This opinion will be unpublished and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:

Barbara J. Luoma, petitioner,





Randy E. Luoma,




Filed November 7, 2000

Affirmed in part, reversed in part, and remanded

Randall, Judge


Hennepin County District Court

File No. DC 246652


James D. Kempf, Five East 98th Street, Bloomington, MN 55420-4968 (for respondent)


Ellen E. Tholen, 525 East Itasca Street, Grand Rapids, MN 55744 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge, Randall, Judge, and Harten, 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 challenges the district court's division of marital property, arguing that the court incorrectly applied Minn. Stat. § 518.58, subd. 1a (1998).  Appellant contends respondent should not have been compensated for certain funds received and spent by appellant before the parties' separation.  Appellant also argues that the court abused its discretion by failing to award him maintenance or to reserve the issue.  Appellant contends that he did not expressly waive the issue, that the court relied on a statement by his former attorney in finding the issue was waived, and that even if he did waive the issue, such waiver should fail for lack of consideration.  We affirm in part, reverse in part, and remand.


            In January 1999 respondent Barbara J. Luoma petitioned for dissolution of her 20-year marriage to appellant Randy E. Luoma.  In a pretrial order filed July 30, 1999, the district court found that the issues for trial included maintenance to appellant and property division.  A later pretrial order filed February 4, 2000, stated that the issues for trial were limited to valuation and property division.

            Following a trial in February 2000, the district court made several findings before dividing the marital property.  The court found that the parties separated in October 1998 and that the valuation date was October 4, 1999.  The court also found that appellant did not spend certain funds acquired before the parties' separation on the necessities of life.  These funds included $11,307.52 appellant received as severance pay in December 1997, $7,748 appellant received as reemployment compensation in 1998, and $30,632.38[1] from appellant's Thrift Savings Plan (TSP) that he closed out in January 1998.  Finally, the court found that appellant's request for maintenance was withdrawn before trial and that appellant did not seek to reserve the issue.  Accordingly, appellant was not awarded spousal maintenance, and the issue was not reserved.


I.                   Property Division

Appellant argues that the district court incorrectly applied Minn. Stat. § 518.58, subd. 1a (1998) when dividing the marital property.  He contends the marital funds that the court found he used outside of the necessities of life were actually received and spent before the parties separated.  He asserts respondent should not be compensated for these marital funds because they fall outside the scope of Minn. Stat. § 518.58, subd. 1a.  Appellant argues that because of this erroneous finding, the court divided the marital property in an unjust and inequitable manner.

Statutory construction is a question of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  Accordingly, this court owes no deference to the district court's conclusion.  County of Lake v. Courtney, 451 N.W.2d 338, 340 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).  Statutes "generally should be construed according to their plain and ordinary meaning."  Nadeau v. Austin Mut. Ins. Co., 350 N.W.2d 368, 373 (Minn. 1984) (citation omitted); see also Minn. Stat. § 645.16 (1998) (stating "[w]hen the words * * * are clear and free from all ambiguity, the letter of the law shall not be disregarded").

While marital property division need not be mathematically equal, division must be equitable.  Swanson v. Swanson, 583 N.W.2d 15, 18 (Minn. App. 1998), review denied (Minn. Oct. 20, 1998).  But,

[i]f the court finds that a party to a marriage, without the consent of the other party, has in contemplation of commencing, or during the pendency of, the current dissolution [or] separation, * * * 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 * * * disposal not occurred.


Minn. Stat. § 518.58, subd. 1a  (emphasis added).  The burden of proof "is on the party claiming that the other party * * * disposed of marital assets."  Id.

We hold that the district court erroneously applied the language of Minn. Stat. § 518.58, subd. 1a by (a) concluding appellant did not spend marital funds on the necessities of life without finding that the funds were spent in contemplation of, or during pendency of, the dissolution or separation and (b) improperly placing the burden of proof on appellant to show the funds were spent on the necessities of life.  Accordingly, the
district court did not distribute the parties' marital property in an equitable manner.

            Contrary to Minn. Stat. § 518.58, subd. 1a, the district court made no finding that appellant spent the severance pay, reemployment compensation, and TSP money in contemplation of dissolution or separation.  Further, the district court did not find that appellant spent these funds during the pendency of dissolution or separation.

            In addition, the district court incorrectly placed the burden of proof on appellant to show that he did not spend the money on the necessities of life.  With regard to the severance pay, the court found that appellant "did not establish that he spent[the] money 'for the necessities of life.'"  The court also stated that appellant "did not carry his burden of proving that [his reemployment compensation] was spent on necessities of life."  Similarly, the court placed the burden on appellant to show he spent his TSP money on the necessities of life.  The court went so far as to incorrectly state that Minn. Stat. § 518.58, subd 1a, "requires the court to compensate [respondent] for her share of this marital property * * * unless [appellant] establishes that he disposed of the money for the necessities of life."  (Emphasis added.)  The placement of the burden of proof on appellant to show whether marital funds were spent on the necessities of life is contrary to the plain meaning of Minn. Stat. § 518.58, subd. 1a.

We reverse and remand this issue for an appropriate division of the parties' marital assets, based on the application of Minn. Stat. § 518.58, subd. 1a.  Correct application includes (a) a determination of whether the income was spent in contemplation of or during dissolution or separation and, (b) if the funds were spent during this time frame, correct placement of the burden of proof on respondent to show appellant's expenditures during this time were not on the necessities of life.

II.                Spousal Maintenance

Appellant asserts that the district court abused its discretion by not awarding or reserving maintenance.  Generally, this court only addresses issues presented to and decided by the district court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding appellate court will generally consider only issues presented to, and considered by, district court).

The district court's February 2000 pretrial order specifically stated that the issues for trial were limited to valuation and property division.  At trial, appellant did not state that he was seeking maintenance.[2]  In addition, the court found that "[appellant] offered no evidence on the maintenance issue and did not seek to reserve maintenance."   Appellant did not object to the court's pretrial order nor did he move to amend the court's findings in its dissolution order.  See Frank v. Illinois Farmers Ins. Co., 336 N.W.2d 307, 311 (Minn. 1983) (holding where court fails to address claim, burden is on party to file motion for amended finding under Minn. R. Civ. P. 52.02).  We conclude that spousal maintenance was not properly raised by appellant and that the district court did not err by not awarding or reserving maintenance.

Affirmed in part, reversed in part, and remanded.


[1] The record indicates appellant received $30,632.88.  The parties do not challenge the finding.

[2] Appellant testified to income and debts acquired during the marriage, but he never testified directly on the issue of maintenance or how much support he was seeking from respondent.