This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-1761

 

In Re the Marriage of:

Stanley Ralph Herman, petitioner,

Respondent,

 

vs.

 

Sharon Diane Herman,

Appellant.

 

Filed June 26, 2001

Affirmed;† motions denied

Lansing, Judge

 

Hennepin County District Court

File No. DC241070

 

Sharon D. Haneman f/k/a Sharon D. Herman, 4580 Pine Street, Medina, MN 55359 (pro se appellant)

 

Cynthia D. Stricker, Judy S. Engel, Crystal M. Ovsak, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402-3397 (for respondent)

 

††††††††††† Considered and decided by Lansing, Presiding Judge, Amundson, Judge, and Shumaker, Judge.


U N P U B L I S H E D†† O P I N I O N

LANSING, Judge

††††††††††† On appeal from judgment in a marital dissolution action, Sharon Haneman, f/k/a Sharon Herman, challenges the valuation and distribution of marital property and raises additional issues related to court procedure.† Because the record supports the district courtís factual determinations, and because the court did not abuse its discretion either in the division of property or its procedure, we affirm.† We deny the partiesí procedural motions.

F A C T S

††††††††††† The district court entered judgment dissolving Stanley Hermanís and Sharon Hanemanís 24-year marriage.† At the time of dissolution, Herman was employed as the president of a business corporation receiving an annual salary of $100,000.† Haneman, a certified public accountant, was employed part-time preparing income tax returns, for which she earned between $5,000 and $10,000 a year.† Herman and Haneman have three children, two of whom have now reached majority.

††††††††††† Herman and Haneman separated in 1989 but later reconciled.† They separated again in 1996.† A number of property distribution issues that were litigated in the contested dissolution proceedings and raised in this appeal arise from expenditures and asset transactions during the second separation.

††††††††††† Following the contested dissolution hearing, the district court made findings of fact that adopted a number of Hermanís proposed findings on the valuation and division of the marital assets, provided for the distribution of one of Hermanís retirement accounts to Haneman, included in the marital estate Hermanís townhouse and the mortgage debt, and ruled that Hermanís and Hanemanís use of marital assets during their separation preceding dissolution would be charged as advances against their respective shares of the marital estate.† Both Herman and Haneman made posttrial motions.

††††††††††† The district court corrected clerical errors and made substantive adjustments on the apportionment of Hermanís retirement account.† Haneman appeals from the amended judgment.† Herman moves to strike portions of Hanemanís brief and appendix.

D E C I S I O N

††††††††††† Haneman contends that the district court (1) abused its discretion by adopting, verbatim, aspects of Hermanís proposed property division, (2) improperly included in the marital estate the mortgage on a townhouse Herman bought after the parties separated, (3) violated Minn. Stat. ß 518.58, subd. 1a (2000), by placing the burden on Haneman to show that she did not dissipate assets, (4) clearly erred in finding that Haneman failed to prove that Herman dissipated assets, (5) incorrectly classified marital property as Hermanís nonmarital property, (6) clearly erred in valuing marital assets, (7) abused its discretion in the distribution of marital property, and (8) demonstrated improper bias in favor of Herman.

††††††††††† We address each contention separately but note at the outset that, although the amended judgment was not entered until after Haneman appealed, we will, in the interest of judicial economy, extend judicial review to incorporate the amendments.† See Sheeran v. Sheeran, 481 N.W.2d 578, 579 (Minn. App. 1992).

I.††††††††† Verbatim adoption of certain findings.

Haneman contends that because the amended judgment incorporates findings adopted verbatim from Hermanís proposed findings and conclusions, they must be reversed.† Verbatim adoption of proposed findings is not reversible error, but it raises ďthe question of whether the trial court independently evaluated each partyís testimony and evidence.Ē† Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).† In this case, the courtís use of original findings as well as proposed findings from Herman indicates that the court independently evaluated the testimony and used only those findings it believed accurately reflected the evidence.† Furthermore, the district court specifically stated that it independently considered the partiesí testimony.† We cannot assume the district court erred in making this statement.† Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949).† The findings must instead be evaluated on whether they accurately reflect the evidence.†

We also reject Hanemanís allegations that the findings are based on evidence that is not credible and are defective under Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989), because they are prefaced with statements such as ď[Stanley Herman] claimedĒ or ď[Sharon Haneman] argued.Ē† Dean does not stand for the proposition that the prefatory reference invalidates all of the findings.† When, as here, the findings distinguish between a recitation of the partiesí assertions and the facts as found, they are not defective.† Id.† Finally, we reject the arguments on credibility because we are required to defer to the trial courtís credibility determination;† we cannot determine credibility on appeal.† See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (requiring deference to trial courtís credibility determinations).

