This opinion will be unpublished and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:

Cheryl A. Brown, petitioner,




Michael H. Brown,



Filed September 26, 2000
Affirmed in part and remanded in part
Anderson, Judge


Waseca County District Court

File No. F5-99-43


Suzette E. Johnson, Johnson, Anderson & Zellmer, P.L.L.P, 600 South Second Street, Mankato, MN 56002-0637 (for appellant)


Perry A. Berg, Patton, Hoversten & Berg, P.A., 215 East Elm Avenue, Post Office Box 249, Waseca, MN  56093 (for respondent)


            Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


            On appeal from a dissolution judgment, appellant-father Michael Brown challenges the district court’s ruling that he had not traced premarital property, the award to respondent-mother Cheryl Brown of attorney fees, and the distribution of the parties’ assets and debts.  We affirm in part and remand in part.


            Because of discovery disputes, the district court, before trial, awarded mother attorney fees.  In the January 2000 dissolution judgment, the district court stated that father failed to trace his alleged premarital interests in an account and in the homestead, apportioned the marital assets and debts, awarding father most of the parties’ debt, and awarded mother additional attorney fees.  Neither party made a post-trial motion.  Father appeals.


Absent a motion for a new trial, review of a judgment is limited to whether the evidence supports the findings and whether the findings support the conclusions and the judgment.  Keith v. Keith, 429 N.W.2d 276, 278 (Minn. App. 1988).  Findings of fact will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01. 

A finding is “clearly erroneous” if the reviewing court is “‘left with the definite and firm conviction that a mistake has been made.’”  When determining whether findings are clearly erroneous, the appellate court views the record in the light most favorable to the trial court's findings.  Also, appellate courts defer to trial court credibility determinations. 


Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (citations omitted).  That the record might support findings other than those made by the district court does not show that the [district] court's findings are defective.  Id., at 474 (citing cases). 


            Father challenges the district court’s rulings that he failed to trace a nonmarital interest in an account and in the homestead.  Generally, property acquired during a marriage is presumed to be marital.  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997); see Minn. Stat. § 518.54, subd. 5 (1998) (defining “marital property”).  Deciding whether property actually is marital is a legal question but, when reviewing a district court’s ruling on that question, appellate courts defer to the district court’s underlying findings of fact unless they are clearly erroneous.  Olsen, 562 N.W.2d at 800.  A party asserting a nonmarital interest in property must show the nonmarital interest by a preponderance of the evidence.  Id. at 800. 

            It is undisputed that father bought a home before the parties married and that the proceeds from this home financed the parties’ later land purchase.  At trial, the district court refused to admit certain documents, apparently including the mortgage and the deed for father’s premarital land.  Father, in somewhat confused testimony, then stated that the purchase price of the premarital home was $37,000, that he made a $14,000 down payment on it, and that the mortgage was $23,000.  The judgment (a) acknowledged that the proceeds of father’s premarital property were used to finance the parties’ next home; (b) found that the specific terms of father’s purchase of his premarital property “are unknown”; and (c) found father “failed to trace” his alleged nonmarital interest in the proceeds of the parties’ homestead.  These findings are an implicit determination that father’s testimony regarding the down payment, purchase price, and mortgage on his premarital home were not credible.  We defer to that determination.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating appellate courts defer to district court credibility determinations).

            Father notes he had funds in a retirement account when the parties married.  He later moved those funds to another account.  On appeal, he uses a Schmitz calculation to claim that he is entitled to a nonmarital interest in that account and that, after reducing that interest for amounts he withdrew during the proceedings, he is entitled to a net award of $5,331.97.  See Schmitz v. Schmitz, 309 N.W.2d 748, 749-50 (Minn. 1981) (discussing apportionment of marital and nonmarital interests in same asset).  But, because father did not argue his nonmarital interest on the Schmitz theory in district court, he cannot do so on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating party may not raise new issue on appeal “[n]or may a party obtain review by raising the same general issue litigated below but under a different theory”).  Moreover, the district court apparently awarded father what he alleges was in his retirement account when the marriage occurred. 


During the proceedings, the district court made fee awards to mother.  Father alleges he lacks the ability to pay those awards.  He does not, however, identify the challenged award(s).  Because judgment was entered on the pretrial awards in November 1999 and father’s notice of appeal identifies only the January 2000 judgment as subject to appeal, we infer that he is challenging the $4,000 award in that judgment. 

The January 2000 fee award is based on both need and conduct.  See Minn. Stat. § 518.14, subd. 1 (1998) (stating district court “shall” award attorney fees if recipient needs fees for good-faith assertion of rights and payor has ability to pay fees and district court may award “additional” fees against party who unnecessarily contributes to length and expense of proceeding).  Conduct-based fees may be awarded regardless of the payor’s ability to pay them.  See Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991) (stating conduct-based fee awards may be made “regardless of the relative financial resources of the parties”).  Therefore, alleging an inability to pay is not legally sufficient to challenge an award of conduct-based fees. 

Father also argues that he has already been assessed fees for his failure to produce discovery.  Here, however, the same district court judge awarded fees both before and after the trial.  In awarding the fees after trial, the judge specifically noted that mother’s request for temporary attorney fees had previously been reserved.  Thus, we conclude that district court was aware of the pretrial awards when it made the award after trial and that, while the amount seems large, we cannot say that the award was the result of the district court awarding fees against the father twice for the same conduct.

Because father has a deficit after accounting for his monthly expenses and his support and maintenance obligations and before accounting for his obligations on the debts apportioned to him in the judgment, he lacks the ability to pay attorney fees.  Therefore, to the extent mother’s fee award is need-based, it is not supported by the findings.  The district court, however, did not indicate whether the need and conduct bases for the fee award were alternative bases for the whole award or separate bases for different parts of the award.  We remand the fee award for the district court to address this question and to reduce the award by any portion thereof which is solely need based.


Husband alleges the district court abused its discretion by awarding mother an inequitably large portion of the marital estate.  The district court has broad discretion when dividing property and its division will be affirmed if it has an acceptable basis in fact and principle even if this court may have decided the case differently.  Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986).  Also, the district court’s property division need not be equal, only equitable.  White v. White, 521 N.W.2d 874, 878 (Minn. App. 1994).  Father’s challenge to the property division seems to involve the division of three items.[1]  Because we reject father’s allegation that he traced a non-marital interest in the retirement account, we also reject his assertion that the property division should be adjusted to reflect that interest.  Similarly, because we remand the fee award, we decline to address father’s fee-based challenge to the property division.

Lastly, father challenges the district court’s award to mother of all of the money in an escrow account.  He alleges he should receive $11,102.31.  Father does not explain the reason for his proposed division of the funds and the district court believed that awarding mother all of the funds in the account was required to achieve an equitable property distribution.  Absent an explanation of why a different distribution of the funds is required to achieve an equitable property division, and in light of the district court’s explicit statement that awarding mother those funds was equitable, we decline to alter the distribution of the funds.  See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (stating “assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection” (citations omitted)).


Father also challenged his child support obligation.  We appreciate mother’s candor in admitting that the district court miscalculated father’s obligation and remand the issue.  We decline to address mother’s argument regarding an alleged deficiency, but leave that issue to the district court’s discretion.

We express no opinion on how to decide the remanded issues.  Whether to reopen the record on remand is discretionary with the district court.

Affirmed in part and remanded in part.

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


[1] Mother’s counter-argument uses a balance sheet valuing the parties’ assets as of the day before mother filed her brief.  The reason mother uses this valuation date is unclear.  See Minn. Stat. § 518.58, subd. 1 (stating, generally, assets to be valued as of date of initially scheduled prehearing conference).