This opinion will be unpublished and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

C1-00-982

 

In Re the Marriage of:

Leyla Tarlan, petitioner,

Appellant,

 

vs.

 

Alan Sorensen,

Respondent.

 

Filed February 27, 2001

Affirmed
Foley, Judge
*

 

Beltrami County District Court

File No. F998935

 

Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402; and

 

Susan Anderson McKay, McKay Law Office, 305 America Avenue, P.O. Box 1213, Bemidji, MN 56619 (for appellant)

 

Thomas L. D’Albani, Cann, Haskell, D’Albani & Schueppert, P.A., 205 Seventh Street, N.W., Bemidji, MN 56601 (for respondent)

 

Lisa Yenney, 1221 Irvine Avenue N.W., Bemidji, MN 56601 (pro se guardian)

 

 

Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

In this dissolution appeal, appellant Leyla Tarlan challenges the award of sole legal and physical custody of the parties’ children to respondent Alan Sorensen, as well as the valuation of the parties’ real property.  Appellant also alleges that she should not be required to pay interest on the property equalization payment due to respondent. Respondent challenges the district court’s division of personal property.  We affirm. 

FACTS

            The parties married in 1980 and had three children.  In June 1998, appellant sought to dissolve the marriage; the proceedings were acrimonious.  The parties settled some issues but litigated custody and the valuation and division of certain property.  The district court awarded respondent sole legal and physical custody of the children, valued and divided the contested property, and awarded respondent a property equalization payment. After denial of the parties’ post-trial motions, appellant seeks review of the custody award, the valuation of the real property, and the interest payable on the property equalization payment due to respondent.  Respondent challenges the division of personal property.


D E C I S I O N

I.

            Custody awards are based on a child’s “best interests.”  Minn. Stat. § 518.17, subd. 3(a)(3) (1998).  Review of custody awards is limited to “whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law * * * de novo review of the entire record * * * is inappropriate.”  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985) (citations omitted).  Here, appellant alleges the findings are inadequate to support the custody award because they are conclusory.  See Minn. Stat. § 518.17, subd. 1(a) (1998) (requiring “detailed findings on each of the [best-interests] factors” and an explanation of the district court’s conclusions regarding the child’s best interests).[1]

            Review of the order, the record, and appellant’s arguments shows that the district court considered the statutory factors.  See Schultz v. Schultz, 358 N.W.2d 136, 138 (Minn. App. 1984) (district court need not make findings on all best-interests factors and findings are adequate if they show district court considered relevant statutory factors) (citing Rosenfeld v. Rosenfeld, 311 Minn. 76, 249 N.W.2d 168 (1976)).  A review of the record also shows the exceptional degree of animosity between the parties.  Their relationship is violently detrimental to the rearing and well being of their children and made this a most challenging case for the district court.  It is not our place, however, to rebalance the district court’s handling of the custody factors.  See Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000) (“current law leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations”).  Moreover, the district court made its views known and the record shows that no positive result would arise from a remand and continued litigation.  Therefore, we decline to remand on the basis that the findings are conclusory, as argued by appellant.  Cf. Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985) (custody modification not remanded for missing findings where record showed result would not change).

           Appellant alleges that the record does not support a number of the custody-related findings.  Findings of fact are not set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  Under the rules and case law summarized in Vangsness, to successfully challenge a district court’s findings of fact,

the party challenging the findings must show that despite viewing [the] evidence in the light most favorable to the trial court’s findings (and accounting for an appellate court’s deference to a trial court’s credibility determinations and its inability to resolve conflicts in the evidence), the record still requires the definite and firm conviction that a mistake was made.  Only if these conditions are met, that is, only if the findings are “clearly erroneous,” does it become relevant that the record might support findings other than those that the trial court made.

Vangsness, 607 N.W.2d at 474.  Upon reviewing the record in the light most favorable to the findings and after considering appellant’s arguments regarding the findings, we conclude that the record supports the challenged findings.  See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (function of appellate court “does not require us to discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court’s findings,” and “[o]ur duty is performed when we consider all the evidence, as we have done here, and determine that it reasonably supports the findings”).  We briefly address the findings in question.

