This opinion will be unpublished and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:

Gloria A. Lehrer, petitioner,





Otto M. Lehrer III,



Filed May 30, 2000


Schumacher, Judge


Steele County District Court

File No. F798187



Bruce R. Mikeworth, 106 North Cedar Avenue, Owatonna, MN 55060 (for appellant)


Mark J. Rahrick, Chad A. Allen, Smith & Tollefson, 113 West Main Street, Post Office Box 271, Owatonna, MN 55060 (for respondent)



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

U N P U B L I S H E D   O P I N I O N


In this marital dissolution action, appellant Gloria A. Lehrer (wife) challenges the trial court's property division, maintenance award, and denial of attorney fees. We affirm.


            In February 1998, wife filed a petition for marital dissolution from respondent Otto M. Lehrer III (husband), seeking permanent maintenance, equitable property division, and legal fees.  After a three-day trial, the trial court issued the challenged dissolution judgment.

The parties were married on August 1, 1970, and separated in April 1997.  They reside in Owatonna, in Steele County.  They had two children, both of whom are now self-supporting adults.  During the marriage, husband worked as an auto mechanic, first for his father and then self-employed at Otto's Repair.  Since February 1998, husband has been working as a product specialist at Cabela's Retail, a sporting-goods store near Owatonna.

            During the marriage, wife was employed as a waitress and a day-care provider.  In the fall of 1996, wife worked as a temporary telephone operator.  Effective December 1, 1996, wife began receiving monthly social security disability benefits.  She also receives medical assistance.  She suffers from degenerative effects of diabetes and has undergone eye surgeries and extensive dialysis treatments such that her employment options are now extremely limited.

            Both parties have comparable educational backgrounds consisting of high school.  Wife has declared bankruptcy within the last five years as a result of her gambling debts.  Their only substantial asset was their home, which they sold on March 5, 1999, to their daughter and son-in-law.  Out of the proceeds of the home, the trial court awarded husband $14,507.60 and wife $20,034.02.

            In May 1997, after separation but before the dissolution filing, wife wrote seven bad checks to several casinos, for a total of $3,750.  Xact! Recovery and Verification, on behalf of the casinos, brought a collection action against wife.  The trial court found that this debt was incurred by wife after separation without any intentional act of husband and was wife's nonmarital responsibility.  Accordingly, the trial court assigned this debt "existing at the time of the pre-trial" to wife.  The trial court assigned credit card debts "existing at the time of the pre-trial" to husband.

            The parties owned a 1986 Ford F150 4 x 4 truck, which husband kept in "very good shape."  Husband testified that a loan officer had told him that the truck had a "book value" of $3,500.  The truck had a special fiberglass molded "topper," but that did not make a difference to the loan officer.  The trial court found that the truck was valued at $3,500 and awarded it to husband.

            Husband moved out of the house in April 1997.  Wife stayed in the house until February 1, 1999.  Wife left some items in the house that she thought would go to their children.  Wife thought the washer and dining table would go to the daughter and the freezer to the son.  The trial court awarded wife "all tangible items of personal property now in her possession," including a dining set and hutch, a washer and dryer, a freezer, a TV, and bedroom sets.  A trial exhibit listed items left in the home versus property in her possession.

            The trial court found husband's net monthly income to be $1,554.34 and his reasonable monthly living expenses to be $1,239.59.  The court noted:

Respondent's monthly expenses are reduced due to contributions made by Respondent's roommate.  There is no assurance that these contributions will continue.  The Court further notes that Respondent incurs greater expenses than Petitioner for clothing, transportation, and recreation due to his job requirements.  These work-related expenses are reasonable.


 Sometime after separation, husband moved in with roommate Pam Arnold and her two daughters.  At trial, Arnold testified that husband paid the $465 monthly rent, but that she paid for the utilities, telephone, and cable TV.

