This opinion will be unpublished and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

C3-00-899

 

 

In Re the Marriage of:

Gloria Anne Fritz, f/k/a

Gloria Anne Strouth, petitioner,

Respondent,

 

vs.

 

Anthony Rolf Strouth,

Appellant.

 

 

Filed January 30, 2001

Affirmed

Halbrooks, Judge

 

Ramsey County District Court

File No. DMF0921375

 

 

Robert W. Due, Katz & Manka, Ltd., 4150 U.S. Bank Place, 601 2nd Avenue South, Minneapolis, MN 55402; and

 

John R. Jesperson, 1012 Grain Exchange Building, 400 South 4th Street, Minneapolis, MN 55415 (for respondent)

 

Anthony R. Strouth, 1370 Imperial Ridge, West St. Paul, MN 55118 (appellant pro se)

 

 

 

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

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            This appeal arises out of the property division of a short-term marriage in the context of a longer relationship.  Pro se appellant challenges the trial court’s (a) characterization of certain real properties as marital and nonmarital; (b) determination that a termination payment received during the marriage from one of appellant’s clients was marital property; (c) jurisdiction over property acquired during the parties’ premarital cohabitation; and (d) failure to credit appellant for certain payments made from his premarital pension plan.  Because the evidence overwhelmingly supports the decisions made by the trial court, we affirm.

FACTS

Appellant Anthony Rolf Strouth and respondent Gloria Anne Fritz met in December 1986 and, soon after, became involved in each other’s financial dealings.  Both had prior marriages.  The parties were married on September 16, 1990; dissolution was commenced May 19, 1992.  The parties have two children together.  Their custody is not an issue on appeal.  This dispute primarily concerns the trial court’s resolution of three pieces of real property and some related issues.

            The first disputed property is a Summit Avenue mansion and carriage house in St. Paul.  In its dissolution order, the trial court noted that respondent found the property and arranged for its purchase.  The property was purchased in appellant’s name because of financing issues.  Both parties participated in the extensive renovation of the property.  Respondent’s participation involved much of the labor but limited financial support, while appellant’s involvement was largely monetary.  Once renovated, the property produced substantial rental income.  

Appellant contends that a large part of the renovation funds came from a $200,000 termination payment from Homemaker Industries to appellant’s corporation, A.R. Strouth Manufacturers’ Representatives, Inc., making the funds nonmarital in nature.  Appellant worked as a manufacturer’s representative for Homemaker Industries and many other companies.  The trial court found the payment was intermingled with appellant’s marital funds.  The court concluded that the parties contributed roughly equal nonmarital funds and marital contributions to the project and thereby concluded that the Summit property was a joint venture and the sale proceeds should be divided equally between the parties. 

The second disputed property is a house in Eagan.  Respondent owned the house following the dissolution of her first marriage and before she met appellant and used it as collateral for a loan from a personal friend for an amount well below the property’s assessed value.  In December 1988, respondent arranged for appellant to enter into a contract for deed with the friend, but respondent continued making the loan payments.  The court found that this second transaction was done for tax purposes only, and that it was understood between the parties and the friend that respondent continued to “own” the property regardless of the name on the title.  The district court held that the Eagan property should be restored to respondent as her nonmarital property and appellant would be credited in the property division for his contributions.

The third disputed property is a farm in Stillwater.  Respondent bought the farm in 1980 with her first husband and acquired the entire property in her first dissolution.  Appellant claims that respondent sold him the farm in exchange for a body shop he owned in Faribault and in satisfaction of a premarital loan he made to respondent.  The body shop was sold to a third party immediately after its transfer to respondent.  The court concluded that respondent received no benefit from the sale of the body shop, and that the payments to respondent were not loans.  The court held that, without consideration, the sale of the farm was unenforceable, and it remained respondent’s traceable nonmarital property.  Appellant was awarded a credit in the property division for his contributions to the farm during the marriage.

The legal proceedings between the parties have been extended and divisive, involving numerous judges, guardians ad litem, counselors, and lawyers.  Since the dissolution proceedings began in 1992, considerable judicial resources have been spent sorting out every detail of this dissolution.  The district court has held numerous hearings and issued more than a dozen orders.  The court of appeals has been drawn into this matter on four previous occasions.

