Wyoming home and all of the personal property located there. The trial court then awarded appellant a "disproportionate" share of marital assets because it found that respondent had dissipated and transferred marital assets. In paragraph 4, the trial court awarded appellant: (1) the Wayzata home, (2) one-half equity in the real property owned by the parties, except the Jackson, Wyoming home; and (3) all items of personal property designated as "waived" by the trustee except the Wyoming residence personal property.

Finally, in paragraph 10, the trial court included a catchall provision that stated:

With respect to any property, or assets abandoned by the Trustee in bankruptcy of the Husband, Husband and Wife shall be entitled to a 50% joint interest in said abandoned property or assets.

The trial court specifically reserved the issue of maintenance due to the uncertainty of the partiesí financial situations.

In November 1996 and April 1997, respondent bought out the security interest in eight properties previously abandoned by the bankruptcy trustee. The purchase agreement entered into by respondent for the transfer of these properties acknowledges that both respondent and appellant have an interest in the transferred property. Appellant, however, was not informed of respondentís transfers of the properties when they occurred.

On October 1, 1998, appellant filed a motion for maintenance and an award of 50% interest in the properties abandoned by the trustee. On December 21, 1998, the district court issued an order awarding appellant permanent maintenance of $3,900 per month and denying her request for 50% of the property abandoned in the bankruptcy.

Both parties filed motions for new trial or amended findings of fact. In response to appellantís motion, the district court altered its findings and determined the trial courtís dissolution decree granted appellant a 50% interest in the items of real and personal property covered by paragraph 10 and a 75% interest in the properties referenced in paragraph 4. The district court, however, found that it would be inequitable to perfect appellantís interest in the properties because of the length of time that had passed and respondentís extension of new consideration to repay the liens on eight of the properties. The district court, therefore, awarded appellant a 50% interest in four of the properties. The district court did not alter its findings regarding maintenance.

Both parties appealed from the district courtís February 22, 1999 order.

D E C I S I O N

I. Propriety of Motion for Amended Findings

Respondent argues appellantís motion for new trial or amended findings of fact filed on January 15, 1999, was an improper motion for reconsideration and insufficient to toll the running of the time for an appeal. See Carter v. Anderson, 554 N.W.2d 110, 113 (Minn. App. 1996) (holding a motion for amended findings that does no more than reargue a prior motion is really an impermissible motion for reconsideration), review denied (Minn. Dec. 23, 1996).

Under Minn. R. Civ. P. 52.02, a party may file a motion for amended findings. "The purpose of a motion for amended findings Ďis to permit the district court a review of its own exercise of discretion.í" Lewis v. Lewis, 572 N.W.2d 313, 315 (Minn. App. 1997) (quoting omitted), review denied (Minn. Feb. 19, 1998)).

A proper motion for amended findings must both identify the alleged defect in the challenged findings and explain why the challenged findings are defective. Lewis, 572 N.W.2d at 315. An explanation of why findings are allegedly defective should address the relevant standard for amending findings. Id. at 316.

Upon a review of the record, we conclude appellantís motion for amended findings was proper. Although appellant repeats some of the arguments she made in her initial motion, her motion for amended findings clearly points out why she believed the district courtís order was erroneous and explains that if the courtís interpretation were given effect, several marital assets would not have been awarded to either party. See id. (stating a proper motion for amended findings must both identify the alleged defect in the challenged findings and explain why the challenged findings are defective).

A. New evidence

Respondent next contends the district court erred in allowing appellant to support her motion for amended findings and/or new trial with "new evidence" ó an affidavit of counsel which was not part of the district court record. Appellant responds that the affidavit is not "new evidence," but merely a summary of the information in the court file. The affidavit submitted by appellant states that there is no evidence in the court file that would have given the trial court notice that respondentís bankruptcy trustee had abandoned several properties on January 22, 1992. We find no merit in respondentís argument and agree that the affidavit did not present new evidence.

