This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-564

 

 

In Re the Marriage of:

Anthony John Windebank, petitioner,

Respondent,

 

vs.

 

Sharon Annette Windebank, a/k/a

Sharon Annette Chiappa,

Appellant.

 

 

Filed December 26, 2000

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge

 

Olmsted County District Court

File No. C9973185

 

 

Jill I. Frieders, O’Brien Ehrick Wolf Deaner & Maus, L.L.P., 206 South Broadway, Suite 611, PO Box 968, Rocheser, MN 55903-0968 (for respondent)

 

Lawrence Downing, Lawrence Downing & Associates, 330 Norwest Center, 21 First Avenue SW, Rochester, MN 55902 (for appellant)

 

 

 

            Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Sharon Windebank challenges the trial court’s amended dissolution judgment, arguing:  (a) the trial court’s findings support the original award of permanent maintenance; (b) the trial court erred in awarding respondent Anthony Windebank arrearage credits; (c) the trial court erred in setting a valuation date of the respondent’s pension and in allowing him to dissipate assets; (d) the trial court abused its discretion in the property division; and (e) the trial court should have awarded her more in attorney fees.  Respondent also filed a notice of review challenging the trial court’s order requiring him to maintain life insurance in excess of his support obligations to secure his support obligations.  Given that the findings support the trial court’s original order of permanent maintenance rather than the temporary maintenance awarded in the amended order, we reverse on the issue of maintenance and reinstate the original award of permanent maintenance.  Because the trial court erred in awarding life insurance in an amount greater than necessary to secure the support award, we reverse and remand on that issue.  The remainder of the order is affirmed. 

FACTS

Appellant and respondent were married in August 1973, in Oxford, England, and began dissolution proceedings in June 1997.  The parties have four children, two of whom were minors at the time of dissolution.  The child support and visitation determinations are not challenged in this appeal.  During the marriage, the couple enjoyed an upper-middle-class lifestyle, including a lake home, private schools for the children, and other luxuries.      

Respondent is the dean of the Mayo Medical School.  His net monthly income is approximately $9,083.  The trial court estimated his expenses at $5,000 per month.  Appellant, who has a Ph.D. in anatomy, was out of the workforce for 14 years while she concentrated on raising the children and is currently working full-time as a professional research associate with a net monthly income of $3,293.  The court estimated her reasonable monthly living expenses with two children at $7,000 with a reduction to $5,000 when the children leave home.

Following a trial, the court issued an order on July 26, 1999.  Respondent filed a motion to amend.  On January 31, 2000, the court amended the order.  The amended order made very few changes to the findings of fact but significant changes to the conclusions of law.  The trial court’s original order found that appellant was entitled to permanent spousal maintenance of $2,000 per month.  The court based this conclusion on the significant disparity of the parties’ incomes, the now-limited opportunities for appellant to increase her income, and the career sacrifices appellant made to raise the parties’ children and to support respondent’s career. 

Respondent moved for a new trial or, in the alternative, amended findings of fact, conclusions of law, and order.  Respondent’s motions included a specific request that paragraphs 26 and 27 in the original order (outlining facts supporting the permanent maintenance award) be deleted.  In response, the trial court denied the request, stating that the specific findings of fact were justified.  Nevertheless, in its amended order, without changing the findings that supported a permanent maintenance award, the trial court changed the maintenance award to make it temporary (60 months) and reduced the monthly payments to $1,500.  The trial court ordered respondent to maintain $880,000 of life insurance naming appellant and the minor children as beneficiaries to ensure his child support and spousal maintenance obligations.  The required amount of coverage was ordered to be reduced by $100,000 annual increments, beginning on January 1, 2000.  Based upon differences between the final and temporary orders, respondent was granted a credit of $4,459.64 for overpayment of his support obligations.

As part of the property division, the trial court awarded appellant 60% of respondent’s Mayo Clinic pension plan and set a valuation date of July 16, 1998.  The trial court also found that respondent’s use of approximately $35,000 during the dissolution period was not a dissipation of marital assets.     

Two of the parties’ collections are in dispute.  Before the parties were married, respondent purchased eight Russian icons with funds provided by his parents.  Appellant helped retrieve and transport the icons from Germany and repay respondent’s parents.  The trial court found that respondent gave appellant one icon to repay her for her assistance and awarded the remaining seven to respondent.  During the marriage, the parties received four Japanese wood block prints as gifts.  The court awarded three of the prints to respondent and one to appellant.

Finally, the trial court awarded appellant $5,000 in attorney fees.  This appeal follows.

