This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).








In Re the Marriage of:

Donald G. Mishler, petitioner,





Diane C. Mishler,




Filed April 18, 2000


Peterson, Judge



Ramsey County District Court

File No. F5971133



Thomas M. Brudvig, 210 Rosedale Towers, 1700 Highway 36 West, Roseville, MN  55113-4015 (for appellant)



Timothy W.J. Dunn, 1616 Firstar Center, 101 East Fifth Street, St. Paul, MN  55101-1808 (for respondent)



            Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Anderson, Judge.

U N P U B L I S H E D     O P I N I O N


            In this appeal from a dissolution judgment and an order amending the judgment, appellant husband challenges the award of permanent maintenance and the property and debt distribution.  We affirm.


            Appellant-husband Donald G. Mishler and respondent-wife Diane C. Mishler were married in 1972 and separated in 1996.  The two children of their marriage were adults when the dissolution proceeding began.

            Husband, age 52, has a high school degree plus two years of college and has worked most of his life in the construction business.  Since January 1998, he has worked as a field construction supervisor.  His net monthly income at the time of trial was $3,173. 

            Wife, age 49, has a high school education.  During the first 14 years of the marriage, she held various part-time jobs, but worked primarily as a homemaker and mother.  In 1984, wife started working as a part-time teller for a credit union, and this became a full-time position in 1986.  She has reached the top of her pay scale as a teller.  Her net monthly income from employment is $1,708.94.  She also owns nonmarital property that produces $317 of net monthly income, which makes her total net monthly income $2,026.  She testified at trial that her physical and emotional health are not good.  At the time of trial, she was scheduled to have surgery and was seeing a counselor for depression. 

            During their marriage, the parties maintained a middle-class lifestyle.  When they separated, they owned a home worth approximately $246,000 encumbered by a $148,000 mortgage.  They also owned two trucks, a motorcycle, a motorcycle trailer, and a timeshare unit in Florida.

            The trial court found that husband’s net monthly income of $3,173 and reasonable expenses of $2,095, produced a $1,078 surplus each month and that wife’s net monthly income and reasonable expenses of $3,303 produced a $1,277 shortfall each month.  The trial court concluded that, considering the standard of living established during the marriage, wife lacked sufficient income to provide for her reasonable needs and was entitled to permanent spousal maintenance of $1,078 per month.  

            When dividing the marital estate, the trial court awarded husband a truck, the motorcycle and trailer, tools, equipment, an air compressor and building materials, an IRA account, and a portion of his pension.  The trial court awarded wife a truck, the personal property in her possession, and her credit union retirement fund.  The trial court estimated that for each spouse, the total value of these assets was $48,514.35.  The trial court next awarded wife the timeshare unit, which it valued at $10,000, and gave husband an additional $10,000 from his pension.  The trial court then divided the balance of husband’s pension and awarded husband $24,975 and wife $22,274.  The trial court ordered the parties to sell the marital homestead and to use the proceeds to first pay the mortgage loan balance and the costs of selling the property.  Wife was to receive the first $39,598 of the remaining proceeds.  Of this amount, $24,450 was to equalize for husband’s receipt of insurance proceeds for a truck that wife purchased with nonmarital assets, $4,600 was to equalize for husband’s receipt of other insurance proceeds, $4,500 was to equalize for husband’s receipt of excess loan funds from refinancing the parties’ motorcycle, and $6,048 was one-half of a marital debt that was secured by wife’s truck.  The balance of the homestead sale proceeds was to be divided equally between the parties.

            In response to husband’s postjudgment motion, the trial court modified the property distribution by reducing the value of the tools, equipment, air compressor, and building materials awarded to husband from $15,000 to $10,000 and by reducing the initial payment to wife from the homestead sale proceeds from $39,598 to $27,598.


I.  Spousal Maintenance

            The standard of review on appeal from a trial court’s determination of a maintenance award is whether the trial court abused the wide discretion accorded to it.


Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  We will not find an abuse of discretion unless the trial court reached a clearly erroneous conclusion against logic and the facts on record.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

            A trial court may award maintenance if it finds that the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs or is unable to provide adequate self-support through appropriate employment.  Minn. Stat. § 518.552, subd. 1 (1998).  When determining the amount and duration of maintenance, the court must consider the factors in Minn. Stat. § 518.552, subd. 2 (1998), but the basic issue in setting maintenance “is the financial need of the spouse receiving maintenance, and the ability to meet that need, balanced against the financial condition of the spouse providing the maintenance.”  Novick v. Novick, 366 N.W.2d 330, 334 (Minn. App. 1985).  When the need for a permanent maintenance award is uncertain, the court shall order a permanent award, leaving the order open for later modification.  Minn. Stat. § 518.552, subd. 3 (1998).

