This opinion will be unpublished and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:

Pamela Jo Nelson, petitioner,





Phillip Gary Nelson,




Filed August 1, 2000

Affirmed; motions denied

Halbrooks, Judge


Sherburne County District Court

File No. F498511



Jennifer A. Beckman, Tera L. Lungstrom, Beckman & Steen, 14550 Excelsior Blvd., Suite 206, Minnetonka, MN 55435 (for respondent)


Richard J. Sheehan, Harvey, Sheehan & Capistrant, Ltd., One Corporate Center, Suite 555, 7401 Metro Blvd., Minneapolis, MN 55439-3033 (for appellant)



            Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N


            Following entry of judgment in a dissolution proceeding, appellant challenges the district court’s property valuations, determinations with regard to dissipated assets, income determinations for child support and other purposes, award of a property interest to a minor child, real and personal-property division, allocation of debt, and award of attorney fees.  Respondent raises a jurisdictional challenge to the appeal on the ground that appellant’s posttrial motion was improper for purposes of extending the time for appeal.  In addition, respondent made motions to strike appellant’s reply brief and for attorney fees on appeal.  We affirm the district court and deny respondent’s motions. 


            Appellant Phillip Gary Nelson and respondent Pamela Jo Nelson were married on December 20, 1991.  Respondent had one child prior to the marriage, J.A.H.  The parties had two children during the course of their marriage, K.J.N. and C.P.N.  The parties separated on December 23, 1997, and respondent commenced dissolution proceedings on January 21, 1998. 

            Trial on this matter occurred on January 22, 1999, and February 22 and 23, 1999.  The parties stipulated to joint legal custody of K.J.N and C.P.N., respondent’s physical custody of the children with reasonable visitation for appellant, and the sale of the parties’ homestead.  Included among the disputed issues were the valuation of assets, depletion of certain assets, determination of appellant’s income for child-support purposes, division of debts, income-tax responsibility, the distribution of the sale proceeds in the homestead, and assertions of a nonmarital component in respondent’s retirement account. 

            Appellant is self-employed as a carpet-layer.  The court found that appellant’s monthly net income is $3,536.64 and his reasonable monthly expenses are $1,057.

            Respondent is employed by American Family Insurance.  The court determined that her net income is $1,551.60 per month, further reduced by two loan repayments to the amount of $1,211.58.  Respondent’s reasonable monthly expenses were found to be $3,3640.89.

            Appellant was ordered to pay $1,061 for child support and $100 for day care per month.

            The parties purchased their home with a down payment of $9,100.  Both parties testified that the $9,100 was received as part of a lump-sum payment from the Social Security Administration for the support of J.A.H., following her father’s death.  The court concluded that appellant has no legal claim to the lump-sum payment.  In an effort to assure J.A.H.’s interest in the $9,100, the trial court awarded her an independent interest in the homestead in the form of a mortgage.  The trial court ordered repayment of $9,100 to J.A.H. upon the sale of the home, prior to any other division of the proceeds.

            Respondent has a pension plan and 401(k) plan through her employment.  The court found that she has nonmarital interests of $2,498.79 in the pension plan and $11,971.48 in the 401(k). 

The parties received a combined 1997 federal and state income-tax refund of $3,056 that appellant applied to his estimated taxes for 1998 without respondent’s consent.  The trial court found that the refund is marital property and ordered that it be applied to appellant’s portion of the property division.

            With respect to distribution of the parties’ marital debt, the trial court found that respondent had reduced the debt by $5,422 through automatic payroll deductions for 401(k) loan repayments.  Appellant was found to have contributed $392.  As a result, the trial court ordered that respondent be credited in the property distribution with one-half of the debt reduction since the separation in the amount of $2,515 and an additional $659.81 she paid for a charge on a credit card that appellant used for a personal trip.

            The trial court made no finding regarding depletion of assets, noting that the information furnished to the court was insufficient to make a particularized finding.  The trial court further noted that most of the assets were included in the distribution of property and debt between the parties.

            Appellant was ordered to pay respondent’s attorney fees and costs in the amount of $6,722.10, based on the disparity between the parties’ incomes and appellant’s ability to pay.  The judgment was entered May 24, 1999. 

