This opinion will be unpublished and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

C9-99-1645

 

Connie Lynn Glazier, petitioner,

Appellant,

 

vs.

 

Gregory Ward Glazier,

Respondent.

 

Filed August 29, 2000

††††††††††† Affirmed in part, dismissed in part, and remanded; motions denied

Toussaint, Chief Judge

 

Wright County District Court

File No. F598237

 

Janice R. Tarvestad, 2219 Chelmsford Lane, Walden Woods, St. Cloud, MN 56301 (for appellant)

 

John C. McIntosh, P.O. Box 331, 200 North Central Avenue, Buffalo, MN 55313 (for respondent)

 

 

††††††††††† Considered and decided by Toussaint, Chief Judge, Halbrooks, Judge, and Parker, Judge.*


U N P U B L I S H E D†† O P I N I O N

TOUSSAINT, Chief Judge

In this appeal from a dissolution judgment, appellant-mother Connie Glazier challenges (1) the denial of her posttrial motion; (2) various aspects of the valuation and division of the property; (3) the finding of respondent-father Gregory Glazierís income and his support obligation; and (4) the denial of her request for maintenance.† Father moves to dismiss, to strike parts of motherís brief, and for attorney fees.† We dismiss those parts of the appeal requiring a full transcript, remand the issues of maintenance and the business valuation, otherwise affirm the district court, and deny fatherís motions to strike and for attorney fees.

D E C I S I O N

I.

††††††††††† Father seeks dismissal alleging mother did not provide a transcript adequate to allow review of the findings she challenges.† See Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968) (stating appellant must provide record adequate to allow review of alleged errors and failure to do so justifies dismissal).[1]† Review of the record presented on appeal shows that the partial transcript presented is inadequate to allow us to review motherís claims regarding her non-marital interest in the home, fatherís income, and the denial of the portion of her posttrial motion seeking amended findings.† Therefore, we dismiss those portions of the appeal.

††††††††††† Father also alleges that motherís brief contains statements not supported by the record and that those statements should be stricken.† See Minn. R. Civ. App. P. 110.01 (defining record on appeal as items presented to district court); Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (stating matters outside record on appeal ďmust be strickenĒ).† Having reviewed fatherís claims, motherís brief, and the record, we deny fatherís motion because the record supports the assertions in question, or because they have no impact on our decision, or both.†

††††††††††† Father seeks $750 in attorney fees but the affidavit of his attorney states only that motherís improper briefing caused him to incur unnecessary attorneys fees ďin an amount in excess of $500.Ē† Father cites no authority for the fees he seeks.† Under these circumstances, and because motherís counsel rather than mother was responsible for the briefing of motherís appeal, we will not award fees against mother.

II.

††††††††††† Mother challenges the district courtís denial of her posttrial motion.† Her posttrial motion had a caption mentioning five possible bases for relief.† Between each basis mentioned in the caption is ďorĒ or ďand/or,Ē rendering the caption unclear about what basis for relief was actually being invoked.[2]† This motion and caption renders it unclear on what basis relief is sought.† The text of the motion requests a ďnew trialĒ or ďthe requested relief.Ē† What type of non-new-trial relief is being requested, however, is not identified in the motion.† The motion does not specifically identify the relief sought.† The motionís text seeks relief alleging mistake, newly discovered evidence, and fraud.† Each of these bases for relief is listed both in Minn. R. Civ. P. 60.02 and in Minn. Stat. ß 518.145, subd. 2 (1998).† Minn. R. Civ. P. 60.02, however, does not apply to dissolution proceedings.† See Lindsey v. Lindsey, 388 N.W.2d 713, 716 n.1 (Minn. 1986) (stating district courts ďlack jurisdictionĒ under rule 60.02 to modify dissolution judgments).† Therefore, we infer that the basis of motherís posttrial motion is Minn. Stat. ß 518.145, subd. 2.† The motion seeks relief under inapplicable authority, which requires courts to infer the basis for the relief sought.

††††††††††† Regardless of the defects in mother's post-trial motion and assuming that a motion under Minn. Stat. ß 518.145, subd. 2 is proper in this context, motherís memorandum supporting the motion does not cite any of the basis for relief mentioned in the title or the text of her motion.† The motionís memorandum does not discuss the†authority allowing the relief sought.† Absent an argument addressing the basis for relief mentioned in the posttrial motion, it was not an abuse of the district courtís discretion to deny relief.† See Peterson v. Eishen, 512 N.W.2d 338, 341(Minn. 1994) (stating abuse of discretion standard of review applies to decisions under Minn. Stat. ß 518.145, subd. 2).[3]††

III.

††††††††††† Mother challenges the district courtís valuation of the business alleging that fatherís financial testimony was confusing.† Asset valuations are findings of fact and not set aside unless clearly erroneous.† Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975); see Minn. R. Civ. P. 52.01 (stating findings of fact not set aside unless clearly erroneous.)† The district court valued the business including inventory, a building, and fixtures.† It also found that the business was subject to several encumbrances.† The district courtís discussion, however, does not reveal its rationale for arriving at the figures it used in reaching its valuation.† Moreover, there may be a discrepancy between what father claims is the businessís income and the actual deposits into the businessís account.† We remand for the district court to reevaluate the business valuation, to make any necessary adjustments thereto, and to make findings explaining whatever value it ultimately finds to be appropriate.

IV.

††††††††††† The district court set fatherís support obligation at the guideline amount for what it found his income to be.† Motherís challenge to fatherís support obligation is based on her challenge to fatherís income.† Because we dismiss motherís challenge to the finding of fatherís income, we affirm fatherís support obligation.