The parties have been involved in a custody battle since July 1992.  A brief reconciliation ended in June 1993, when appellant commenced domestic abuse proceedings and was granted an order for protection and temporary custody of the parties’ children.  On five occasions between January 1995 and March 1997, appellant was ordered to distribute funds from a profit-sharing account for expenses related to the children.  Among the orders, the court approved a net distribution of $40,673 from appellant’s pension fund to pay for guardian ad litem fees, court-ordered psychological exams, childcare expenses, health insurance premiums for one year, and respondent’s outstanding attorney fees and costs.  The court later ordered a second distribution of $10,000 for respondent’s attorney fees resulting from a continuance granted to appellant.  On other occasions, the court ordered distributions for child support, past due child support, attorney fees, childcare, private school tuition, and numerous other expenses related to the children.  The custody dispute dragged on until March 2000. 

Trial in this matter spanned 13 days.  The trial transcript fills six volumes and 2,015 pages.  Nineteen witnesses testified and 350 exhibits were submitted.  In July 1996, the court filed a 54-page findings of fact, conclusions of law, and order for judgment.  In late 1996, appellant unsuccessfully moved for amended findings or a new trial and a reduction or suspension of child support.  Appellant served a second motion for amended findings or new trial on August 31, 1999, that was denied.  Appellant brought a third motion for amended findings or new trial on April 21, 2000.  That motion was also denied.  This appeal is from an amended decree entered on March 24, 2000, that consolidated all of the findings of fact and conclusions of law from the original order of July 25, 1996; a child support order of July 22, 1999; and a custody order of August 13, 1999.

D E C I S I O N

1.         Timeliness

Respondent argues that this appeal is untimely because appellant failed to appeal within 90 days of the 1996 dissolution decree.  But under Minn. R. Civ. App. P. 104.01, subd. 2(c), an appeal of a family court matter is premature when a custody-related motion is pending.  Moreover, a July 27, 2000 order by this court held that the final custody award in this case was entered on March 24, 2000, and that the custody award completed the district court proceedings and granted this court jurisdiction.  See Minn. R. Civ. App. P. 104.01, subd. 1.  Therefore, respondent’s argument is without merit.    

2.         Jurisdiction

Appellant argues that the district court abused its discretion when it attempted to restore the parties to their financial positions when they met, rather than at the time of marriage.  That argument ignores the intermingled financial dealings of the parties, both before and during the marriage.  In light of the brief duration of this marriage, the trial court had the discretion to look beyond the marriage date and the names on the titles when classifying property.  See Lenzmeier v. Lenzmeier, 304 Minn. 568, 570-71, 231 N.W.2d 71, 74-75 (1975) (recognizing the equity in restoring parties to their separate status before a short marriage); Kendall v. Kendall, 289 Minn. 494, 494-95, 181 N.W.2d 894, 896 (1970) (same).

In a related argument, appellant asserts that, because Minnesota does not recognize common law marriage, awarding property or wages earned during cohabitation is against public policy.  Appellant contends the trial court is without jurisdiction over property acquired during the premarital cohabitation of the parties.  See Minn. Stat. §§ 513.075-.076 (2000).  Minnesota law provides that a man and a woman do not acquire cognizable claims to the earnings or property of the other by living together out of wedlock in contemplation of sexual relations.  Id.  But if respondent put forth consideration independent of “living together in contemplation of sexual relations * * * out of wedlock” or is seeking to “protect [her] own property,” the statutes do not bar the claim.  In re Estate of Palmen, 588 N.W.2d 493, 496 (Minn. 1999) (citations omitted).  Here, respondent’s consideration is the money and labor she invested in the properties in question before and during the marriage.  Appellant’s jurisdictional argument fails. 

3.         Summit Avenue Property

Appellant argues that the trial court erred in finding the Summit Avenue property to be a joint venture.  He contends that the mansion is nonmarital property because he purchased it prior to the marriage.  Furthermore, he contends that because there was no finding of hardship, the trial court cannot award his nonmarital property to respondent.

