This opinion will be unpublished and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

C5-00-1973

 

In Re the Marriage of:

Kathleen Lopez Buric, petitioner,

Appellant,

 

vs.

 

Thomas James Buric,

Respondent.

 

Filed June 19, 2001

Affirmed

Randall, Judge

 

Stearns County District Court

File No. F0-98-3021

 

 

Robin L. Dietz-Mayfield, Baker Court, 821 Raymond Avenue, Suite 305, St. Paul, MN 55114 (for appellant)

 

Carol M. Klaphake, Hall & Byers, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for respondent)

 

            Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Foley, Judge.*


U N P U B L I S H E D   O P I N I O N

R.A. RANDALL, Judge

            In this dissolution matter, appellant-mother challenges the district court's (a) decision not to recognize that Maryland has continuing-exclusive jurisdiction over the issue of child support; (b) award of joint-legal custody; (c) denial of her request for permanent-spousal maintenance; (d) determination that two loans should be characterized as marital debt; and (e) award of attorney fees.  Respondent alleges the district court erred by (a) excluding evidence that prejudiced his ability to trace stock; (b) mischaracterizing premarital and nonmarital assets; and (c) not considering marital debt assumed by respondent in the property division.  We affirm.

FACTS

            Appellant Kathleen Lopez Buric and respondent Thomas James Buric were married on April 19, 1986.  They have four minor children who live with appellant.  There is an alleged history of respondent abusing appellant in the marriage.  During the marriage, they resided in Maryland where appellant was primarily a homemaker. 

            Appellant and the children moved to Stearns County, Minnesota in October 1997, after an abusive incident, to live with her relatives.  Appellant filed for dissolution of marriage on June 22, 1998.  Because appellant applied for financial assistance from Stearns County, the county contacted the district court in Maryland where respondent lived.  A Maryland court issued a child-support order on July 2, 1999, for $1,053 per month, which was collected from respondent through Stearns County Social Services.

            Respondent works as a mechanic in Maryland.  Respondent testified that he sold drugs and used the drug money to help cover living expenses during the their marriage.  The parties owned various nonmarital and marital assets, such as stocks, a 401(k) account, three vehicles, and real property.  They also incurred various debts during their marriage, including two loans valued at a total of $75,260 given to them by respondent's parents on January 12 and 31, 1987.  No papers were ever signed for these loans nor was money ever collected towards them.

            Following a trial on August 6, 1999, the district court's judgment was entered on October 26, 1999.  Both parties moved to amend the findings, conclusions, and judgment or, in the alternative, for a new trial.  Appellant's motion, however, was withdrawn because it was untimely.  The findings were amended twice in December 1999.  A final order regarding visitation was entered on October 3, 2000, making the judgment and decree final.  This appeal follows. 

D E C I S I O N

I.                   Maryland Child-Support Order

            Appellant contends that the Maryland child-support order issued on July 2, 1999, requiring respondent to pay $1,053 per monthfor the four children, controls over the district court's order requiring respondent to pay $755.43.  She asserts that the district court is required to recognize Maryland as having continuing, exclusive jurisdiction over this matter under the Uniform Interstate Family Support Act (UIFSA), Minn. Stat. § 518C (2000), and 28 U.S.C. § 1738B (2000) (addressing requirement that states give full faith and credit for child support orders of other states).

            "Subject matter jurisdiction and the interpretation of statutes raise questions of law, which we review de novo."  Kasdan v. Berney, 587 N.W.2d 319, 321 (Minn. App. 1999) (citations omitted).  "[I]t is blackletter law that subject matter jurisdiction may not be waived."  Marzitelli v. City of Little Canada, 582 N.W.2d 904, 907 (Minn. 1998) (citations omitted). 

Maryland and Minnesota have enacted statutes, which constitute a substantial adoption of the major provisions of UIFSA.  See Unif. Interstate Family Support Act (1996), 9, pt. IB U.L.A. 235, 247 (1999) (citing Md. Code Ann., Family Law §§ 10-301 to -359, and Minn. Stat. §§ 518C.101 - .902).   The purpose of UIFSA is to unify state laws as they relate to establishment, enforcement, and modification of child-support orders.  Minn. Stat. § 518C.901 (2000).

We conclude that the Minnesota district court had jurisdiction to determine child support.  First, Stearns County initiated the Maryland order in June 1999 only because appellant sought assistance from Stearns County.  A month later, appellant went to trial and neither raised the issue of a Maryland order nor filed any papers from Maryland.  There is no indication in the record that appellant raised, much less argued, that the Maryland order was controlling.  Appellant's petition for dissolution stated that the Stearns County District Court had jurisdiction over the parties' four children, and the petition expressly asked the district court to determine child support.  The petition did not mention the Maryland order.  Counsel for appellant did not file the Maryland order with the district court and never brought the Maryland order to the district court's attention in camera, or for that matter at any time during the dissolution proceedings.  Appellant's counsel did mention in his September 1999 posttrial memorandum that there was a Maryland child-support order for $1,053 per monthand "encouraged" the court to incorporate the figure into its judgment and degree.  Appellant noted that under Minnesota guidelines, child support would be $67 less than Maryland's order. 