II.††††††† Townhouse and mortgage.

††††††††††† Haneman alleges that the mortgage on the townhouse purchased after the partiesí separation should not be part of the marital estate.† Generally, debts are treated as property.† Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986), review denied (Minn. May 29, 1986).† Whether property is marital or nonmarital is a legal question, but appellate courts defer to the underlying findings of fact.† Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).† Property acquired after a marriage and before the valuation date is presumptively marital, but showing the property to be nonmarital rebuts that presumption. †Minn. Stat. ß 518.54, subd. 5 (2000).† Debts reasonably incurred after separation can be treated as marital debts.† Bliss, 493 N.W.2d at 587.†

The mortgage on the townhouse does not fit any category of nonmarital property listed in Minn. Stat. ß 518.54, subd. 5.† Further, Herman stated that he bought the townhouse because he had been living in a small apartment and had to give up his bedroom when the children visited, and also because it was close to the childrenís school.† Lastly, including the townhouse and its mortgage and furnishings in the marital estate increases the net estate.† Hermanís purchase of the townhouse was not unreasonable under Bliss, and the district court did not err in including it in the marital estate.

III.†††††† Burden of proof on dissipated assets.

††††††††††† Partially based on authority predating the current statute, Haneman challenges the district courtís rulings on asset dissipation.† The current statute requires the court to compensate a party if, during or in contemplation of dissolution, the partyís spouse uses assets other than for the necessities of life or in the usual course of business.† Minn. Stat. ß 518.58, subd. 1a (2000).† The burden of proof is on the party alleging the improper use of assets.† Id.

††††††††††† Haneman alleges that the district court incorrectly put the burden on her to show that she used certain stock proceeds for the necessities of life.† She alleged that she spent the funds on a mortgage and an insurance premium.† The record shows that the checks used to pay these expenses were written before Haneman received the stock proceeds.† The check for the insurance premium apparently cleared her account after she received the stock proceeds, but it is unclear when the mortgage check was processed.† While it seems likely that, as Haneman testified, she wrote the insurance check before she received the stock proceeds and mailed it later, we cannot say that, on this record, understating her share of the marital estate by half the value of the insurance premium compels a remand.† See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis error).† Additionally, absent documentary evidence addressing when the mortgage check cleared Hanemanís account, we decline to hold that the district court clearly erred in ruling that she failed to show that she used stock proceeds for that payment. See Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous).

††††††††††† While Haneman alleges she spent tax refunds and proceeds of the marital home on family expenses, the district court found her assertion ďnot credible.Ē† We defer to that determination.† Sefkow, 427 N.W.2d at 210.†

IV.†††††† Hermanís alleged dissipation of assets.

Haneman alleges the district court should have found that Herman ďdissipatedĒ assets.† Haneman has not shown that the district court clearly erred by refusing to find Hermanís spending unreasonable. Herman needed the computer equipment for his job, he reasonably thought his employer would pay for the car he bought, and, because Herman was trying to start a consulting business, we will not second-guess the district courtís acceptance of Hermanís testimony that his housekeeping, bookkeeping, and entertainment expenses were a justifiable part of that effort.†

V.††††††† Alleged nonmarital interests.

††††††††††† Haneman alleges Herman did not trace a nonmarital interest in certain personal property.† Both Hanemanís argument and the record are unclear on the items at issue.† Also, the items apparently have only nominal value.† We decline to hold that the disposition of these items makes the property distribution inequitable.† Cf. Margeson v. Margeson, 376 N.W.2d 269, 273 (Minn. App. 1985) (affirming property division despite district courtís failure to trace alleged nonmarital interest where, ďoverall,Ē division was equitable), review denied (Minn. Dec. 30, 1985).

VI.†††††† Valuation of property.