B. Evidentiary hearing

Respondent argues the district court erred in not holding an evidentiary hearing to evaluate the evidence submitted in appellantís affidavit regarding the trial courtís knowledge of the timing of the abandonment of the property by the bankruptcy trustee. Because we conclude the affidavit did not present new evidence, respondentís contention is meritless. Moreover, we conclude he has waived this argument for purposes of appeal. In his post-trial motion, respondent never requested an evidentiary hearing based on appellantís motion for amended findings and/or new trial. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding this court will not generally consider issues raised for the first time on appeal).

II. Partiesí Interest in Abandoned Property

A. Interpretation of paragraph 10

Respondent contends the district court erred in its interpretation of paragraph 10 of the trial courtís April 7, 1992 amended dissolution decree and, therefore, improperly determined appellantís interest in the abandoned property. This paragraph states:

10. With respect to any property, or assets abandoned by the Trustee in bankruptcy of the Husband, Husband and Wife shall be entitled to fifty percent interest in said abandoned property or assets.

In interpreting this paragraph in its February 22, 1999 order, the district court concluded that although all of the property at issue had been abandoned by the trustee by January 22, 1992, the trial court was not aware the property had already been abandoned when it issued its amended judgment and decree on April 7, 1992. Thus, the district court concluded the trial court was not aware the real property awarded to appellant under paragraph 4 of the dissolution decree had not been abandoned by the trustee, and this property was included in paragraph 10. Additionally, the district court concluded numerous items of real and personal property had not been specifically awarded to either party and, therefore, fell under paragraph 10.

Respondent contends the correct interpretation is that paragraph 10 represents a response by the trial court to the partiesí dispute over the ownership of a specific list of properties abandoned by the trustee. According to respondent, the properties at issue were listed in respondentís settlement agreement with the bankruptcy trustee and partially listed in paragraph 17 of the dissolution decree.

Respondent explains that because the trial courtís original judgment and decree included an abbreviated version of the properties listed in the respondentís settlement, respondent filed a post-trial motion for amended findings granting him 100% ownership of the property abandoned by the trustee and listed in the settlement agreement. Appellant responded by requesting joint ownership in the property. Following these post-trial motions, the trial court issued an amended dissolution order which included paragraph 10.

Because interpretations of dissolution decrees should render them "reasonable, effective, and conclusive," Palmi v. Palmi, 273 Minn. 97, 104, 140 N.W.2d 77, 82 (1966), we conclude the district court correctly interpreted paragraph 10. The district courtís interpretation that paragraph 10 applies to the properties not yet abandoned by the trustee or already abandoned, but not yet known to the trial court, insures all of the partiesí property is awarded. It also harmonizes with paragraphs 3 and 4 of the decree, which make specific awards of property to the parties. Finally, it takes into account the bankruptcy proceedingís removal of many items of the partiesí property from the trial courtís jurisdiction and the fact that the trial court was unaware of the abandonment of the property when paragraph 10 was crafted.

B. Appellantís interest in abandoned property

The district court found appellant had a 75% interest in the properties listed in paragraph 4 of the dissolution decree and 50% interest in the properties covered by paragraph 10 of the dissolution decree. But it found that appellantís failure to assert her interests after the dissolution and respondentís actions to re-acquire eight of the properties prevented the court from perfecting respondentís interest in the property. The district court also noted that appellantís interests in the Greenfield Farm, Grand Forks Property, Loeffler Parcel, and Hackett Parcel "were either foreclosed or cancelled by contract cancellation leaving nothing to award via" paragraph 10 of the trial courtís decree.

We agree with the district courtís interpretation of the trial courtís amended decree as it pertains to the partiesí interests in the properties awarded in paragraphs 4 and 10 of the decree. We also agree with the district courtís conclusion that the cancellation of contracts for deed on the Greenfield Farm and Loeffler Parcel and the mortgage foreclosures on the Hackett Parcel and Grand Forks Property left no property interests to be awarded pursuant to paragraph 10 of the trial courtís April 7, 1992 decree.