The Maryland order is not part of the district court record.  Neither the Maryland order nor any reference to UIFSA is mentioned in any of appellant's pretrial district court documents.  Appellant's counsel's reference to the Maryland order in the posttrial memorandum appears as nothing more than a comparable reference to the Minnesota guidelines. 

As noted, the question of subject-matter jurisdiction cannot be waived.  Marzitelli, 582 N.W.2d at 907.  Here, we have not recited the procedural history of this case to show waiver.  We have done so to show that the district court never had the issue of subject-matter jurisdiction properly before it, never ruled on the question, and that the record before this court lacks a copy of the Maryland order upon which appellant's jurisdictional argument is apparently based.  While the appendix to appellant's brief allegedly includes a copy of the Maryland order, that copy of the order is not properly before this court.  See Minn. R. Civ. App. P. 110.01 (defining record on appeal as papers filed in district court); Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (stating appellate court may not base decision on matters outside the record on appeal or consider matters not produced and received in evidence below); Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (stating "[a]n appellate court cannot base decision on matters outside record on appeal and any matters not part of record must be stricken" (emphasis added)). 

Moreover, even if we were to consider the uncertified copy of the Maryland order in appellant’s appendix, the order itself is unclear about whether it establishes only a temporary support obligation.  Cf. Minn. Stat. § 518C.205 (e) (2000) (stating temporary support orders issued ex parte or pending resolution of jurisdictional conflict do not create continuing, exclusive jurisdiction in issuing court).  Thus, absent a district court ruling to review, a viable copy of the Maryland order upon which appellant bases her argument, or a clear understanding of what the Maryland order actually did, appellant has failed to show that the district court lacked subject matter jurisdiction to address the child support, and this court is precluded from addressing the jurisdictional issue.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (noting, to prevail on appeal, appellant must show, among other things, that district court erred).

II.                Joint-Legal Custody

            Appellant argues that even though the parties stipulated to joint-legal custody, it is not in the children's best interest.  She asserts that the district court erred by not making any findings of fact on the issue and failed to make an independent determination as to whether joint-legal custody was in the children's best interest, especially in light of the fact that appellant claims she experienced domestic abuse by respondent during their marriage.  Appellant asks this court to award her full-legal custody of the four children.

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."  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) (citations omitted).  Regarding the validity of a custody stipulation, the supreme court has stated:

Although considerable weight is given to stipulations intelligently entered with the benefit of counsel, * * * in determining questions of custody the paramount issue remains the welfare and best interests of the children.  The court must in every case exercise an independent judgment and is not bound by the stipulation.

 

 Petersen v. Petersen, 296 Minn. 147, 148, 206 N.W.2d 658, 659 (1973).

            Minn. Stat. § 518.17, subd. 2(d) (2000), states that

[t]he court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child.  However, the court shall use a rebuttable presumption that joint legal * * * custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents.

 

Domestic abuse is defined as physical harm, bodily injury or assault; infliction of fear of imminent physical harm, bodily injury, or assault; or terroristic threats by one family or household member against another.  Minn. Stat. § 518B.01, subd. 2(a) (2000).

There was testimony put forth by appellant's psychologist that appellant suffers from post traumatic stress disorder (PTSD), which can be attributed to abuse by respondent in addition to the stress of the litigation, raising the four children on her own, and her lifestyle in Minnesota.  Appellant testified that she had suffered abuse by respondent since the second month of their marriage.  She also testified that the children suffered abuse by their father.

Both parties were represented by counsel and stipulated to joint-legal custody.  Appellant acknowledged the stipulation for joint-legal custody at trial.  In a posttrial memorandum, appellant's counsel stated that custody was not an issue submitted to the district court for determination.  It was not until the appeal that appellant, with a new attorney, argued that the stipulation for joint legal custody should now be set aside.  We affirm the district court on this issue.  It is difficult to second-guess a district court that was told at trial that there is a stipulation for joint-legal custody, and was then told in a posttrial memorandum by appellant's counsel that joint-legal custody was not an issue.  We note that with respondent in Maryland and appellant in Minnesota with physical custody of the children, joint-legal custody for respondent should not hamper appellant's ability to make the day-to-day decisions about child rearing for the family.  We affirm the district court's determination of joint-legal custody.