            Following the entry of the judgment, appellant brought a motion for amended findings and conclusions of law, or in the alternative, for a new trial on the merits.  In an order dated June 21, 1999, the trial court dismissed the motion as untimely.  But on July 9, 1999, the trial court issued an order reinstating appellant’s posttrial motion on the ground that the court’s June 21, 1999 order erroneously concluded that the motion was untimely.  A hearing occurred on July 14, 1999, and the motion was denied on the merits in an order dated August 19, 1999.  Appellant was ordered to pay respondent her attorney fees and costs incurred in defending the motion. 

            The appeal from the original judgment, along with the trial court’s dismissals of the posttrial motions, was filed October 20, 1999.  This court questioned jurisdiction and requested memoranda from the parties on the issue of whether or not appellant’s posttrial motion extended the time to appeal the May 24, 1999 judgment.  Based on the parties’ briefs, this court ruled that appellant’s posttrial motion was timely.  But because the parties did not provide this court with a copy of appellant’s posttrial motion and the trial court file had not been received, the issue of whether appellant’s posttrial motion was proper under Minn. R. Civ. App. P. 104, subd. 2, was referred to this panel to be considered on the merits with the other issues. 


            Unless a different time is provided by statute, an appeal may be taken from a judgment within 60 days after its entry.  Minn. R. Civ. App. P. 104.01, subd. 1.  But if a party serves and files a “proper and timely” motion of a type specified in the rule, the time for appeal from the order or judgment that is the subject of the motion runs from the service by any party of notice of filing of the order disposing of the last outstanding motion.  Minn. R. Civ. App. P. 104.01, subd. 2.  As discussed above, the appellant’s posttrial motion was found to be timely.  The question remains as to whether the motion was proper.  If appellant’s motion for amended findings or a new trial was improper, this court would lack jurisdiction to hear appellant’s appeal filed October 20, 1999, because it would not be subject to any time extension.  See Minn. R. Civ. App. P. 104.01, subd. 1.

            After this appeal was argued, the supreme court held that, to be a “proper” posttrial motion extending the time to appeal under the rule, a motion must comply with the rules of civil procedure by, among other things, stating the grounds for the motion with particularity, setting forth the relief sought with any required supporting documentation, and being served and filed with the appropriate signatures in place.  Madson v. Minnesota Mining & Mfg. Co., 612 N.W.2d 168, 171-72 (Minn. 2000).  Here, appellant’s motion seeks amended findings of fact and conclusions of law or a new trial.  His motion identifies findings to be challenged, and alleges, among other things, that the evidence does not support the trial court’s findings and that the trial court’s conclusions are contrary to law.  These are valid bases for a motion for amended findings or a new trial.  See Minn. R. Civ. P. 52.02 (allowing party to move trial court to amend findings); 59.01(g) (allowing new trial to be granted if trial court’s decision not justified by evidence or contrary to law).  Appellant submitted an affidavit to support his motion and there is no dispute that appellant’s documents contain the appropriate signatures.  Thus, the first prong of Madson is satisfied.

            Madson continues:

            In order to be “proper,” the posttrial motion must also be “authorized.”  * * *  [T]he test for determining whether a motion is authorized, and therefore proper, is to determine whether on the face of the document the party has filed a motion that is expressly allowed under [Minn. R. Civ. App. P. 104.01, subd. 2].


612 N.W.2d at 172.  Motions for amended findings and for a new trial are listed in rule 104.01, subd. 2, as items (b) and (d), respectively.  Thus, appellant’s posttrial motion satisfies both prongs of Madson, and was a “proper” motion under rule 104.01, subd. 2.  As a result, the appeal was timely and this court has jurisdiction to address its merits.

1.         Property Division


            The trial court is given broad discretion regarding the division of property in marriage dissolutions and will be reversed only for a clear abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 296 (Minn. App. 1998) (citation omitted), review denied (Minn. Feb. 18, 1999). 

[O]n review [we] must affirm the trial court’s division of property if it had an acceptable basis in fact and principle even though this court may have taken a different approach.


Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984) (citations omitted).  “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) (citations omitted).  An appellate court will not reverse a trial 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) (citations omitted). 

            A.        Property Valuations

            Appellant contends that the trial court erred in its valuation of the parties’ Polaris ATV (“six-wheeler”) and 1991 Aerostar van.  While appellant disputes the dollar amounts assigned by the trial court, he fails to offer any other evidence of the values of these items, other than reiterating the estimated values that he and respondent testified to at trial.  Respondent correctly points out that appellant mischaracterizes her testimony with regard to the value of the Aerostar van.  Respondent testified that she “was hoping” to get $3,000 for the van when she sold it, not that the van’s value is $3,000.