††††††††††† Haneman challenges asset valuations, alleging she impeached an exhibit on which Herman based his valuation testimony.† Valuations are findings of fact and are affirmed if within the limits of credible estimates made by competent witnesses, even if the valuation ďdoes not coincide exactly with [any] estimate.Ē† Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975).† Property owners are presumptively familiar with, and may testify to, the value of their property.† Lehman v. Hansord Pontiac Co., 246 Minn. 1, 6, 74 N.W.2d 305, 309 (1955), cited in Bury v. Bury, 416 N.W.2d 133, 136 (Minn. App. 1987).† When reviewing findings of fact, we view the record in the light most favorable to the findings.† Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).†

††††††††††† Having thoroughly reviewed the record, we conclude Haneman has failed to show clear error in the valuations of the vehicle and household assets awarded to her or the jewelry awarded to Herman.† See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating appellate court need not discuss evidence in detail for purpose of showing it supports district courtís findings), cited in Vangsness, 607 N.W.2d at 474.†

††††††††††† Haneman alleges that the value of the property awarded to her includes the value of her jewelry twice because the judgment awarded her the jewelry and her personal property (according to an exhibit) but the property valued by the exhibit included the jewelry.† We are unable to ascertain the basis for this argument, and the argument is unsupported by a cite to the record as required by Minn. R. Civ. App. P. 128.03.† Haneman also alleges that the home awarded to her was overvalued by $10,000.† Haneman and Herman each attributes the valuation problems to the otherís actions.† And, we are unable to determine how Haneman calculated the alleged overvaluation.† On this record, we cannot determine that a† misvaluation was made or that a remand is necessary to correct it.† See Ruzic v. Ruzic, 281 N.W.2d 502, 505 (Minn. 1979) (stating division of marital property need only be equitable, not equal).†

VII.†††† Distribution of marital property.

††††††††††† When dividing marital property, a district court has ďbroad discretionĒ and, even though we ďmight have taken a somewhat different approach,Ē a property division should be affirmed ďabsent a showing of clear abuse of that discretion.Ē† Miller v. Miller, 352 N.W.2d 738, 741-42 (Minn. 1984); see also Borchert v. Borchert, 279 Minn. 16, 20, 154 N.W.2d 902, 905-06† (Minn. 1967).†

††††††††††† Haneman challenges the awards to Herman of a majority of the retirement accounts and a $2 million insurance policy on his life.† She alleges that her lower earning capacity shows her greater need for the security provided by these assets and that the security provided by them was part of the marital standard of living.† Hanemanís award of permanent maintenance secured by a $250,000 life insurance policy maintained by Herman allows her security and, possibly, increased maintenance.† Also, the district court stated neither party would be able to maintain the marital standard of living after the dissolution.†

††††††††††† Haneman alleges that the amended judgment fails to address an IRA that the original judgment awarded to her.† The post-trial order states that, to achieve a ďmore proportionateĒ property distribution, Herman would receive half of the IRA.† The order, however, removes the entire IRA from Hanemanís property award and adds it to Hermanís award.† Because the district court explicitly stated that awarding Herman half the IRA would produce the ďmore proportionateĒ property distribution, we will not use the orderís arithmetic to infer that the entire IRA was awarded to Herman.†

VIII.††† Allegations of bias.

††††††††††† Haneman alleges that the district courtís statement that proceeding pro se was not in her best interests and that it was unable to use her proposed findings show that the district court was biased against her.† No judge may sit in any case if that judge is interested in its determination, or if that judge might be excluded for bias from acting as a juror.† See Minn. R. Civ. P. 63.02; Minn. R. Gen. Pract. 106.† The district court did not adopt Hanemanís proposed property values and the division of marital property depends, to a large extent, on its value.† The district courtís refusal to use Hanemanís proposed findings is consistent with its valuation determinations.† Also, the statement that proceeding pro se was not in Hanemanís best interest is not an indication of bias but a demonstration of concern that Haneman be adequately represented.† Haneman has not shown bias.†

IX.             Procedural motions.

Finally, Herman moves to strike portions of Hanemanís reply brief and appendix as beyond the record on appeal and as contrary to the district courtís ruling that documents previously submitted to the court would not be considered unless submitted as a trial exhibit.† We deny Hermanís motion because, except for the portion of one document addressing a retirement account discussed above, the documents at issue are either in the record, an accurate summary of the record, or are not critical to our resolution of the appeal.† We note that a district courtís ruling excluding from the appellate record documents submitted to the district court is inconsistent with the rules.† See Minn. R. Civ. App. P. 110.01 (defining record on appeal as papers filed in district court, exhibits, and transcript.)

We also deny Hanemanís motion to expedite her appeal.† Although this court expedites cases dealing with custody, marital dissolution appeals in which custody is not involved are not expedited.† Haneman has not provided a reason that would support the suspension of our ordinary procedures. †See Minn. App. Spec. R. Pract. 1 (stating appeals may be expedited for good cause).

††††††††††† Affirmed;† motions denied.