V.

††††††††††† Mother challenges the district courtís refusal to award her maintenance.† Maintenance awards are discretionary with the district court.† Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).† While Minn. Stat. ß 518.552 (1998) lists factors to be considered in setting the amount and duration of maintenance, the issue is basically the recipientís need and ability to meet that need balanced against the obligorís financial condition.† Erlandson, 318 N.W.2d at 39-40.† Here, before accounting for his duty to provide the childrenís medical insurance, father has a monthly surplus while mother, after receipt of child support, has a monthly deficit.† The district court, however, denied maintenance without explaining why it did so.† We remand for the district court to reevaluate its maintenance decision, to make any adjustment to it that is equitable under the circumstances, and to make findings explaining its decision.† See Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989) (remanding maintenance where findings were insufficient to show district courtís consideration of relevant factors).†

VI.

††††††††††† Mother challenges the district courtís division of property and debt.† Debt apportionment is part of the property division.† Berenberg v. Berenberg, 474 N.W.2d 843, 848 (Minn. App. 1991), review denied (Minn. Nov. 13, 1991).† A district court has broad discretion when dividing property and will be affirmed if its division has an acceptable basis in fact and principle even though this court might have divided the property differently.† Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986).

The loan used to buy the interest in the building housing the business is secured by the home and the district court made mother responsible for the debt secured by the home.† Mother alleges this is improper because father got the business.† But a party ďmay be held liable for marital debts even though the other party receives the benefit of payment.Ē† Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984) (citation omitted).† Also, on this record, it is not clear that the entire debt secured by the home is a business debt.† This analysis addresses motherís allegation that father improperly used the home-equity loan interest as a business tax deduction.

††††††††††† The district court made father responsible for any claims against the parties by a third party.† Mother alleges this is unfair because the third party forgave that debt.† The district court, however, seems to have been aware that the loan may have been paid off when the judge assigned father the responsibility for that loan.† Absent some indication that making father liable for the loan made the property division inequitable, mother has not shown that the apportionment of this potential debt to father was an abuse of discretion.† Moreover, if mother is correct in her argument that the loan was to her and hence that partial forgiveness of the loan was a non-marital gift to her, any amount due on the loan would be her non-marital debt and she cannot be prejudiced by the apportionment of her non-marital debt to father.† Cf. Minn. R. Civ. P. 61 (harmless error to be ignored).

††††††††††† Mother alleges the district court made an unequal distribution of property upon the dissolution of the partiesí 20-year marriage and failed to make findings to support its property award.† An equal division of property is presumptively appropriate upon the dissolution of a long-term marriage.† Miller v. Miller, 352 N.W.2d 738, 742 (Minn. 1984).† The division, however, need not be equal, only equitable.† Lynch v. Lynch, 411 N.W.2d 263, 266 (Minn. App. 1987), review denied (Minn. Oct. 30, 1987).† Also, property divisions are to be supported by ďeither clear documentary or testimonial evidence or by comprehensive findings * * *.Ē† Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983) (emphasis added). †Here, even if the district court failed to make findings, because the transcript on appeal is incomplete, this court cannot know whether the portions of the transcript not submitted on appeal contained the testimony that would render findings unnecessary.† Also, most of the factors the district court is to consider in dividing property were addressed or were not at issue.† See Minn. Stat. ß 518.58, subd. 1 (1998) (listing factors to be considered in dividing property).

††††††††††† Affirmed in part, dismissed in part, and remanded; motions denied.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, ß 10.

[1] When a party challenges a trial courtís findings, the evidence directly or by reasonable inference supporting the findings ďshall be summarizedĒ by the party challenging the findings.† Minn. R. Civ. App. P. 128.02, subd. 1(c) (emphasis added).† Absent a transcript completely addressing the issues presented to this court for decision, mother cannot fulfill her obligation to cite the portions of the trial testimony that support the findings she challenges.†

[2] Motherís posttrial motion was entitled ďMOTION PURSUANT TO MINNESOTA STATUTE 518.145 OR RULES 52, 59 AND/OR MINN. RULES OF CIVIL PROCEDURE FOR AMENDED FINDINGS (52.02), NEW TRIAL OR HEARING (59.01), CLERICAL MISTAKE (60.01), AND/OR MISTAKE, INADVERTENCE, NEWLY DISCOVERED EVIDENCE OR FRAUD (60.02).Ē

[3] On appeal, mother alleges that the district courtís denial of her posttrial motion was an abuse of discretion because her posttrial memorandum satisfied Johnson v. Johnson, 563 N.W.2d 77, 78(Minn. App. 1997)(apparently referring to the portion of Johnson referring to the purpose for a motion for amended findings), review denied (Minn. June 30, 1997) and Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964).† But neither case was cited in either motherís motion or her supporting memorandum.† Moreover, mother alleges that her posttrial memorandum satisfied the Finden test by showing an intentional course of material misrepresentation or nondisclosure which mislead the court and counsel and produced a grossly unfair property settlement under Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989).† Finden articulates the test to be used when a party seeks to reopen a judgment under rule 60.02.† Maranda however, articulates the test to be used for vacating a judgment for fraud on the court; something different than the fraud listed as a basis for reopening a judgment in Minn. R. Civ. P. 60.02(c) and Minn. Stat. ß 518.145, subd. 2(3).† See Maranda, 449 N.W.2d at 165 (distinguishing ďfraudĒ from ďfraud on the courtĒ).† Thus, it is not clear how satisfaction of Maranda could constitute satisfaction of Finden.