This court will not set aside findings of fact unless clearly erroneous, with due regard given to the trial court’s opportunity to judge witness credibility.  Minn. R. Civ. P. 52.01.  Here, the trial court mistrusted testimony and depended heavily on the submitted documents.  Findings of fact based on documentary evidence are reviewed under the same clearly erroneous standard.  First Trust Co. v. Union Depot Place Ltd. Partnership, 476 N.W.2d 178, 181-182 (Minn. App. 1991), review denied (Minn. Dec. 13, 1991).  The trial court has broad discretion in dividing property, and we will not overturn the court’s decision unless there was a clear abuse of discretion or an erroneous application of the law.  Ebnet v. Ebnet, 347 N.W.2d 840, 842 (Minn. App. 1984).

The trial court found a joint venture based on the conduct of the parties in conceiving the project, financing the project, and investing their time, energy, and labor in the renovation.  The elements of a joint venture are:         

(1) contribution, i.e., the parties must combine money, property, time, or skill in some common undertaking; (2) joint proprietorship and control, i.e., a proprietary interest and right of mutual control over the subject matter of the property engaged in the venture; (3) sharing of profits by express or implied agreement; and (4) a contract, express or implied, showing that a joint venture was entered into.

 

Powell v. Trans Global Tours, Inc., 594 N.W.2d 252, 256 (Minn. App. 1999).  It is not necessary to have equal financial contributions to create a joint venture.  Construction General, Inc. v. Richard Schwarz/Neil Weber, Inc., 354 N.W.2d 877, 879 (Minn. App. 1984).  Whether a joint enterprise exists is a question of fact.  Grain Dealers Mut. Ins. Co. v. Cady, 318 N.W.2d 247, 250 (Minn. 1982).

Here, the trial court determined that, although appellant contributed more money, respondent contributed virtually all of the labor and supervision of the project.  The record supports this finding. 

The purchase agreement was written by respondent, who is a real estate agent.  The agreement identified appellant as the buyer, due to respondent’s then poor credit rating and limited income.  Respondent found the necessary financing by submitting proposals to 10-12 financial institutions as well as the bank to refinance the loan three years later.  Appellant produced no evidence of paying any money at the closing.  Closing costs were paid from a rebate of property taxes that respondent arranged.

Renovation of the property was extensive, lasting four years.  Respondent, who has developed other properties, collected bids from contractors, located tenants and negotiated leases.  To be more available during the renovation, respondent moved her office into the mansion.  Appellant, on the other hand, continued his work as a manufacturer’s representative and was often out of town.

The parties admitted that both participated in the work associated with the renovation.  Both of their names appear on the rental agreements, with respondent as manager and appellant as owner.  Because the existence of a joint enterprise is a fact question, and the record reasonably supports the trial court’s findings, there is no abuse of discretion.      

4.         Severance Payment  

            Appellant argues that the trial court erred in finding that a severance payment from Homemaker Industries to his corporation that was used to finance the Summit Avenue project was marital property.  The court considered the payment to be taxable income received during the marriage and found that appellant failed to prove that the claimed nonmarital funds could be traced.

Property obtained by either spouse during the marriage is presumed to be marital property.  Minn. Stat. § 518.54, subd. 5 (2000).  A party seeking to overcome that presumption must demonstrate by a preponderance of the evidence that the property is nonmarital.  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997). “Nonmarital property” includes property acquired before marriage.  Minn. Stat. § 518.54, subd. 5(b) (2000).  Absent a finding of hardship, nonmarital property is excluded from the court’s division of marital property.  Minn. Stat. § 518.58, subds. 1, 2 (2000); see Nardini v. Nardini, 414 N.W.2d 184, 190 (Minn. 1987).  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, 562 N.W.2d at 800.

The record supports the trial court’s findings.  Appellant admits that the payment was commingled with his other earnings once it was deposited in his corporate account.  He was unable to provide an exact figure as to how much of that amount was spent specifically on respondent.  Although the commingling of marital and nonmarital funds is not fatal to appellant’s claim, Swick v. Swick, 467 N.W.2d 328, 330-31 (Minn. App. 1991), review denied (Minn. May 16, 1991), his inability to document the amount of the settlement and the amount spent on respondent is problematic.  A reviewing court should reverse a trial court’s findings of fact only if, upon review of all the evidence, the panel is “left with the definite and firm conviction that a mistake has been made.”  Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987) (citation omitted).  We conclude that the trial court did not err.

