This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Mary Ann Trewartha,
n/k/a Mary Ann Garrity, petitioner,
Mark Donald Trewartha,
Hennepin County District Court
File No. DC205435
Maria K. Pastoor, Pastoor Law Office, Ltd., 332 Minnesota Street, Suite E-1434, St. Paul, MN 55101 (for respondent)
Timothy D. Lees, Hennek Klaenhammer & Lees, P.A., 2595 Hamline Avenue North, Suite A, Roseville, MN 55113 (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
On appeal after remand from an order increasing his child support and requiring a division of stock, appellant Mark Donald Trewartha contends the district court abused its discretion in (1) calculating the parties’ incomes; (2) modifying appellant’s child support obligation; (3) distributing stock to respondent Mary Ann Garrity, his former spouse; and (4) requiring him to pay part of respondent’s attorney fees. Respondent filed a notice of review contending the district court abused its discretion in (1) selecting the date to value the stock at issue; and (2) failing to address her request for attorney fees for the remand hearing. We affirm.
D E C I S I O N
A district court has broad discretion to provide for the support of the parties’ children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Modification of child support is within the district court’s discretion and will not be reversed absent an abuse of discretion. Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993). An appellate court will not reverse a district court’s determination of net income used to calculate child support if it has a reasonable basis in fact. Hicks v. Hicks, 533 N.W.2d 885, 886 (Minn. App. 1995).
Because the parties in this case shared joint physical custody of their two sons, the district court was required to determine child support by calculating each party’s income, applying the child support guidelines to each, and then offsetting those obligations based on the amount of time each party has custody of the children. See Tweeton v. Tweeton, 560 N.W.2d 746, 747-48 (Minn. App. 1997), review denied (Minn. May 28, 1997).
A. Income Determination
Trewartha contends the district court erred in calculating his income by including the tax refund he received in 1997. We disagree. Trewartha failed to demonstrate that the district court included the refund he received in 1997 rather than the refund he received in 1998. Moreover, Trewartha failed to establish that he was prejudiced by the alleged error. See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993) (noting that appellant has burden on appeal to demonstrate error and that the error prejudiced appellant), review denied (Minn. June 28, 1993).
Trewartha also argues that the district court erred by not including Garrity’s income tax refund in determining her income. But Trewartha did not demonstrate that Garrity received an income tax refund in 1998. Instead he suggested that the district court should have added the refunds Garrity received in 1997 despite having argued that this was improper when determining his own income. On this record, we cannot say the district court’s income determination was not reasonably based in fact.
B. Child Support Obligation
Trewartha contends the district court abused its discretion in modifying his child support obligation because the statutory presumption for demonstrating a substantial change in circumstances was not satisfied. See Kuronen, 499 N.W.2d at 53 (stating that party moving for a modification of child support must demonstrate a substantial change in circumstances and that the change renders the existing award unreasonable and unfair); Minn. Stat. § 518.64, subd. 2(b)(1) (Supp. 1999) (establishing a rebuttable presumption that a current support order is unreasonable and unfair if application of the guidelines to the parties’ current situation results in an obligation of at least 20% and at least $50 per month higher or lower than the current support order). Here, we conclude the modification was permissible based on the district court’s findings that (1) Trewartha’s net monthly income had increased to $3,700, representing a $1,119 increase since the time of the dissolution; (2) Garrity’s reasonable monthly expenses had increased because she moved out of her parents’ home; and (3) Garrity had a monthly budget shortfall.
Trewartha argues that the district court abused its discretion because it departed upward from the support guidelines to equalize the parties’ incomes. When applying the child support guidelines to a joint physical custody case, the court should not use a child support award as a means of equalizing the parties’ incomes. Broas v. Broas, 472 N.W.2d 671, 673-74 (Minn. App. 1991). But we conclude that Broas is distinguishable from the facts here.
The district court in Broas departed from the guidelines to enable “each household to essentially meet its needs” by making an award that gave each party a nearly identical amount to meet expenses. Id. at 674. Here the district court addressed the appropriate factors under Minn. Stat. § 518.551, subd. 5(c) (Supp. 1999). The district court necessarily considered the children’s needs when it considered Garrity’s reasonable monthly family expenses. Moreover, the court properly considered the parties’ resources under Minn. Stat. § 518.551, subd. 5(c), which requires the district court to consider the parents’ resources and the children’s standard of living had the marriage not been dissolved when determining child support. In conclusion, while we would have preferred more detailed findings regarding the parties’ incomes and the need for a departure, we cannot say that the district court abused its discretion.
A property division is typically final and not subject to modification. Minn. Stat. § 518.64, subd. 2(e) (Supp. 1999). But, a property division may be reopened due to mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, or fraud. Minn. Stat. § 518.145, subd. 2 (1998). A district court’s decision whether to vacate a judgment and decree under this statute will not be disturbed absent an abuse of discretion. See Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996).