III.             Spousal Maintenance

            Appellant argues that she is entitled to permanent-spousal maintenance because she meets the criteria for an award of maintenance under Minn. Stat. § 518.552 (2000).  She asserts that the district court can consider her PTSD disability resulting from respondent's alleged spousal abuse (and the pending litigation) in deciding whether to award her maintenance.  She claims that the district court's decision not to award her spousal maintenance, because respondent lacked sufficient means to pay maintenance, was based on an erroneous calculation of respondent's net monthly income.

            We review a district court's maintenance award under an abuse of discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  We cannot conclude there was an abuse of discretion unless the conclusion is clearly erroneous and against logic and the facts on the record.   Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).

            The district court can award spousal maintenance if the spouse seeking it (1) lacks sufficient property to provide for his or her needs and (2) is unable to adequately support himself or herself through appropriate employment.  Minn. Stat. § 518.552, subd. 1 (2000). 


The court is then to set the amount of maintenance, without regard to marital misconduct, by balancing the needs of the spouse receiving maintenance against the financial condition of the spouse providing it.

 

Burt v. Burt, 386 N.W.2d 797, 799-800 (Minn. App. 1986) (citation omitted), review denied (Minn. July 16, 1986).  The court can consider financial needs resulting from chronic health problems caused by physical abuse during the marriage without violating the statutory prohibition against considering marital misconduct.  Id. at 800.

            The record shows that the alleged abuse by respondent and stress from the litigation are not the only factors contributing to appellant's diagnosis of PTSD.  Other contributing factors are verbal abuse from appellant's mother, memories of a traumatic arrest by an officer; relationship problems with appellant's current controlling boyfriend; stress with her sons; and admitted past cocaine, marijuana, and alcohol use.  While abuse can be considered for purposes of establishing a chronic health problem, it is apparent that other factors in appellant's life contribute to her PTSD.

            The district court found that appellant did meet the threshold for spousal maintenance under Minn. Stat. § 518.552 but declined to award her the maintenance because "respondent does not have sufficient income to meet his reasonable needs and to pay maintenance."  Appellant contends that the district court's conclusion is based on an erroneous calculation of respondent's net monthly income.  The district court found respondent's net monthly income to be $1,937.03 even though respondent submitted a statement that his net monthly income is $2,532.31.

            The district court did not state why it concluded that respondent's net income is roughly $600 below his stated income.  Review of the record, however, shows that the district court did not include respondent's overtime in calculating his income.   The district court did find that respondent's reasonable monthly expenses were $2,000 plus his child support obligation of $755.43.  Even assuming the higher net income, respondent has a monthly net loss of over $220.  Under the district court's finding, respondent has a net loss of over $800.  In either case, the district court did not err in concluding that respondent does not have sufficient income to met his reasonable needs and pay maintenance now.

            A district court may reserve jurisdiction over the issue of maintenance for determination at a later date.  Minn. Stat. § 518.55, subd. 1 (2000).  We find no error in the district court's decision to reserve maintenance rather than award it immediately. 

IV.              Allocation of Equity

Appellant does not dispute that the money given to appellant and respondent by respondent's parents ($75,260 total) for purchase of their Maryland home in 1987 is marital debt.  She argues, however, that the loans should not be used to offset appellant's equity in the homestead and increase the marital debt.  Appellant asserts that the statute of limitations has run under Maryland law, and that under Minnesota law, because there were no loan instruments or promissory notes, the loans are uncollectible. 

The district court has broad discretion with respect to the division of property.  Rutten, 347 N.W.2d at 50.  For this court to conclude the district court abused its discretion, the district court's determination must be "against logic and the facts on [the] record."  Id. (citation omitted).

The district court struggled with this issue as evidenced by a footnote in the judgment and decree mentioning that there was no evidence as to the enforceability of the debt in Maryland and questioning whether the statute of limitations expired.  The district court, however, took this into consideration, looked at the overall figures, and awarded some of the parties' stock to appellant and gave respondent the debt.  Looking at the record, we do not find that the district court abused its discretion on this issue.

V.                 Attorney Fees

Appellant argues that the district court abused its discretion by ordering respondent to pay only $5,000 of appellant's attorney fees, given the fact that appellant and the children live at the poverty level and respondent did not cooperate with the discovery process. 

Under Minn. Stat. § 518.14, subd. 1 (2000), in a dissolution proceeding the court shall award attorney fees, costs, and disbursements if the fees are necessary for the good faith assertion of the party's rights, the nonmoving party does have the ability to pay the fees, and the moving party does not have the ability to pay them.  The court can also award attorney fees based on conduct.  Id.  An award of attorney fees under Minn. Stat. § 518.14 "rests almost entirely within the discretion of the [district] court and will not be disturbed absent an clear abuse of discretion."  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).