D E C I S I O N

1.         Spousal Maintenance

 

Appellant argues that the trial court erred in amending the order to award her only reduced temporary maintenance while specifically denying respondent’s motion to delete the original findings which support an award of permanent maintenance.  Appellant asks this court to affirm the trial court’s findings so that she is eligible for permanent maintenance, and reverse the amended conclusion of temporary maintenance.  Conversely, respondent contends that the trial court’s findings of fact were clearly erroneous and requests a remand to amend the findings to comply with the legal conclusion of temporary maintenance. 

We review a trial court’s determination of a maintenance award against a standard of wide discretion.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  This court will not find an abuse of discretion absent “a clearly erroneous conclusion that is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  Here, the findings of fact and the conclusions of law are in direct conflict, creating an illogical result which this court must correct.

We uphold the trial court’s findings of fact because they are supported by the record and are not clearly erroneous.  See Minn. R. Civ. P. 52.01.  Testimony and documentation submitted by the parties confirm that their incomes and expenses are in accordance with the trial court’s findings, as is the high standard of living the parties established during their marriage.  Appellant, although well-educated and re-employed in her field, was out of the workforce for many years and, as the trial court found, she will never regain “employment or wage status comparable to” her husband.  Here, appellant does not earn enough to cover her and the children’s reasonable expenses as determined by the trial court.  Reasonable expenses, used to calculate need, are based on the parties’ standard of living during the marriage, not a lesser standard that may be the inevitable consequence of the dissolution.  Minn. Stat. § 518.552, subd. 2(c) (2000); see also Flynn v. Flynn, 402 N.W.2d 111, 115 (Minn. App. 1987).  Further, respondent has the resources necessary to pay spousal maintenance.  

Generally, an award of temporary maintenance contemplates that the recipient will retrain to become self-supporting.  Sand v. Sand, 379 N.W.2d 119, 124 (Minn. App. 1985), review denied (Minn. Jan. 31, 1986); see Minn. Stat. § 518.552, subd. 1(a) (2000).  Alternatively, an award of permanent maintenance typically results from the dissolution of a

long-term traditional marriage in which there is an older, dependent spouse who has little likelihood of achieving self-sufficiency because of an absence from the labor market for a long period of time.

 

Gales v. Gales, 553 N.W.2d 416, 421 (Minn. 1996) (citations omitted).  In the questionable case, the statute directs that the trial court order permanent maintenance, leaving the order open for later modification.  Minn. Stat. § 518.552, subd. 3 (2000); Nardini v. Nardini, 414 N.W.2d 184, 196 (Minn. 1987) (explaining that “doubts with respect to duration [of maintenance] are to be resolved in favor of permanency”).

The facts found by the trial court present the situation envisioned by the legislature for permanent maintenance.  The parties had a long-term marriage, with one spouse out of the workforce for a considerable period of time.  In addition, even with her considerable earnings, it is unlikely appellant will be able to earn the income necessary to support the standard of living established during the marriage.  We also find it significant that the trial court denied respondent’s request to delete the factual findings in paragraphs 26 and 27 of the original order.  Because appellant’s income does not cover her reasonable needs, respondent has ample resources to provide the difference, and the findings support an award of permanent maintenance, the trial court erred in amending the conclusions of law to award only temporary maintenance.  Therefore, we order a reinstatement of the original award of permanent maintenance of $2,000 per month effective the first day of the first month after this opinion is released. 

2.         Arrearage Credits   

 

The trial court found that respondent overpaid his spousal maintenance and child support obligations by $4,459.64, while making payments based on the temporary order from January 1, 1998, through February 23, 1999.  The court ordered credit against future spousal maintenance payments in the amount of respondent’s overpayments.

Appellant argues that no findings of fact justify the credit.  Contrary to appellant’s assertions, the amended order does make findings supporting the overpayment calculations.  The trial court granted respondent credit for mortgage and car insurance payments assigned to appellant in the temporary order but paid by respondent.  Because we find no clear error, we affirm respondent’s award of maintenance credit.

3.         Property Division Issues

A.        Division of the collections

Appellant argues that the trial court erred in awarding respondent seven of the Russian icons and three of the four Japanese block prints.  She asserts that there is no basis for the unequal division of the items.  But there is no requirement that property be divided equally, only that the distribution be equitable.  Stassen v. Stassen, 351 N.W.2d 20, 23 (Minn. App. 1984).  Furthermore, the trial court has broad discretion regarding the division of property in marriage dissolutions and will be reversed only for a clear abuse of discretion.  Hein v. Hein, 366 N.W.2d 646, 649 (Minn. App. 1985).  This court will not disturb a trial court’s distribution of property as long as it has a reasonable basis in fact and principle.  Kreidler v. Kreidler, 348 N.W.2d 780, 782-83 (Minn. App. 1984).