5.         Eagan Property

 

Appellant next argues that the trial court erred in finding that the Eagan property was respondent’s nonmarital property.  The court found that the transaction between respondent and her friend was merely a loan; that the 1988 “sale” to appellant was for tax purposes only; and, therefore, the property remained respondent’s nonmarital property.  Appellant asserts that the house was his nonmarital property because he purchased it before the marriage by means of a contract for deed. 

But title to property, by itself, does not establish the status as marital or nonmarital.  See, e.g., Nash v. Nash, 388 N.W.2d 777, 781 (Minn. App. 1986) (simply routing the funds through a joint account “does not transform nonmarital property into marital property”) (quotation omitted), review denied (Minn. Aug. 20, 1986); Montgomery v. Montgomery, 358 N.W.2d 169, 172 (Minn. App. 1984) (transferring title from individual ownership to joint tenancy does not necessarily transform nonmarital property into marital property).

The evidence in the record supports the trial court’s findings of fact on this issue.  Both respondent and her friend who loaned the money testified that, regardless of the transactions, it was understood that respondent would remain the owner of the Eagan property.  Appellant acknowledges that even after the title transfer, respondent continued to make the house payments.  Further, both appellant and his first wife signed a quitclaim deed to the property pursuant to their understanding that the property would eventually be restored to respondent. 

We find it difficult to believe respondent would sell the house, even to a friend, for far less than the assessed value or that a non-owner would continue to pay off a debt.  Although this court need not defer to a trial court’s legal conclusions regarding the marital or nonmarital nature of property, we must affirm findings of fact supporting such a conclusion, unless they are clearly erroneous.  Olsen, 562 N.W.2d at 800.  Because there is ample evidence in the record supporting the trial court’s findings, and the findings support the conclusion of law, the trial court did not abuse its discretion.

6.         Stillwater Farm

Next, appellant contends that the trial court erred in awarding the Stillwater farm to respondent because respondent conveyed the farm to him in exchange for transfer of a body shop and repayment of debts respondent owed him.  The court, however, found that the exchange was not legally enforceable due to lack of consideration.  The court concluded that, without a valid and enforceable sale, the Stillwater farm remained respondent’s traceable nonmarital property.

As stated, a trial court enjoys broad discretion regarding the division of property in dissolutions, and reversal is warranted only for clear abuse of discretion.  Reynolds v. Reynolds, 498 N.W.2d 266, 270 (Minn. App. 1993).  The trial court’s exercise of discretion in distributing an asset “should be supported by either clear documentary or testimonial evidence or by comprehensive findings issued by the court.”  Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983).

Here, the trial court found that proceeds from the sale of the body shop were deposited into appellant’s corporate account and in large part paid to appellant’s first wife in satisfaction of the last two installments of her cash property settlement.  The “loans” from appellant to respondent were primarily for living expenses and the “typical niceties of courtship.”  No promissory notes exist for these loans.  Moreover, during the period of the alleged loans, appellant was not paying child support.  Most of the “loans” were for food, clothing, hotels, gifts, childcare, and other joint expenses.  There is nothing in the record, except appellant’s testimony, to support his argument that respondent was to reimburse him for these expenses.  The record on this issue supports the trial court’s findings of fact that underscore its conclusion.  We find no error.   

7.         Expenses paid from premarital pension plan

 

            Finally, appellant argues that the trial court erred in using his nonmarital pension account to pay various expenses without a finding of hardship and that respondent must reimburse him for half of the payments made from this fund.

As appellant correctly notes, the court may distribute nonmarital property only upon a finding of unfair hardship.  See Minn. Stat. § 518.58, subd. 2.  But the challenged orders are not part of the property division.  Instead, they are orders for attorney fees and expenses relating to the parties’ children and, therefore, not subject to the marital property division statutes.  These orders do not require a finding of hardship to invade nonmarital property.  Appellant’s argument fails.       

Affirmed.