This opinion will be unpublished and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:

James J. Burton-Maiser, petitioner,


Bonnie B. Burton-Maiser,


Filed August 1, 2000


Parker, Judge*


Hennepin County District Court

File No. DC230036



Michael H. Daub, 200 Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for respondent); and


Martin L. Swaden, Swaden Law Offices, 7301 Ohms Lane, Suite 550, Edina, MN 55439 (for appellant).


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Parker, Judge.


U N P U B L I S H E D   O P I N I O N




Pursuant to a marital dissolution, appellant Bonnie Burton-Maiser challenges the district court’s valuation and division of a homestead and a commercial building.  Appellant also challenges the district court’s order that she reimburse respondent for temporary maintenance paid to her.  Finally, appellant argues the district court abused discretion in awarding attorney fees to respondent.  We affirm.




I.                   Property Valuation and Division

A district court has broad discretion in the valuation of marital property and an appellate court will not disturb the district court’s valuation of assets unless clearly erroneous.  Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975).  Therefore, as long as the district court’s determination has a “reasonable and acceptable basis in fact and principle, the reviewing court must affirm.”  Bury v. Bury, 416 N.W.2d 133, 136 (Minn. App. 1987).

A.        Homestead

Appellant challenges the district court’s valuation of the homestead at the time of the parties’ marriage.  Prior to the marriage, appellant owned the homestead, subject to a mortgage.  Appellant argues that the fair market value of the homestead should have been set at $118,000.  The district court set the fair market value at $100,000.

A review of the record supports the district court’s valuation.  In May 1995, the parties were married.  A little over a year later, the parties took out a construction loan to renovate the homestead.  On their construction loan application from August 1996, the parties valued their homestead at $100,000.  The district court accepted this $100,000 valuation over appellant’s opinion of $118,000.  The district court’s valuation is not clearly erroneous.

Appellant further argues that the district court erred in its valuation of the parties’ homestead at the time of trial.  At trial, respondent James Burton-Maiser testified that the fair market value of the homestead as of trial was $225,000, given the significant renovation of the home.  Conversely, appellant theorized the fair market value at trial was only $185,000.  An appraiser, initially retained by appellant, valued the homestead at $210,000.  The district court valued the homestead at $225,000, noting the costly improvements to the home.

Appellant asserts that the district court erred in accepting respondent’s valuation over hers or that of the appraiser.  In Minnesota, an owner of property is “‘presumptively acquainted with its value’ * * * and may as a rule testify as to its value without any particular foundation being laid.”  Bury, 416 N.W.2d at 136 (citation omitted).   Therefore, the district court could properly rely on respondent’s valuation, as “interested witnesses are nevertheless qualified to give valuation testimony.”  Id.  Moreover, acceptance of respondent’s valuation goes beyond the mere pro forma designation of respondent as owner of the property.  Respondent had appraisal experience and is a CPA.  Further, the record shows that approximately $200,000 was invested in renovating the homestead.  It was not an abuse of discretion for the district court to accept respondent’s value.

In the alternative, appellant argues the district court should have accepted the appraiser’s value over respondent’s.  “The difference between the witnesses’ valuations is inescapably a credibility issue.”  Id. at 137; see also Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979) (indicating exactitude is not required in valuation of assets in a dissolution proceeding).  The valuation figures for the home were $185,000, $210,000, and $225,000.  The district court found respondent’s valuation of $225,000 the most credible and persuasive among the range of figures and we give substantial weight to the district court’s credibility determination.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating appellate courts defer to district courts’ credibility determinations).  This finding is not clearly erroneous, particularly since the $225,000 figure lies within 10% of the appraiser’s estimate of $210,000.  See Petterson v. Petterson, 366 N.W.2d 685, 687 (Minn. App. 1985) (“valuation determined by the trier of fact should be sustained if it falls within the limits of credible estimates made by competent witnesses”) (citation omitted)).

Appellant also disputes the district court’s computation of the parties’ nonmarital equity in the homestead.  The district court applied an approach outlined in Freking v. Freking, 479 N.W.2d 736 (Minn. App. 1992).  In an area of law committed to the district court’s discretion, we cannot say the district court’s calculations here present an abuse of discretion.  Schmitz v. Schmitz, 309 N.W.2d 748, 750 (Minn. 1981); see also Johns v. Johns, 354 N.W.2d 564, 566 (Minn. App. 1984) (noting district court’s division of marital property need not be mathematically equal; it need only be just and equitable).  No abuse of discretion is evident in the district court’s computation.