In Carrick v. Carrick, 560 N.W.2d 407, 413 (Minn. App. 1997), the appellant disputed dollar amounts but offered no additional information as to the proper values, and this court concluded that the district court properly exercised its discretion in establishing the value of disputed property.  “The assignment of a specific value to an asset is a finding of fact and will not be set aside unless it is clearly erroneous.”  March v. March, 435 N.W.2d 569, 572 (Minn. App. 1989) (citation omitted). 

Precision is not required of the trial court in the valuation of assets in a dissolution proceeding; it is only necessary that the value arrived at lies within a reasonable range of figures.


Fick v. Fick, 375 N.W.2d 870, 873-74 (Minn. App. 1985) (citing Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979)).  In the present case, the only values the trial court had to go on were the estimates made by the parties.  Based on the record taken as a whole, the court’s value determinations are not clearly erroneous.  The trial court properly exercised its discretion in establishing the value of these items. 

            B.        Dissipated Assets

            Dissipation of assets was an issue raised by both parties during trial.  On appeal, appellant asserts that respondent dissipated assets in the amount of $6,800, and that the district court erred in not accounting for it in its findings.

If the court finds that a party to a marriage, without consent of the other party, has in contemplation of commencing, or during the pendency of, the current dissolution * * * transferred, encumbered, concealed, or disposed of marital assets except in the usual course of business or for the necessities of life, the court shall compensate the other party by placing both parties in the same position that they would have been in had the transfer, encumbrance, concealment, or disposal not occurred. 


Minn. Stat. § 518.58, subd. 1a (1998) (emphasis added). 

Here, the trial court addressed the alleged dissipation in paragraph XVIII of its findings:

The Court finds child support arrearages in the amount of $2,600.00 because of [appellant’s] failure to pay child support throughout the pendency of these proceedings.  The [appellant] has also been late in his child support payments to [respondent] to the detriment of the [respondent] and the parties’ minor children.  Due to [appellant’s] failure to make child support payments and in other cases his failure to make timely payments, the Court finds that the [appellant] should not be heard to complain about any depletion of assets.  The evidence demonstrates [respondent’s] inability to support herself and the parties’ children because of [appellant’s] failure to make child support payments.


(Emphasis added.)  The last two sentences of the finding indicate that the trial court believed that appellant’s failure to make timely payments of his child support and other obligations required respondent to use the assets in question.  Thus, the trial court functionally found that respondent used the assets for the “necessities of life.”  Viewing the record in the light most favorable to this finding, the finding is not “clearly erroneous.”  See Minn. R. Civ. App. P. 52.01 (findings not set aside unless clearly erroneous); Lossing v. Lossing, 403 N.W.2d 688, 690 (Minn. App. 1987) (stating, in context of property division, record viewed in light most favorable to trial court findings).  We affirm the trial court’s refusal to compensate appellant for respondent’s use of the assets in question.[1] 

            C.        Income Tax Filing and Withholding

            Appellant complains that the trial court ordered each party to file separate income tax returns for 1997 and 1998 and that each was awarded their respective federal and state withholdings.  Appellant characterizes this as an inequitable asset division.  Again, division of property in marriage dissolutions will be reversed only for a clear abuse of discretion.  Crosby, 587 N.W.2d at 296. 

Appellant offers no argument why these determinations regarding taxes are inequitable in the context of the overall proceeding.  Division of marital property need not be mathematically equal; it need only be just and equitable and supported by the record.  Olsen v. Olsen, 552 N.W.2d 290, 294 (Minn. App. 1996), aff’d, 562 N.W.2d 797 (Minn. 1997).  At trial, respondent testified as to her concerns and experiences regarding appellant’s lack of financial trustworthiness.  Appellant makes no attack on the overall equity of the trial court’s determinations that would put the tax determinations in the proper context.  The trial court did not abuse its discretion in its order. 

            D.        Double-Crediting of Certain Assets

            Appellant claims that the trial court erred in its calculations and/or assignments of certain debts and credits.  As stated earlier, the trial court has broad discretion regarding property division.  The court’s division of assets must be just and equitable, but it need not be mathematically equal.  Nazar v. Nazar, 505 N.W.2d 628, 635 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993).  Absent an abuse of discretion, the trial court’s property division must stand.  Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984).  Our review of the record does not reveal that the trial court abused its discretion in its calculations or determinations. 