            Wife had claimed monthly expenses of $1,312 and sought a maintenance award of $600.  The trial court found wife's reasonable monthly living expenses to be $991.  The trial court stated:

With moderate support from Respondent, Petitioner is able to provide adequate self-support and meet her reasonable needs through her disability benefits and through interest income from her property settlement after considering the modest middle-class standard of living established during the marriage and all relevant circumstances.


The court set permanent spousal maintenance of $300 per month. The court ruled that the parties were to pay their respective attorney fees.


This court reviews property division and spousal maintenance under an abuse of discretion standard.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).   "Whether property is marital or nonmarital is a question of law, but a reviewing court must defer to the trial court's underlying findings of fact."  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).  The trial court's resolution of an issue must be "against logic and the facts on record before this court will find that the trial court abused its discretion." Rutten, 347 N.W.2d at 50.

            1.         Wife argues that the trial court erred in concluding that gambling debts incurred in May 1997 were her "non-marital responsibility."  Wife points out that the statutory date for valuing marital assets is the date of the pretrial conference absent an agreement otherwise.  Since the gambling debts were incurred prior to the valuation date, according to wife they should be considered marital debts.  Debts are apportionable between spouses as property in a property settlement in a dissolution proceeding. Filkins v. Filkins, 347 N.W.2d 526, 529 (Minn. App. 1984).

            Regarding a valuation date, Minnesota statute states:

The court shall value marital assets for purposes of division between the parties as of the day of the initially scheduled prehearing settlement conference, unless a different date is agreed upon by the parties, or unless the court makes specific findings that another date of valuation is fair and equitable. 


Minn. Stat. § 518.58, subd 1 (1998).  The statutory definition of marital property states: "All property acquired by either spouse subsequent to the marriage and before the valuation date is presumed to be marital property * * *."  Minn. Stat. § 518.54, subd. 5 (1998).  Since the gambling debts were incurred subsequent to marriage and before the valuation date, they are presumptively marital property.

            The statute provides that the presumption of marital property may be overcome by showing that the property is nonmarital. Minn. Stat. § 518.54, subd. 5.

            "Nonmarital property" means property real or personal, acquired by either spouse before, during, or after the existence of their marriage, which


            (a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;

            (b) is acquired before the marriage;

            (c) is acquired in exchange for or is the increase in value of property which is described in clauses (a), (b), (d), and (e);

            (d) is acquired by a spouse after the valuation date;  or

            (e) is excluded by a valid antenuptial contract.


Minn. Stat. § 518.54, subd. 5.  The gambling debts in this case do not fit any of the statutory categories of nonmarital property.  Clause (d) lists property acquired after the valuation date.  While the debts here were incurred after separation, they were acquired prior to the valuation date.

            But the trial court did not necessarily treat the gambling debts as nonmarital rather than marital property.  While the trial court's findings do state that the gambling debt is wife's "non-marital responsibility," the conclusion section assigning property does not refer to the property as either marital or nonmarital. Rather, the court described the gambling debt as "debts and obligations existing at the time of the pre-trial."  This denotes the correct valuation date.

            Regardless, while wife is correct in pointing out that the gambling debt is technically marital property, that does not mean that the trial court erred in assigning the debt to her.  A trial court does not have to make equal division of marital property, but rather a "just and equitable" division. Minn. Stat. § 518.58, subd. 1; White v. White, 521 N.W.2d 874, 878 (Minn. App. 1994).  "A trial court is not required to apportion marital debts but is only required to meet the just and equitable standard of property divisions." Berenberg v. Berenberg, 474 N.W.2d 843, 848 (Minn. App. 1991), review denied (Minn. Nov. 13, 1991).

Since wife incurred the gambling debt by writing bad checks on a gambling spree, it is just and equitable to assign the gambling debts to her.  Further, the trial court assigned to husband close to $10,000 in credit card debt that existed at the time of the pretrial conference.  Like the gambling debt, this debt is presumptively marital; yet it was assigned entirely to husband.  Because the division of the parties' debts is just and equitable, the trial court did not abuse its discretion.