B.        Commercial Building

Appellant also contends that the district court erred in valuing the commercial building at $150,000.  Unless clearly erroneous, a district court’s valuation of a business in a dissolution proceeding will not be set aside on appeal.  Bury, 416 N.W.2d at 137.

Appellant’s appraiser valued the building at $240,000, whereas respondent valued the building at $150,000.  The district court found the appraiser’s opinion unpersuasive, and determined the value of the building at $150,000, finding respondent’s valuation to be more credible and reliable. 

The record supports the district court’s findings that in 1987 the building was valued at $90,000, and in 1994 its value was appraised at $116,000.  No improvements were made after the 1994 appraisal.  The district court adopted respondent’s valuation of $150,000 as more correlative to the building’s prior assessments than the appraiser’s figure of $240,000.  This is not clearly erroneous.

In its detailed findings, the district court criticized appellant’s appraiser’s ‘income’ based approach, in that the appraiser applied an unduly low rate of return as acceptable for a risky investment in an old commercial building in Waconia.  The district court also noted the appraiser’s failure to take fully into account the various depreciation factors affecting the value of the commercial building.  The record supports the district court’s scrutiny of the appraiser’s judgments and the conclusion that the valuation was unreasonably high.  This determination does not constitute legal error.  To the contrary, the district court was diligent in the analysis and findings, and we do not substitute our judgment for that of the district court.

Alternatively, appellant argues that the district court should have appointed a “neutral expert” to value the commercial property, citing Pekarek v. Pekarek, 362 N.W.2d 394, 397 (Minn. App. 1985).  In Pekarek, this court remanded with instructions that a neutral expert be appointed because of the complexity of valuing limited partner tax shelter assets.  Id. at 397, 399.  Pekarek, however, is distinguishable from the case at hand, since the valuation here concerns commercial property--not the much less familiar valuation of limited partner tax shelter assets.  As a result, failure to appoint a neutral expert does not constitute error.

In summary, the evidence in the record supports the district court’s comprehensive findings on valuation of the commercial building, and the district court did not err in its determination.  To the contrary, the district court’s detailed findings reveal a clear and competent understanding of the matters.

Appellant argues that the district court erred in determining there was no marital interest in the commercial building.  Although a reviewing court is not bound by a district court’s legal conclusion regarding the marital or nonmarital character of property, it must accept the findings of fact supporting that conclusion, unless clearly erroneous.  See Reynolds v. Reynolds, 498 N.W.2d 266, 270 (Minn. App. 1993) (noting district court enjoys broad discretion regarding division of property in dissolutions, and reversal is warranted only for clear abuse of discretion).

We conclude that the evidence supports the district court’s determination that there was no marital interest in the commercial building.  Prior to the marriage, respondent owned a one-half interest in the building.  The parties acquired the other one-half interest in the building only seven months before they separated.  No marital or nonmarital funds were expended to obtain title to the building as respondent’s father was given a mortgage on the property for his interest in it.  The district court noted that even if the building had included marital equity, the building would have been awarded to respondent, given the factors in Minn. Stat. § 518.58 (1998), including the short length of the marriage, the parties’ good health, and their earning potential as professionals.  The district court did not clearly err in its findings, and did not abuse discretion in awarding the building to respondent.

Appellant alleges that the court’s valuation and division of assets work an unequal result upon her.  “An equitable division of marital property, however, is not necessarily an equal division.”  Reynolds, 498 N.W.2d at 270.  Here, the district court awarded her the parties’ homestead, which has been the object of considerable marital investment.  This award supports the district court’s ordering a greater equalization payment on appellant’s part, given her disproportionate award of marital assets.

II.                Fraud and Repayment of Temporary Spousal Maintenance

Appellant argues that the district court erred in requiring her to reimburse respondent for spousal maintenance she received.  The district court found this spousal maintenance was ordered as a result of appellant’s fraud on the court.  Appellant also claims it was error for the district court to award retroactive relief. 
Minn. Stat. § 518.64 (1998) permits modification of a maintenance order.  Decisions to modify maintenance are discretionary with the district court.  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).  Under Minn. Stat. § 518.64, subd. 2(d)(1), if a district court finds a party perpetrated fraud upon the court, the court may retroactively modify an original order for maintenance.  See Christenson v. Christenson, 490 N.W.2d 447, 449 (Minn. App. 1992) (noting that section 518.64, subdivision 2, permits retroactive modification back to date before motion for modification was pending when court expressly finds fraud upon the court), review granted (Minn. Jan. 15, 1993), and appeal dismissed (Minn. Feb. 16, 1993); Schack v. Schack, 354 N.W.2d 871, 874 (Minn. App. 1984)  (“A showing of fraud * * * in the original proceeding is * * * sufficient grounds for considering the correct amount of spousal maintenance.”).