Trewartha received stock from his employer, Northwest Airlines, as part of a 1993 agreement in which airline employees received stock in exchange for wage concessions. Trewartha argues that this stock was awarded to him in the judgment and decree because it was covered by the provision awarding him retirement assets from his employment. But this court may defer to the district court’s conclusion that the stock was omitted from the judgment and decree. See Mikoda v. Mikoda, 413 N.W.2d 238, 242 (Minn. App. 1987) (stating that the district court’s construction of its own decree “has great weight”), review denied (Minn. Dec. 22, 1987). We conclude the district court’s determination that the stock was omitted from the judgment and decree was not an abuse of discretion based on the language of the decree and evidence regarding the nature of the stock.
A. Marital Property
“Whether property is marital or non-marital 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). Trewartha argues that the district court abused its discretion in determining that 179 of the shares of stock received by Trewartha were marital. We disagree.
The record indicates that Trewartha received approximately 388 shares in one of his employee stock accounts. Trewartha argues that only 106 shares could be treated as marital property because only 106 shares were contributed to the account prior to dissolution. But the evidence indicated that Trewartha had the right to receive the stock prior to the date he actually received the shares in his employee stock account. Moreover, the shares were received in exchange for wage concessions made in part during the parties’ marriage. The replacement of wages lost during the marriage represents payment for an injury to marital property subject to distribution upon dissolution of the marriage. See Ward v. Ward, 453 N.W.2d 729, 731 (Minn. App. 1990) (stating that proceeds from personal injury action that represent payment for injury to marital property, including wages lost during the marriage, are subject to distribution upon dissolution), review denied (Minn. June 6, 1990). Under these circumstances, we conclude the district court did not abuse its discretion in determining that 179 shares of the stock were marital property.
Trewartha further argues that the district court abused its discretion in equally dividing the shares of stock determined to be marital property. A district court has broad discretion in dividing property and will not be reversed absent an abuse of discretion. Rutten, 347 N.W.2d at 51. The court is required to make a “just and equitable” division of marital property based on relevant factors including
the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party. The court shall also consider the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker.
Minn. Stat. § 518.58, subd. 1 (1998).
Here, the district court determined that it was fair and equitable to equally divide the shares it determined were marital shares. Trewartha argues that the court erred in not awarding the stock entirely to him because under the marital termination agreement marital property was primarily given to the party responsible for accruing the asset. We disagree. While the district court could consider the marital termination agreement in dividing the stock, it was not required to divide the assets identically to those assets covered by the marital termination agreement. See Johnson v. Van Zee, 370 N.W.2d 471, 473 (Minn. App. 1985) (stating that parties’ stipulations were evidence but not binding on the court in modification motions). We conclude the district court acted within its discretion in dividing the stock equally.
C. Stock Valuation
An appellate court will not reverse a district court’s valuation of an asset unless it is “clearly erroneous on the record as a whole.” Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). An appellate court does not require the district court to be exact in its valuation of assets; it is only necessary that the valuation is within a reasonable range. Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979).
Garrity contends the district court abused its discretion when it selected a valuation date for the stock. We disagree. Generally, the court must value marital assets on the date of the prehearing settlement conference, unless the parties agree to a different date or the district court makes specific findings that another date is fair and equitable. Minn. Stat. § 518.58, subd. 1. Here, there was no prehearing conference and thus the district court permissibly exercised its discretion in selecting the date of the parties’ marital termination agreement as the valuation date. See Desrosier v. Desrosier, 551 N.W.2d 507, 510 (Minn. App. 1996) (stating that the district court did not abuse its discretion in selecting the separation date as the valuation date where there was no pretrial settlement conference).
Moreover, the selection of this valuation date gave Garrity the approximate value she would have had if the stock been disclosed at the time of the marital termination agreement. See Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983) (stating that in dividing omitted property, the goal is to place the injured party in the same position she would have enjoyed had a full disclosure been made). We conclude the district court did not abuse its discretion.
An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (1998), “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.” Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987).
Trewartha contends the district court abused its discretion in awarding Garrity $1,500 in attorney fees. We disagree. On remand, the district court awarded Garrity $1,500 in attorney fees based on its findings that (1) Trewartha earns almost three times what Garrity earns; (2) Garrity is unable to meet her monthly budget and has no funds to pay attorney fees; (3) an award of attorney fees is necessary to enable Garrity to assert her rights in good faith; and (4) Trewartha has the ability to pay the fees. These findings address the statutory factors and are supported by the record. See Minn. Stat. § 518.14, subd. 1. Therefore, the district did not abuse its discretion in awarding Garrity $1,500 in attorney fees for the modification proceeding.
Garrity argues that the district court abused its discretion in failing to separately address her request for attorney fees for the remand proceeding. But under the facts of this case, we cannot say the district court abused its discretion. While Garrity’s financial resources are limited, Trewartha’s resources are also limited due to his monthly child support obligation of $1,000 and reasonable monthly expenses of $2,347. It was within the district court’s discretion not to make an additional attorney fees award for the remand hearing.