This opinion will be unpublished and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:

Linda Sue Van’t Hul, petitioner,





Larry Dale Van’t Hul,



Filed June 26, 2000


Willis, Judge


Pipestone County District Court

File No. F198259


Benjamin Vander Kooi, Jr., Vander Kooi Law Offices, P.A., 127 E. Main Street, P.O. Box 746, Luverne, MN  56156 (for respondent)


Edward Kelly, Mueller-Lowther Law Firm, 512 2nd Street North, P.O. Box 485, New Ulm, MN  56073 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Larry Dale Van’t Hul argues that the district court erred in establishing the marital-equalization payments arising from the dissolution of his marriage to respondent Linda Sue Van’t Hul and abused its discretion in refusing appellant’s posttrial motion for amended findings or, in the alternative, a new trial.  We affirm.


Appellant and respondent were married in September 1974.  During the marriage, the couple operated a farm in Pipestone county.  Respondent filed for divorce in 1998, and the district court dissolved the parties’ marriage on May 6, 1999.  The court awarded most of the parties’ fixed assets to appellant and ordered appellant to make a marital-equalization payment of $107,175 to respondent in installments of $26,800 on July 1, 1999; $10,000 on July 1 in 2000, 2001, 2002, and 2003; and the balance on July 1, 2004.   

            On May 28, 1999, appellant filed a motion for amended findings or, in the alternative, a new trial.  He argued, in part, that the district court should amend its findings to account for the tax consequences arising from liquidating assets to make the marital-equalization payments or, in the alternative, the court should order a new trial to hear evidence on the issue.  The district court denied appellant’s motion, and he appeals.   


Appellant argues that the district court abused its discretion by not taking into account the tax consequences to appellant of liquidating assets to meet his equalization-payment obligation.  This court will affirm a district court’s decision to not consider tax consequences arising from a property division absent an abuse of discretion.  Aaron v. Aaron, 281 N.W.2d 150, 154 (Minn. 1979).

            A district court may consider the tax consequences of a property division as one of many factors in arriving at an equitable division of property, but tax considerations are not controlling.  Johnson v. Johnson, 277 N.W.2d 208, 213 (Minn. 1979).  And a court may not speculate as to the tax consequences of its order.  O’Brien v. O’Brien, 343 N.W.2d 850, 854 (Minn. 1984).  Considering tax consequences is appropriate only where a party must engage in taxable activity shortly after the dissolution to comply with the district court’s award.  Salstrom v. Salstrom, 404 N.W.2d 848, 853 (Minn. App. 1987); Hattstrom v. Hattstrom, 385 N.W.2d 332, 336 (Minn. App. 1986), review denied (Minn. June 30, 1986); see Aaron, 281 N.W.2d at 153 (stating that court should consider tax consequences where sale of assets is required or likely to occur within short time after dissolution); Helland v. Helland, 354 N.W.2d 591, 593 (Minn. App. 1984) (holding that predicting tax consequences years into future is inappropriate because it is mere speculation), review denied (Minn. June 3, 1985).  And a party must present the district court with credible evidence demonstrating what assets he must sell to comply with the court’s property-division order and to what extent he could shelter any gain from taxation, so that the court may calculate the resulting tax liability with a reasonable degree of certainty.  See Miller v. Miller, 352 N.W.2d 738, 744 (Minn. 1984); Nemitz v. Nemitz, 376 N.W.2d 243, 248 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985); Pekarek v. Pekarek, 362 N.W.2d 394, 397 (Minn. App. 1985).