Moreover, we recognize the complexity of this case and the time and careful consideration given to it by the district court. Nevertheless, we are constrained to conclude the question of whether the doctrine of laches barred appellantís action to assert her interest in the properties abandoned by the trustee, including those in which respondent has recently re-acquired interests, was not before the district court.

The focus of appellantís motion was to clarify the distribution of property in the April 7, 1992 amended dissolution decree. The district court was not required to consider the belated nature of appellantís action or the partiesí rights as co-tenants at this time. We, therefore, reverse the district court order to the extent it found laches barred appellantís interest in the property. We remand for an order specifically listing all properties in which appellant is entitled to an interest and requiring respondent to account for the monies or other property or value received from the properties listed by the district court on remand.

III. Permanent Maintenance

A. Need for award

Respondent contends the district court made several errors in granting appellant permanent maintenance. First, respondent argues the district courtís approach to maintenance was fundamentally flawed because the district court was "under the mistaken impression that this was a motion for modification of maintenance" and, therefore, improperly placed the burden of proving that maintenance was not required on the respondent. He also contends the district court reverted to the concept of alimony and granted appellant maintenance based on her status as a former spouse rather than need.

Awards of spousal maintenance are governed by Minn. Stat. ß 518.552 (1998). Minn. Stat. ß 518.552, subd. 1, provides:

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 * * * .

No single factor is dispositive for determining the type or amount of maintenance. Erlandson v. Erlandson, 318 N.W.2d 36, 39 (Minn. 1982). Essentially, the court must balance the financial needs of the spouse seeking maintenance against the financial condition of the spouse from whom maintenance is sought. Jensen v. Jensen, 409 N.W.2d 60, 61 (Minn. App. 1987).

Although the district court mentioned in its February 22, 1999 order that it was considering a motion for modification of maintenance, we find no indication it placed the burden on respondent to prove maintenance was not required. Rather, in light of the district courtís extensive findings regarding both partiesí expenses and incomes, this appears to be a harmless clerical error. See Minn. R. Civ. P. 61 (stating harmless error to be ignored). The district court found, and respondent does not disagree, that appellant is totally disabled by progressive systemic sclerosis and, therefore, unable to earn any income. Her monthly expenses, including living assistance, are $7,600. The district court also found that the major piece of marital property awarded to appellant, the homestead, was foreclosed upon and lost shortly after the dissolution decree "through no fault of [appellant]." No other piece of income-producing property was awarded to appellant. Thus, appellant clearly meets the statutory standard for receiving maintenance. See Minn. Stat. ß 518.552, subd. 1.

B. Standard of living

Respondent claims the district court erred in evaluating appellantís needs in light of the partiesí pre-bankruptcy standard of living. He asserts that by utilizing the monthly expenses the trial court found for appellant as a starting point, the district courtís determination was based on the pre-bankruptcy standard of living rather than the partiesí standard of living at the time of the dissolution.

In support of his contention that this is a legal error, respondent cites the dissent in Otis v. Otis, 299 N.W.2d 114 (Minn. 1980), for the proposition that maintenance should be set at a sum "which will maintain [the wife] at a standard of living commensurate with what she and her husband enjoyed at the time of the dissolution." Id. at 118 (Otis, J., dissenting) (emphasis added) (citations omitted). But, Otis is merely stating a general principle. It does not deal with the situation in which the partiesí standard of living dropped significantly at the time of the dissolution. Additionally, Minn. Stat. ß 518.552, subd. 2(c), provides that in making a maintenance award, the court should consider the standard of living established during the marriage. Moreover, the requirement that the district court consider both partiesí incomes and expenses at the time it is making its award ensures that the maintenance obligorís income and ability to pay maintenance will be considered when a maintenance obligation is set.

In the instant case, the district court clearly indicated the level of maintenance he granted appellant did not approach the standard of living she had enjoyed during the marriage. We find no error in the district courtís evaluation of appellantís needs.