            The district court ordered retroactive reimbursement after finding appellant perpetrated fraud on the court.  “[F]indings concerning allegations of fraud on the court must be upheld unless clearly erroneous.”  Sanborn v. Sanborn, 503 N.W.2d 499, 502 (Minn. App. 1993), review denied (Minn. Sept. 21, 1993).  In marriage dissolution, fraud consists of:

 (1) an intentional course of material misrepresentation or non-disclosure; (2) having the result of misleading the court and opposing counsel; and (3) making the property settlement unfair.


Id. at 503.

            This record is replete with evidence that appellant engaged in conduct well beyond a mere lack of total candor.  In May 1997, appellant moved for temporary spousal maintenance for a marriage that was only two years old.  Appellant was awarded $1,600 per month.

A week prior to that motion, appellant entered into an employment contract.  She represented this employment to the referee as a temporary, 90-day contract, giving her an income of approximately $1,400 per month.  In fact, appellant’s contract was to be automatically renewed, and she was to work for 24 to 32 hours per week at a rate of $35 per hour, enabling her to make nearly $4,000 per month (roughly equivalent to her previous salary).  She was also provided with office space, staff, and secretarial support, further reducing her costs.  Moreover, she entered into an almost identical employment contract to begin work for another employer in mid-July 1997.  Appellant failed to disclose her true earnings, or the nature of her two employment contracts to the referee.  This evidence supports the district court’s findings that she concealed her true income while she received temporary spousal maintenance.  We hold that the district court did not clearly err in finding fraud on the court.  Thus, requiring appellant to retroactively reimburse respondent for maintenance was not an abuse of discretion.

III.             Attorney Fees

Appellant argues that the district court erred in awarding $7,125 in attorney fees to respondent.  It is axiomatic that the award of attorney fees under Minn. Stat. § 518.14, subd. 1 (1998), will be reversed only for 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) (stating allowance of attorney fees in family court rests in discretion of the court).

Under Minnesota law, the district court may, in its discretion, award attorney fees “against a party who unreasonably contributes to the length or expense of the proceeding.”  Minn. Stat. § 518.14, subd. 1.  The district court determined that appellant’s “invasion of the safety deposit box prolonged this litigation and, in particular, prolonged the length of the trial,” and her “effort to relitigate the issue of temporary maintenance * * * was an unreasonable use of judicial resources and of the parties’ attorneys’ efforts and related fees.”

The record shows that appellant, in violation of a court order, depleted marital funds contained in a safety deposit box.  She neglected to disclose this fact for five months.  The district court found that her surreptitious depletion of these funds contributed to the length of the trial.  The court also held that two settlement conferences (held subsequent to appellant’s depletion, but prior to disclosure) were futile given that appellant had deceived respondent as to assets that she had dissipated.  In addition, even though the district court had already rendered a decision on the issue of appellant’s temporary spousal maintenance, appellant insisted upon relitigating the court’s ruling.  The district court found this a waste of judicial resources.  The evidence supports the district court’s findings that appellant’s conduct unreasonably protracted the length and expense of the proceedings.  Given the wide latitude granted a district court in awarding attorney fees in such circumstances, we find no abuse of discretion.[1]



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

[1] At oral argument, counsel for respondent argued that this court should not apply an abuse of discretion standard of review, because there was no posttrial motion, and further asserted this was addressed in respondent’s brief, citing Mattson v. Rochester Silo, Inc., 397 N.W.2d 909 (Minn. App. 1986), review granted (Minn. Mar. 13, 1987), and order granting review vacated (Minn. Sept. 15, 1987).  Respondent’s brief, however, does not address this issue or the case cited at argument.  Issues not argued in briefs are waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1983).  Also, failure to file a notice of review on this issue limits the issues to those in the notice of appeal.  Nordling v. Northern States Power Co., 465 N.W.2d 81, 87 (Minn. App. 1987), reversed on other grounds, 478 N.W.2d 498 (Minn. Dec. 7, 1991).