The district court made findings that appellant is unable to support herself, has  income consisting of only child support and food stamps, and should be awarded part of respondent's nonmarital assets based on undue hardship. Appellant's attorney fees are $26,347.59, which the district court found to be reasonable.  While the district court's award of $5,000 is conservative, it is difficult for an appellate court to state the exact lowest amount of attorney fees to be awarded to survive appellate review.  We find the award within the bounds of district court discretion.

VI.              Excluding Evidence

 

Respondent argues that the district court erred by excluding a letter from respondent's aunt to him regarding a gift of 200 shares of General Electric stock, which he claims prejudiced his ability to trace the stock.  Respondent gives no argument to support why he believes exclusion of the evidence prejudiced him.  Rather, respondent recites facts regarding the stock splits in 1994 and 1997 and his reinvestment of the stock.

The district court has broad discretion in ruling whether to admit evidence, and its decision will not be overturned unless it is based on an erroneous interpretation of the law or constitutes an abuse of discretion.  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).  In addition, the complaining party must demonstrate prejudicial error to be entitled to a new trial on grounds of improper evidentiary rulings.  Id.  Generally, an argument not supported by argument or authority is waived.  Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519, 187 N.W.2d 133, 135 (1971).

While it does not appear that respondent is asking for a new trial, but rather a remand for determination of nonmarital assets, he stills carries the burden of showing that he was prejudiced by the district court's decision.  The district court excluded the evidence based on a hearsay objection because the letter did not show the then existing state of mind of the writer as to whether the stock was a gift.  The district court stated that the letter merely delivered the stock certificate and that "[i]t [did] not explain the source of ownership of the stock nor express any donative intent."

Because respondent failed to show that he was prejudiced by exclusion of the evidence and that the district court abused its discretion in excluding the letter, we uphold the district court's decision to exclude the letter.

VII.           Marital or Nonmarital Assets

 

Respondent argues that the district court mischaracterized respondent's premarital and nonmarital assets as marital.  He does not dispute the fact that cash dividends received from premarital and nonmarital assets generally become marital.  Respondent does argue, however, that the shares purchased with reinvested dividends from nonmarital stock should be considered nonmarital.  Respondent also asserts that the district court erred by applying to the nonmarital Proctor & Gamble stock the "first in is the first out" accounting and tax rule.  Again, respondent gives no argument or authority to support his challenge of the "first in is the first out" rule.

All property obtained by either spouse during the marriage is presumed to be marital property, regardless of the form of ownership.  Minn. Stat. § 518.54, subd. 5 (2000).  Whether property is marital or nonmarital is a question of law, but reviewing courts defer to the district court's findings of fact unless they are clearly erroneous.  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).  The party claiming a nonmarital interest in property has the burden of proving the necessary facts by a preponderance of the evidence. Campion v. Campion, 385 N.W.2d 1, 5 (Minn. App. 1986).  The supreme court has stated that

a stock dividend or split is nonmarital property:  a stock dividend or split, the value of which is determined by market forces, does not increase the shareholder's proportionate ownership interest in the corporation and is not usually regarded as income.  Cash dividends, on the other hand, would be considered a return on the investment or income and, therefore, be marital property.

 

Nardini v. Nardini, 414 N.W.2d 184, 194 (Minn. 1987) (citation omitted).  Nardini continues, by way of an illustration, to show that shares obtained through reinvesting dividends from nonmarital property are considered marital property.[1]  Id.  See also Prahl v. Prahl, ___N.W.2d ___, ___, 2001 WL 568696, at *6-7 (Minn. App. May 29, 2001) (discussing dividend reinvestment of nonmarital stock becoming marital property).  The district court did not err in determining that stock acquired through reinvesting dividends from nonmarital stock (rather than taking the dividends in cash) becomes marital property

Finally, respondent does not cite any authority or give any argument to support his argument that the district court erred in using the "first in is first out" rule.  Again, assertions not supported by argument or authority are generally waived.  Schoepke, 290 Minn. at 519, 187 N.W.2d at 135.

VIII.        Marital Debt Assumed by Respondent

 

Respondent contends the district court did not consider additional marital debt assumed by respondent.  Respondent raised this issue in his motion for amended findings and listed several additional debts, which he claims he makes payments towards, including an IRS debt.

            The district court stated in its amended findings that respondent produced recent statements in support of only four debts showing balances due.  Further, the district court found that the parties may have incurred additional debts since their separation for which they are individually responsible.  The district court considered all evidence of debts presented at trial in making its determination and did not err in allocating the parties' debt to respondent.

            Affirmed.



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

[1]  The supreme court in Nardini hypothesized that if a party had 300 original shares and received 300 shares in a stock split, the shares would be part of the party's nonmarital property.  Nardini, 414 N.W.2d at 194.  Any shares "purchased by reinvesting dividends * * * would be marital property.Id. (emphasis added).