C. Gifts from family members

Following the partiesí dissolution, appellant received regular cash contributions from her father and brother. Respondent argues that the district court should have considered the money appellant received from her father and brother as part of appellantís financial resources in determining the amount of his spousal-maintenance obligation. In support of his argument, he relies on this courtís decision in Barnier v. Wells, 476 N.W.2d 795 (Minn. App. 1991), and the unpublished decision of Rich v. Rich, No. C8-96-2593, 1997 WL 406645 (Minn. App. July 22, 1997). Under the circumstances here, we find these cases unpersuasive.

In Barnier, the court held that if a gift is regularly received from a dependable source, it may properly be used to determine the amount of an obligorís child-support obligation. Barnier, 476 N.W.2d at 797. No published decision has extended Barnier from the child-support setting to the spousal-maintenance setting.

Respondentís citation of Rich also provides no assistance. Rich concerned a situation where the husband continually disobeyed the district courtís orders to pay support and misrepresented his income. Rich, 1997 WL 406645, at *4. We, therefore, held the district court did not abuse its discretion in including regular gifts from his parents as income in determining his spousal-maintenance obligation. Id. The obligorís efforts to disguise income and avoid support payments distinguish it factually from the instant case. Moreover, in Rich and Barnier, the courts focused on the financial position of the obligor, not the potential obligee.

Respondentís reliance in oral argument on Bissell v. Bissell, 291 Minn. 348, 191 N.W.2d 425 (1971), is also misplaced. In Bissell, the supreme court held the district court did not abuse its discretion when it modified the wifeís alimony after she received regular gifts from a meretricious relationship. Id. at 352, 191 N.W.2d at 427-28. In the instant case, we are not considering a modification of maintenance or a meretricious relationship; rather, we are concerned with establishing maintenance.

Moreover, gifts are not listed as income under Minn. Stat. ß 518.54, subd. 6 (1998), despite numerous examples of periodic compensation. As we noted in Barnier, regular gifts cannot be classified as enforceable obligations, and "an expected gift is not always a resource subject to child support." Barnier, 476 N.W.2d at 797. We conclude the distinction drawn between support obligors and obligees is also logical in the context of maintenance obligations. As the district court correctly observed, parents do not have a legal obligation to support their adult children, and including gifts from a parent in an obligeeís income shifts the maintenance burden from the obligor spouse to the obligeeís parent.

D. Respondentís income

Finally, respondent contends the district court improperly used gross income, rather than net income, in determining his ability to pay spousal maintenance. Based on the financial information provided by respondent, appellantís expert determined that he had gross annual income of $130,000. However, the expert concluded this amount was "tax-free" due to large losses carried forward from respondentís business. The expert testified the losses were so great that respondentís income would be tax-free for the foreseeable future.

We conclude the district court did not err in considering respondentís substantial losses carried forward in determining his ability to pay maintenance. Respondent did not contest the courtís factual conclusion regarding his tax situation, and the court is given discretion to rely on the testimony of expert witnesses. See Jorschumb v. Jorschumb, 390 N.W.2d 806, 812 (Minn. Ct. App. 1986) (stating the district court is given discretion to weigh the evidence and determine the credibility of witness testimony, and this court will not substitute its judgment), review denied (Minn. Aug. 27, 1986). Moreover, the record demonstrates respondent provided inadequate documentation for the expert to determine a precise net income figure. Thus, respondent cannot complain about the district courtís award of maintenance. See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (stating that appellant cannot complain where inadequate documentation leads, at least in part, to the district courtís decision regarding maintenance).

III. Attorney Fees

Both parties argue the district court erred in denying them attorney fees. An award of attorney fees in dissolution cases rests within the broad discretion of the district court and will not be disturbed absent a clear abuse of discretion. Lappi v. Lappi, 294 N.W.2d 312, 316 (Minn. 1980).

We conclude the district court was within its discretion to deny the partiesí requests for fees. There is evidence in the record supporting the district courtís conclusion that neither party was financially able to pay the otherís fees. See Minn. Stat. ß 518.14, subd. 1 (1998) (providing a court may award fees if it finds "the party from whom fees * * * are sought has the means to pay them").

Affirmed in part, reversed in part, and remanded.