            The finding that respondent was the children’s primary caretaker while the parties lived together is supported by, among other things, the fact that because respondent spent less time at work, he spent more time at home.  Because the primary caretaker finding is supported, we reject appellant’s assertion that it shows that the district court was biased against her.  Moreover, even if appellant was the primary caretaker, the district court found that other aspects of the best-interests analysis favor respondent and that no other best-interests factor favored appellant.  Thus, we cannot say that altering the primary parent finding would require altering the custody award.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (to prevail on appeal party must show error and that error caused prejudice); see also Minn. R. Civ. P. 61 (requiring harmless error to be ignored).

            Based mostly on the report and testimony of the court-appointed evaluator, appellant challenges the findings that respondent (1) is the more nurturing parent; (2) is likely to continue to have that relationship with the children; and (3) has the greater capacity to give the children love, affection, and guidance.  We decline to use evidence from the court’s expert to rule these findings clearly erroneous; respondent’s expert thoroughly criticized the report and testimony of the court’s expert.  See Alstores Realty, Inc. v. State, 286 Minn. 343, 353, 176 N.W.2d 112, 118 (1970) (appellate courts defer to district court determinations on weight and credibility of evidence presented through experts).

            Based on respondent’s drinking, anger, and depression, appellant challenges the findings that respondent is the more affectionate and nurturing parent and that respondent’s health is good.  After the events raising appellant’s concerns, however, (1) respondent showed a willingness to undergo any necessary treatment; (2) respondent started seeing a psychiatrist and taking anti-depressant medications; and (3) respondent’s psychiatrist stated both that he intends to continue to treat respondent and that he believes respondent has made “good progress.”  In addition, respondent’s chemical dependency evaluator stated that, while respondent’s chemical dependency evaluation was out of date, it did not recommend treatment for respondent, only that he drink moderately.  Viewed in the light most favorable to the findings, this record supports them. 

           Appellant alleges that the district court did not explain its finding that weighing the custody-related disruption in the children’s lives and the benefits of awarding custody to respondent as the primary caretaker balanced in respondent’s favor.  But, because appellant wants no contact with respondent for any reason, awarding appellant physical custody is likely to create more problems than leaving them in the physical custody of a parent willing to consider fostering the children’s relationship with the other parent.  This analysis also addresses appellant’s allegations that awarding her the family home should favor awarding her custody, as well as the allegation that the finding that respondent bought a new home in the local community ignores respondent’s stated intent to attend school in North Dakota.[2]

           Appellant alleges that the district court ignored respondent’s attempts to alienate the children from appellant.  Respondent denied this allegation.  He is in therapy, has taken parenting classes, and believes the children should spend time with appellant.  Appellant also challenges the lack of a finding that this case involved domestic abuse.  Even if abuse previously occurred, respondent has progressed in his therapy and is on medication. Respondent’s participation and success in therapy suggests he is willing to change his habits, making it unnecessary to alter the custody award.  See Uhl v. Uhl, 413 N.W.2d 213, 217 (Minn. App. 1987) (affirming award of custody to parent who abused child, noting abuse was not “egregious,” was non-repetitive, abuser was under stress and from different culture, and was open and amendable to therapy, willing to undergo additional therapy, and willing to change her habits).

            The district court found that neither party is currently likely to foster the children’s relationship with the other parent, but that respondent is more likely than appellant to overcome the acrimony in these proceedings and foster a relationship with the other parent in the future than is appellant.  The record supports this finding.  Appellant testified that she did not want any contact with respondent at any point for any reason and that respondent’s contributions to raising the children were minimal.  Respondent, however, stated he would try to foster the relationship between appellant and the children.

II.

           Consistent with the evidence of respondent’s appraiser for a market value approach to valuing the parties’ home and garage, the district court valued the home and garage at $318,000.  Appellant alleges the appraiser ignored defects in the house.  Asset valuations are findings of fact and are affirmed if within the limits of credible estimates made by competent witnesses, “even if it does not coincide exactly with the estimate of any one of them.”  Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975) (citation omitted). The valuation satisfies Hertz; it is the value suggested by respondent’s appraiser.