2.         Wife argues that the trial court erred in valuing the 1986 Ford F150 4 x 4 pick-up truck.  "The lower court need not be exact in its valuation of assets; it is only necessary that the value arrived at lies within a reasonable range of figures."  Carrick v. Carrick, 560 N.W.2d 407, 413 (Minn. App. 1997) (quotation and citation omitted).  Here, husband testified that the book value of the truck was $3,500 but that he would not sell it at that price because of the special "topper."  Nevertheless, the court valued the truck at $3,500.  Wife contends that because husband testified that he would sell the truck for $5,000, the trial court erred in its valuation.  But the fact that husband would not sell the truck for book value does not mean that the book value is not within a reasonable range.

3.         Wife argues that the trial court erred in assigning to her property that she left in the home, apparently for use by their children.  The trial court did not address the issue of abandonment, assigning wife personal property in her possession including items that she apparently left in the house when she vacated the premises in February 1999 shortly before trial.  It is beyond dispute that husband left the house in April 1997 and that wife retained possession of the now "abandoned" items for over a year-and-a-half.  It is also clear from wife's testimony that she intended for their children to use the items she left.  Finally, it is unclear how wife was adversely affected by the assignment of abandoned items since the trial court did not offset the value of these items against any property division.  Cf. Minn. R. Civ. P. 61 (stating harmless error to be ignored).  In this context, the trial court did not abuse its discretion.

4.         Wife argues that the trial court erred by including in husband's reasonable monthly expenses costs that were in fact being paid by his roommate.  The roommate testified at trial that she paid for the utilities, telephone, and cable TV.  Yet the trial court budgeted husband $180 a month to cover those expenses.  The trial court found that there were no assurances that the roommate's contributions would continue.  While the award to husband may seem generous given the fact that he had not been paying those expenses, nothing in the record establishes that the trial court's finding of no assurances was clearly erroneous. 

            Wife also argues that the trial court erred in setting her reasonable monthly expenses by disregarding her needs, including housecleaning assistance, special dietary considerations, uncovered health-care expenses, and money for a car and gifts for grandchildren.  The trial court found that wife had $991 in reasonable monthly expenses, whereas wife had detailed $1,312 in monthly expenses.  The court found that the amount it budgeted was sufficient to meet wife's reasonable needs.  The record does not establish that the trial court's monthly expense finding was clearly erroneous.

            5.         Wife argues that the maintenance award was insufficient.  The trial court set monthly maintenance at $300 rather than the $600 requested by wife.  Since wife receives $579 in nontaxable social security disability plus medical assistance, an award of $600 would have been greater than the $991 finding of reasonable monthly expenses.  Further, as husband's net monthly income is about $1,500, maintenance of $600 would have reduced his monthly income after maintenance below the $1,239.59 finding of his reasonable monthly expenses.  In this context, the maintenance award was not an abuse of discretion.

            6.         Wife asserts that denial of attorney fees was an abuse of discretion.  A district court shall award attorney fees provided the court finds that the fees are necessary for the good-faith assertion of the party's rights, the party from whom the fees are sought has the ability to pay them, and the party to whom the fees are rewarded does not have the means to pay them.  Minn. Stat. § 518.14, subd. 1 (1998).  This court will not reverse the refusal to award attorney fees absent a clear abuse of discretion.  Kitchar v. Kitchar, 553 N.W.2d 97, 104 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).

            In this case, the trial court concluded that the parties should pay their respective attorney fees and costs.  The trial court did not find that wife lacked an ability to pay her fees.  The trial court awarded wife $20,034.02 out of the proceeds of the sale of the house.  As of March 17, 1999, wife's attorney fees balance was $5,227.  On these facts, the denial of attorney fees was not a clear abuse of discretion.