            Husband argues that the permanent maintenance award is against logic and the facts on the record because it makes him unable to provide for his needs, while allowing wife significantly more monthly income despite the fact that she has considerable cash assets available.  But husband does not dispute the trial court’s determination of his monthly income, and he has not demonstrated that the trial court erred in determining wife’s net monthly income or either party’s reasonable monthly expenses.  The maintenance award allows him to pay his reasonable monthly expenses and leaves wife with a monthly shortfall.  Also, the trial court included wife’s investment income in her net monthly income.  The trial court acted within its discretion in not requiring her to use her cash assets to meet her current needs.  See Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985) (in determining maintenance award, courts normally do not expect spouses to invade principal of their investments to satisfy monthly financial needs).

            Husband argues that wife has consciously decided to limit her financial resources and her ability to improve herself by voluntarily electing not to pursue other employment or education.  The trial court found that wife

is at the top of her pay scale and nets from her job $1,709.00 per month.  There has been no testimony that provides the Court with any other fact but to find that [wife] is currently employed at the highest position and at the highest salary that is available to her.


The trial court also found that husband

offered no testimony that [wife] could benefit economically from retraining or education, therefore, the Court finds that [wife], because of her age and her current education, will not necessarily benefit economically from further education or retraining and finds that [wife] is at her highest position and pay that she could attain.


            Husband does not cite any evidence that indicates that either of these findings is clearly erroneous.  Because there is no evidence that wife is, or can become, qualified for available employment where she could earn a greater income, there is no basis to conclude that the trial court erred.  See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (appellate courts cannot assume district court error).

            Husband argues that the trial court went outside the record to find that wife missed opportunities and lost income, seniority, and retirement benefits during the early years of the marriage.  We understand husband’s argument to be that wife did not prove that she lost the benefits of employment during the years when she stayed home to care for the children because she did not present evidence that there were employment opportunities available to her.

            Wife does not claim that she presented any such evidence.  But even if the trial court’s determination that wife lost employment opportunities is clearly erroneous because wife did not present such evidence, husband does not explain how this error caused prejudice.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (to prevail on appeal, appellant must show both error and that error caused prejudice); Minn. R. Civ. P. 61 (harmless error to be ignored).  The evidence that was presented demonstrated that wife did not work outside the home until the children started school and for several years after that she worked only part time.  During those years, she earned only a part-time income, she did not advance in her employment, and she did not acquire seniority or retirement benefits.  

            The trial court awarded wife permanent maintenance only after it addressed all of the relevant factors under Minn. Stat. § 518.552, subd. 2 and concluded that she lacked sufficient income to provide for her reasonable needs considering the standard of living established during the marriage.  Employment opportunities forgone by the spouse seeking maintenance is one of eight factors to be considered under section 518.552, subd. 2.  The statute does not require a finding favorable to the spouse seeking maintenance on all eight factors.  

            The record supports the trial court’s findings that wife lacks sufficient monthly income to provide for her reasonable needs considering the standard of living established during the marriage and that husband has the ability to meet those needs.  The trial court did not abuse its discretion by awarding wife permanent maintenance of $1,078 per month.

II.  Marital Property Division

            In a marital dissolution, “the court shall make a just and equitable division of the martial property.” Minn. Stat. § 518.58, subd. 1 (1998).  A trial court has broad discretion when dividing property, and its decision will not be overturned if it has a reasonable and acceptable basis in fact and principle.  March v. March, 435 N.W.2d 569, 571 (Minn. App. 1989).  “An equitable property distribution will be upheld, even though not necessarily equal.”  Id.  “The division of martial debts is treated in the same manner as division of assets.”  Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986) (citing Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984)), review denied (Minn. May 29, 1986).   

            Husband argues that the trial court erred by (1) assigning him a debt secured by wife’s truck, (2) overvaluing the motorcycle awarded to him, (3) crediting him with $23,000 he received from an insurance settlement, (4) crediting him with $4,600 he received from a second insurance settlement, (5) failing to account for $35,811.66 he paid wife before trial, and (6) creating a lien against his share of the homestead sale proceeds for a portion of wife’s attorney fees.

            Husband does not make any argument or cite any authority to support his assertion that the property division is unfair and unsupported in fact and law.  He simply describes what he believes would be a fair and equitable property division.  An assignment of error based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection.  State by Humphrey v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  Because there is no obvious error in the trial court’s division of property, husband’s assignments of error are waived.

We also note that husband fails to recognize that the property distribution was influenced by his failure to cooperate in the discovery process, which affected his credibility.  The trial court found that husband

did not cooperate in the discovery in this action.  [Husband] did not disclose the settlement of the car accident, did not disclose the account he had in his mother’s name that contained the car settlement proceeds, did not provide tracing of funds that was asked for in interrogatories, did not update his discovery when requested twice to do so, and did not supply copies of his bank records.  [Husband’s] actions and lack of action leaves this Court with the opinion that [husband] is at best negligent, or worse, not trustworthy.  Therefore, the court gives [wife’s] testimony more weight.


This court gives due regard “to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.