            E.        Respondent’s 401(k) and Pension Plan

The statutory definition of “marital property” includes vested public or private pension plan-benefits or rights acquired by the parties during the marriage.  Minn. Stat. § 518.54, subd. 5 (1998).  The division of a pension plan falls within the district court’s discretion.  Hanson v. Hanson, 403 N.W.2d 718, 719 (Minn. App. 1987). (citing DuBois v. DuBois, 335 N.W.2d 503, 505 (Minn. 1983)).  An appellate court will not disturb a trial court’s determination that an interest was derived from nonmarital sources unless it is clearly erroneous.  See Kottke v. Kottke, 353 N.W.2d 633, 636 (Minn. App. 1984), review denied (Minn. Dec. 20, 1984). 

Appellant contends that the trial court erred in granting respondent a nonmarital interest in a pension that was unvested as of the date of marriage.  Although the trial court made no specific findings of fact as to its reasoning in granting the respondent a nonmarital interest, respondent testified that she had been working and accruing the 401(k) benefits since 1987.  The pension vested after five years of work with her company, eight months after parties’ marriage.  On this record, we find no abuse of discretion in the trial court’s division of these assets. 

            F.        The Homestead Interest Awarded to the Minor Child, J.A.H.


            Appellant claims that he is entitled to one-half of the lump sum J.A.H. received from the Social Security Administration as reimbursement for his support of J.A.H. for two years.  The trial court, in paragraph XXI of its findings of fact, made the following determination:

            The homestead was purchased using a downpayment of $9,100.00.  Both parties testified that these monies were received as proceeds from the Social Security Administration and paid to [respondent] for the support of [J.A.H.] as part of a lump sum payment [J.A.H.] received from Social Security for her deceased father.  These monies that were received by [respondent] are [J.A.H.’s] funds. [Appellant] does not have any legal claim to these funds.  [Appellant’s] argument that he is entitled to half of these monies is unfounded as [appellant] was under no legal obligation to support [J.A.H.].  The monies belong to [J.A.H.] and were for her support and as such should be returned to [J.A.H.].  The funds were not commingled with marital funds but kept separate prior to using them for the downpayment.  They were also not funds at either party’s disposal to freely commingle.  The Court finds that [J.A.H.] has an independent interest in the homestead and shall be given a mortgage on the homestead.  Upon the sale of said homestead, the $9,100.00 owed to [J.A.H.] shall be paid to her prior to any other division.  These monies shall be paid to [J.A.H.] prior to division between the parties.


            “[T]he role of the courts in dissolution proceedings is ‘strictly limited to that provided for by statute.’”  Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn. 1999) (quoting Melamed v. Melamed, 286 N.W.2d 716, 717 (Minn. 1979)).  Appellant argues that the trial court’s order with regard to the $9,100 is unsupported by any statute.  In Melamed, the supreme court held that the trial court had authority to order a life-estate interest in a condominium to the former wife but did not have the power to award the children a remainder interest in the property because no statute confered such authority on the court.  286 N.W.2d at 718. 

            In this case, the trial court found that the parties owed $9,100 to J.A.H.  The debt was ordered to be satisfied by proceeds from the immediate sale of the homestead.  Unlike the children in Melamed, J.A.H. was not awarded a future interest in real property to be realized only upon termination of a parent’s life estate.

A trial court’s apportionment of marital debt is treated as a property division and thus reviewed under an abuse-of-discretion standard.  Berenberg v. Berenberg, 474 N.W.2d 843, 848 (Minn. App. 1991), review denied (Minn. Nov. 13, 1991).  The essence of the trial court’s order was effectively to split repayment of the $9,100 between the parties.  The trial court acted within its discretion in its decision.

2.         Determination of Appellant’s Net Income for Child Support


            Child support is awarded based upon a party’s net income.  See Minn. Stat. § 518.551, subd. 5(b) (Supp. 1999).  Appellant challenges the trial court’s determination of his income on several grounds, including the court’s failure to accept the testimony of appellant’s accountant and failure to credit appellant’s claimed business-depreciation expenses.  Appellant acknowledges that his gross income for the period in question was $63,701.  But appellant contends that his net income was only $25,974 and that the difference between the two figures consists of legitimate business expenses. 