The trial court found that respondent purchased the icons before the marriage.  Therefore, they are nonmartial property.  See Minn. Stat. § 518.54, subd. 5(b) (2000).  The trial court also found that respondent gave appellant one of the icons in return for her assistance in acquiring them.  The trial court, in its discretion, divided the block prints unequally.  Whether property is marital or nonmarital is a question of law, but this court must defer to the trial court’s underlying findings of fact.  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).  “Nonmarital property” includes all property acquired before marriage.  Minn. Stat. § 518.54, subd. 5(b).  We find no abuse of discretion or compelling reason to disturb the trial court’s determination regarding the distribution of either of the collections.   

B.        Valuation date of respondent’s pension 

 

            Appellant challenges the valuation date of respondent’s pension arguing that she did not agree to the date of July 16, 1998, and that it divests her of any appreciation on the pension after July 31, 1998.  In its original order, the trial court set a valuation date of May 31, 1998, for respondent’s pension, 64% of which was awarded to appellant.  In the amended order, the court changed the valuation date to July 16, 1998, the date of the prehearing settlement conference.  By statute, without a specific finding that another date is equitable, the valuation date shall be the date of the originally scheduled prehearing settlement conference.  Minn. Stat. § 518.58, subd. 1 (2000).  In addition, the qualified domestic relations order contained within the amended order specified that appellant’s share of the pension would continue to appreciate until the settlement date.  Based on the discretion granted the court within the statute and the amended order, there was no error.   

C.        Dissipation of assets

Appellant alleges that respondent unilaterally dissipated $25,648 from a marital bank account after the valuation date and without agreement from appellant.  Appellant argues that this “inequity” must be corrected on appeal.

If a party in a dissolution dissipates marital assets, “that party shall be accountable for that dissipation unless the assets are justifiably consumed to meet necessary living expenses of the parties.”  Volesky v. Volesky, 412 N.W.2d 750, 752 (Minn. App. 1987) (no order to replenish marital funds when the money was used for the parties’ son’s school expenses as agreed to by parties); see Minn. Stat. § 518.58, subd. 1a (2000).  In its findings, the trial court found respondent withdrew the money to pay for an adult child’s college expenses and joint marital debts.  Because the findings are supported by the record, we agree with the trial court that respondent did not “conceal, squander or misuse marital assets,” and there is no dissipation.  Volesky, 412 N.W.2d at 753.

4.         Life Insurance as Security for his Support Obligations   

 

Respondent’s employer provides him with “life insurance at three times [his] salary,” but the trial court required him to carry insurance in an initial amount of $880,000.  Respondent argues that requiring him to carry life insurance greater than his total support obligation is an abuse of discretion.

Requiring life insurance on the obligor’s life is justified when it would afford the receiving spouse “a measure of security for loss of maintenance in the event her husband should predecease her.”  O’Brien v. O'Brien, 343 N.W.2d, 850, 853 (Minn. 1984).  The trial court has discretion to determine “whether the circumstances justifying an award of maintenance also justify securing it with life insurance.”  Laumann v. Laumann, 400 N.W.2d 355, 360 (Minn. App. 1987); see Minn. Stat. § 518.24 (2000).

Because the trial court’s findings support permanent maintenance and this court reinstated it, we do not find error in requiring life insurance as security for respondent’s support obligations.  We do, however, find the amount excessive and, therefore, remand to the trial court with instructions to reduce the amount of life insurance required to be held by respondent to the level provided by his employer.   

5.         Attorney Fees

 

            Appellant argues that the trial court erred in awarding a limited amount of attorney fees.  The trial court’s discretion in awarding attorney fees is so broad that a reviewing court rarely will reverse the trial court’s determination.  Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999); Reinke v. Reinke, 464 N.W.2d 513, 516 (Minn. App. 1990).  The statute does not mandate the court to award all of a party’s fees, only an amount “necessary to enable a party to carry on or contest the proceedings.”  Minn. Stat. § 518.14, subd. 1 (2000).  The trial court held that appellant had incurred necessary fees in good faith, that respondent had the ability to pay, and ordered respondent to pay $5,000 of appellant’s attorney fees.  After carefully reviewing the record, which shows that appellant has a gross annual income of more than $50,000 and substantial marital assets, we conclude that, based on the totality of the record, the trial court did not abuse its discretion in limiting appellant’s need-based attorney fees.  Reinke, 464 N.W.2d at 516 (no abuse of discretion where financial situations of the parties, after the property award, allowed each to pay their own fees).    

Affirmed in part, reversed in part, and remanded.