This opinion will be unpublished and

may not be cited except as provided by

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






In Re the Marriage of:


Rita Jane Sapp, petitioner,





Robert Ernest Sapp,



Filed May 15, 2001


Kalitowski, Judge


Le Sueur County District Court

File No. F297701


Kenneth R. White, Farrish Johnson Law Office, PLLP, 201 North Broad Street, Suite 107, P.O. Box 550, Mankato, MN 56002-0550 (for respondent)


Ruth Ann Webster, Gislason & Hunter LLP, 2700 South Broadway, P.O. Box 458, New Ulm, MN 56073-0458 (for appellant)



            Considered and decided by Kalitowski, Presiding Judge, Halbrooks, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant Robert Ernest Sapp challenges the district court’s findings of fact and conclusions of law regarding the dissolution of his marriage from respondent Rita Jane Sapp.  He contends the district court:  (1) clearly erred in determining his net monthly income; (2) abused its discretion in ordering a sale of the homestead; and (3) abused its discretion in ordering the parties to share physical custody of their daughter.  We affirm.




            In a marital dissolution action, this court will affirm a district court’s determination of a party’s income if that finding is not clearly erroneous.  See Schreifels v. Schreifels, 450 N.W.2d 372, 373-74 (Minn. App. 1990) (upholding district court’s determination of net income for purposes of spousal maintenance where the determination was not clearly erroneous).  Generally, appellate courts defer to a district court’s determination of the weight and credibility afforded to evidence presented by expert witnesses.  State ex rel. Trimble v. Hedman, 291 Minn. 442, 456, 192 N.W.2d 432, 440 (1971).  Appellant contends that because the district court clearly erred in its determination of his monthly income, his requirement to pay child support, attorney fees, and a property settlement must be reversed or modified.  We disagree.

The district court heard conflicting testimony from two expert witnesses regarding appellant’s yearly income.  Appellant’s expert witness testified that appellant’s average annual cash flow is $11,822.  Alternatively, respondent’s expert witness testified that appellant’s average annual cash flow is $27,797.  Because it is the district court’s role to make credibility determinations when experts disagree, it was not clear error for the court to accept the testimony of respondent’s expert over the testimony of appellant’s expert.  See id. (instructing courts to defer to the district court’s credibility determination of conflicting expert witness opinions).

            Moreover, there is evidence in the record indicating that appellant earned more money than estimated by his expert.  The district court found that appellant has “cash resources available from unreported cash sales of crops/livestock and the deduction of purely personal living expenses for himself/daughter and father.”  This finding is supported by:  (1) evidence presented at trial suggesting that in 1998, appellant earned over $17,000 in unreported income; (2) appellant’s testimony that he occasionally sold livestock and gave the proceeds directly to his father without reporting the income on his tax returns; and (3) evidence that appellant’s reported income from farming in 1998 was $10,011, but in that same year, he spent over $10,000 on expenses for himself, his daughters and his father.  As a result, the district court concluded that

[w]hile these additional cash resources may be difficult to calculate, the Court [was] satisfied that they exist based on the testimony, and exhibits received at trial.


            We conclude the district court did not clearly err in determining that appellant’s income was greater than estimated by his expert.  See Schreifels, 450 N.W.2d at 373-74 (noting that if a finding is within a reasonable range of figures, the finding is not clearly erroneous).  Accordingly, appellant’s obligation to pay respondent attorney fees and child support based on the district court’s finding of income was not an abuse of discretion.  See State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999) (noting that a district court’s findings on net income for purposes of child support will be affirmed on appeal if those findings have a reasonable basis in fact and are not clearly erroneous); Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (stating that an award of attorney fees under Minn. Stat. § 518.14 is within the discretion of the district court), review denied (Minn. Feb. 18, 1999).


The district court has broad discretion with respect to the division of property. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  For this court to conclude the district court abused its discretion, the district court’s findings of fact must be “against logic and the facts on [the] record.”  Id. (citation omitted).  On review, we must uphold the district court’s “division of property if it had an acceptable basis in fact and principle even though this court may have taken a different approach.”  Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984) (citations omitted).

Appellant contends the district court abused its discretion by ordering a sale of the homestead without considering the tax liability he would likely incur in connection with the sale.  We disagree.

[W]here the sale of real estate is required or is likely to occur within a short time after the dissolution, the [district] court should consider the tax consequences therefrom.


Reynolds v. Reynolds, 498 N.W.2d 266, 271 (Minn. App. 1993) (quotation omitted); see also Maurer v. Maurer, 623 N.W.2d 604, 606-07 (Minn. 2001).  But in this case, the sale of real estate was not required, nor was a sale likely to occur shortly after dissolution.  Appellant owes respondent a property settlement in the amount of $162,521.12, but the district court found that appellant could pay that amount in installments.  He was scheduled to pay the first installment in the amount of $56,600.  After appellant refused to pay respondent the first installment, the district court ordered him to “list for sale a sufficient portion of the real estate awarded to him in [the] dissolution proceeding” to pay respondent unpaid attorney fees and her part of the settlement.  The court also informed appellant that he was not precluded from paying respondent without selling any of his property.

Moreover, there is evidence in the record that appellant has the means to pay respondent without selling the homestead.  The district court found that while it was unable

to label [appellant’s] conduct and actions contemptuous per law, * * * it is evident that he can do more and refuses to do more out of a personal belief that again this Court has made a mistake and that only he can rectify the mistake by way of his conduct.  * * * [T]he evidence [does not] support a finding * * * that [appellant] has exhausted all avenues of refinancing or mortgaging the property to make such payments.


And after the district court ordered appellant to sell part of the homestead, appellant deposited $61,000 with the court administrator to stay the judgment, and then posted another $20,000 bond to effect a stay of the existing judgment and decree.  Because appellant has the means to pay respondent without selling all of his real estate, a sale of real estate is not imminent and the district court did not improperly fail to consider the potential tax consequences of the sale of the homestead.


            A district court has broad discretion to provide for the custody of the parties’ children.  Rutten, 347 N.W.2d at 50.  An appellate court will not reverse a custody determination unless the district court “abused its discretion by making findings unsupported by the evidence or by improperly applying the law.”  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985) (citations omitted).  A district court’s findings will be sustained unless they are clearly erroneous.  Id.  Presently, the law “leaves scant if any room for an appellate court to question the [district] court’s balancing of best-interests considerations.”  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000). 

            Appellant contends the district court erred in ignoring the guardian ad litem’s recommendation that the parties’ daughter reside primarily with appellant.  We disagree.  Here, two psychologists conducted a custody evaluation for the district court and recommended that the parties share physical and legal custody of the parties’ daughter.  One of the psychologists stated that

each parent [was] able to provide for the needs and would aid in [the parties’ daughter’s] development and health, both psychological[ly] and emotionally, and we saw no reason to limit either parent from access to the child[.]  * * * [W]e thought it was important that it was in her best interests to have a healthy relationship with both parents.


Because the custody evaluation and testimony of the court’s experts support the district court’s finding that a joint physical and legal custody arrangement is in the best interests of the parties’ daughter, the court did not abuse its discretion by ordering that the parties share physical custody.


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