            Paragraph XVI of the trial court’s August 19, 1999 findings of fact specifically addresses its determination of appellant’s income:

            The Court did not find the [appellant] credible in his testimony regarding his income and expenses, especially in the context of determining child support.  The [appellant’s] claims regarding his claimed business expenses and which ones were appropriate expenses were simply not credible and the [appellant] did not meet his burden of proof regarding these expenses.


(Emphasis added.)  Assessments of witness credibility are “peculiarly within the province of the factfinder.”  In re Friedenson, 574 N.W.2d 463, 466 (Minn. App. 1998) (quoting Eden Park Apartments v. Weston, 529 N.W.2d 732, 734 (Minn. App. 1995)), review denied (Minn. Apr. 30, 1998). 

Minn. R. Civ. P. 52.01 provides:


Findings of fact * * * shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.


Appellant is a self-employed carpet installer.  Minn. Stat. § 518.551, subd. 5b(f) (Supp. 1999), therefore, guides the trial court in its determination of net income.

            Income from self employment is equal to gross receipts minus ordinary and necessary expenses.  Ordinary and necessary expenses do not include amounts allowed by the Internal Revenue Service for accelerated depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining income for purposes of child support.  The person seeking to deduct an expense, including depreciation, has the burden of proving, if challenged, that the expense is ordinary and necessary.  Net income under this section may be different from taxable income.


Id.  Appellant contends that the trial court should have allowed his claimed business deductions in its net-income determination.  In support of his position, appellant asserts that his accountant’s testimony should have been given greater weight than that of respondent.  But appellant’s accountant testified that he simply worked with the numbers that appellant supplied to him rather than making any independent determination as to the propriety of a claimed deduction. 

Further, a party’s

practice of deducting [business] expenses for tax purposes [does] not preclude the family court from attributing these items to [that party] for purposes of determining the proper level of child support.


Gully v. Gully, 371 N.W.2d 63, 65 (Minn. App. 1985).

The trial court heard the testimony and reviewed the evidence presented and found that appellant’s claims were not credible and that he did not meet his burden of proof.  The trial court’s decision is supported by the record and is well within its discretion. 

3.         Respondent’s Award of Attorney Fees 


            An award of attorney fees under Minn. Stat. § 518.14 (1998) rests within the discretion of the district court and will not be disturbed absent an abuse of discretion.  Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987).  See also Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977) (an award of attorney fees rests almost entirely in the discretion of the trial court).  The trial court awarded respondent her attorney fees and costs, approximately $6,722.10.  The trial court based this award on appellant’s “ability to pay based upon the disparity in the parties’ incomes.”  The court went on to state that “[appellant] makes approximately two and one-third times the net monthly income of [respondent].” 

            Minn. Stat. § 518.14, subd. 1, provides in relevant part:

[T]he court shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding, provided it finds:

            (1) that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

            (2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

            (3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.


Based on the record, the trial court did not abuse its discretion in awarding attorney fees to respondent. 

4.         Appellant’s Reply Brief 


            Respondent has moved to strike appellant’s reply brief, arguing that it contravenes Minn. R. Civ. App. P. 128.02, subd. 3, which requires that a reply brief “be confined to new matter raised in the brief of the respondent.”  We find respondent’s arguments to be without merit. 

5.         Attorney Fees on Appeal 


            Respondent also requests an award of attorney fees on appeal.  “An award of attorney fees on appeal rests within the discretion of this court.”  Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994).  Minn. R. Civ. App. P. 139.06 prescribes the proper procedure for seeking attorney fees on appeal.  Such a request must be in the form of a motion under Minn. R. Civ. App. P. 127 and “must include sufficient documentation to enable the appellate court to determine the appropriate amount of fees.”  Minn. R. Civ. App. P. 139.06, subd. 1.  Respondent did not put her request in the form of a motion or provide “sufficient documentation” for this court to make a proper determination.  Her request for attorney fees is denied. 

            Affirmed; motions denied

*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  While appellant cites various cases to support his argument on this issue, we note that those cases pre-date the current statute and that proper application of that strand of case law produces the same result we reach under the current statute.  Cf. Volesky v. Volesky, 412 N.W.2d 750, 752 (Minn. App. 1987) (stating party shall be accountable for dissipation “unless the assets are justifiably consumed to meet necessary living expenses of the parties”).