            At trial, appellant’s banker testified that appellant’s operating loan was current and that his farming operation generated sufficient cash flow to allow the bank to provide him with a mortgage of up to $50,000 on the homestead, which was unencumbered by any other loan.  See generally Hattstrom, 385 N.W.2d at 337 (finding party’s ability to use assets as collateral for loan to pay property settlement is relevant to determining whether sale of assets is imminent).  While appellant asserted in his trial memorandum that there would be tax consequences if the court were to force a sale of the parties’ assets, appellant presented no evidence at trial showing what those consequences would be.  Appellant requested that the court order that appellant retain the parties’ farm-related assets.  But appellant did not address the tax consequences resulting from a marital-equalization payment that would be required for the property division to be equitable if he retained those assets.  Rather, appellant requested that the district court order an “inequitable” property division by limiting appellant’s equalization-payment obligation to $40,000.  Appellant presented no evidence demonstrating which, if any, assets he would be required to sell to make an equalization payment.  And appellant presented no evidence demonstrating what the tax consequences of any such sale would be.  Because there was no evidence before the district court showing that appellant would have to sell any assets shortly after the dissolution of the parties’ marriage and appellant did not present the district court with any evidence of potential tax liabilities, we conclude that the district court did not abuse its discretion by not considering the tax consequences that could result from the property division and the resulting marital-equalization payment. 

            Appellant argues that affidavits attached to his motion for amended findings or a new trial sufficiently demonstrate that a sale of assets was imminent and that, therefore, the district court abused its discretion by denying appellant’s motion.[1]  Appellant’s argument fails for three reasons.

            First, a district court may not consider new evidence in considering a motion for amended findings.  Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974).  And while a district court may consider affidavits accompanying a new-trial motion, Chin v. Zoet, 418 N.W.2d 191, 195 n.2 (Minn. App. 1988), “it is imperative that the request for [a] new trial and the Rule 59.01 basis therefor must be stated explicitly and with specificity.”  Swartwoudt v. Swartwoudt, 349 N.W.2d 600, 602 (Minn. App. 1984) (emphasis added), review denied (Minn. Sept. 12, 1984).  Appellant did not state explicitly and with specificity the Rule 59.01 basis for his new-trial motion.

            Second, the affidavits do not present the district court with evidence that would allow the court to determine with any degree of certainty the tax consequences of compliance with its order.  See Miller, 352 N.W.2d at 744; Nemitz, 376 N.W.2d at 248; Pekarek, 362 N.W.2d at 397.  The one-page, handwritten affidavit of the Extension Service employee purports to present the tax consequences of an immediate sale of all livestock, crops, machinery, and land.  But there is no evidence that appellant’s farm-related assets would have to be sold to satisfy his equalization-payment obligation or whether a sale of assets would be required immediately or at some time in the future.  And the Extension Service employee’s affidavit does not describe any of the underlying facts necessary to determine the purported tax consequences, such as the applicable tax rates or appreciation or depreciation in the value of the assets.    

            Finally, even if the district court erred by not considering the tax consequences of its order, the error is harmless because there is no showing that the court abused its broad discretion in its division of the parties’ marital property.  See Catania v. Catania, 385 N.W.2d 28, 31 (Minn. App. 1986).  “[T]he ultimate division of the assets, based on many factors in addition to taxes, remains within the [district] court’s discretion.”  O’Brien, 343 N.W.2d at 854.  This court must affirm a district court’s division of property if it has an acceptable basis in fact and principle even though this court would have taken a different approach.  Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984).  And the division of property need not be mathematically equal; it need only be just and equitable.  Lynch v. Lynch, 411 N.W.2d 263, 266 (Minn. App. 1987), review denied (Minn. Oct. 30, 1987).

The district court noted that it attempted to structure the property award equitably while at the same time allowing appellant to continue farming.  And appellant did not present the district court with sufficient information regarding the tax consequences of the order to allow the court to conclude with any degree of certainty the likelihood that those consequences would result.  Therefore, there is no basis to conclude that the district court abused its broad discretion in ordering the division of the parties’ property.    



[1] Appellant’s banker stated in an affidavit that appellant was then past due on his operating loan and that the bank would no longer be willing to give him an additional loan.  Appellant also attached an estimate, provided by an employee of the University of Minnesota Extension Service, of the tax consequences of liquidating appellant’s farm-related assets.