            While appellant introduced photos showing physical defects in the home, the appraiser testified that (1) the settling of unstable land often causes defects in a home; (2) minor settlements are accepted in the market place but severe defects would require an adjustment; (3) the market where the house is located “doesn’t have a great deal of seller concessions”; (4) he went into the home and garage and inspected the outside of the home and premises; (5) he allowed $34,772 in physical depreciation and $14,000 in functional depreciation in his unused replacement cost valuation; and (6) when he spoke with appellant about the home, she did not point out any major problems. Appellant, however, testified that the appraiser did not ask her about problems with the house.  While we may have valued the house differently, we defer to the district court’s statement that respondent’s valuation evidence was “more credible” than appellant’s.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

III.

            We reject appellant’s claim that the interest rate she is required to pay on respondent’s share of the home is in error because it exceeds the judgment interest rate.  The district court has discretion to set the interest rate on a dissolution judgment.  Cf. Johnson v. Johnson, 250 Minn. 282, 292, 84 N.W.2d 249, 256 (1957) (trial court is “vested with a broad discretion” in fixing interest rates).

IV.

           Respondent challenges the division of marital property, alleging the parties and the district court agreed the property should be equally divided but that the district court could not do so without ordering a sale of all property and division of the proceeds.  The trial court has broad discretion when dividing property and will be affirmed if the division “has an acceptable basis in fact and principle even though [the appellate court] might have made a different disposition of the problem.”  Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986) (quotation omitted).  Because respondent cites no authority requiring a sale of property and makes no argument on the point, the argument is waived.  Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971).  Moreover, if properly valued, the difference between an in-kind property division and a division of its sale proceeds is only the form of the award.  Cf. Hanson v. Hanson, 379 N.W.2d 230, 232 (Minn. App. 1985) (property division “implemented” but not “modified” by order converting party’s in-kind property award to cash award).  And here, respondent admits “[t]he valuations provided to the court  * * *  are not really in dispute.”  Thus, we ignore any error in not ordering sale of the property as harmless.  Minn. R. Civ. P. 61.

            Regarding the division of personal property, the district court, without valuing any individual asset, awarded each party certain property and awarded respondent a $15,820 property equalization payment.  Respondent alleges he is entitled to a property equalization payment of $35,820.  The district court erred in failing to provide findings adequate to allow appellate review of the asset division.  We note, however, that a property division need only be equitable, not equal.  Swanson v. Swanson, 583 N.W.2d 15, 18 (Minn. App. 1998), review denied (Minn. Oct. 20, 1998).  We affirm the valuation of the house. Therefore, if respondent is correct in valuing the parties’ non-homestead assets at approximately $100,000, respondent’s alleged $20,000 error in the property equalization payment is an “error” of less than five percent of the total marital estate. On this record, an error of that magnitude does not require a remand.  SeeWibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis error); Minn. R. Civ. P. 61 (harmless error to be ignored).

            Affirmed.

 



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

[1] To support her argument, appellant cites an unpublished opinion.  Unpublished opinions are of limited value in deciding an appeal.  See Minn. Stat. § 480A.08, subd. 3(c) (1998) (“[u]npublished opinions of the court of appeals are not precedential”) (emphasis added); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993) (stating dangers of mis-citation and unfairness associated with use of unpublished opinions and that while persuasive, “[t]he legislature has unequivocally provided that unpublished opinions are not precedential”).

[2] Appellant also alleges that, in denying her request for a new trial, the district court failed to consider the detrimental effect on the stability of the children’s lives caused by respondent’s post-judgment removal of the children from daycare.  The letter respondent sent to the daycare provider stated (1) because he was unemployed, the children did not need daycare; (2) if the daycare provider was willing, she could give respondent’s phone number to the parents of his children’s friends so that the children could maintain contact with their friends; and (3) respondent expected the children to be able to see some of their friends on weekends when the children visited appellant.  Such circumstances do not indicate that the district court abused its discretion by denying appellant’s request for a new trial.  See Schweich v. Ziegler, Inc., 463 N.W.2d 722, 732 (Minn. 1990) (“[n]ewly discovered evidence does not warrant a new trial unless the evidence is of the quality and caliber that would likely produce a different result at trial”) (citing Vikse v. Flaby, 316 N.W.2d 276, 284 (Minn. 1982)).