This opinion will be unpublished and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

C6-01-194

 

In Re the Marriage of:

Connie Lynn Glazier, petitioner,
Appellant,

vs.

Gregory Ward Glazier,
Respondent.

 

Filed July 31, 2001

Affirmed; motions denied

Crippen, Judge

 

Wright County District Court

File No. F598237

 

 

Janice R. Tarvestad, Tarvestad Law Office, 2219 Chelmsford Lane, St. Cloud, MN 56301-9012 (for appellant)

 

John C. McIntosh, McIntosh Law Office, P.O. Box 331, 200 North Central Avenue, Buffalo, MN 55313 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

 

CRIPPEN, Judge

 

In August 2000, the Court of Appeals remanded this case with specific instructions that the trial court remedy its failure to provide a rationale for valuation of the parties’ business and an explanation for the decision against a maintenance award.  The trial court has now stated its reasons for the decisions.  Because these reasons are grounded in findings of fact that are amply supported by the evidence, we affirm. 

FACTS

 

In 1999, appellant Connie Glazier obtained review of various aspects of the April 1999 judgment divorcing her from respondent Gregory Glazier, including the valuation of their hardware business and the denial of her request for spousal maintenance.  In August 2000, the case was affirmed in part, dismissed in part,[1] and remanded to determine the rationale for the valuation of the business[2] and the denial of spousal maintenance. [3]

The trial court subsequently reaffirmed its earlier judgment.  The court provided findings on how it arrived at the $136,653 valuation of the business.  The court explained that it considered the intangible “goodwill” value of the business, inventory, value of parties’ one-half share of the building, and amount owed for fixtures, mortgage, and additional inventory.[4] 

            The trial court also reaffirmed its denial of spousal maintenance despite appellant’s showing that she has monthly expenses of $2,434 and a monthly income of $430 plus child support.  The court explained that after the payment of child support, health-insurance premiums, unpaid wages and business profits to appellant, and factoring in the debt allocable to respondent, respondent also had a monthly deficit and did “not have the ability to meet his needs while meeting the needs of [appellant].”  The court took into consideration the parties’ standard of living while married and appellant’s current and future employability.  Appellant now challenges the amended order, and respondent moves to strike portions of appellant’s brief and appendix and seeks a $750 award for attorney fees.

D E C I S I O N

Generally, the appellate court’s decision determines the scope of the hearing on remand:

It is the duty of the trial court on remand to execute the mandate of [the appellate] court strictly according to its terms.  The trial court has no power to alter, amend, or modify [the appellate court’s] mandate.

 

Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982) (citations omitted).  If a case is remanded “without any express directions[,] the trial court is free to proceed in any manner not inconsistent with the [remanding] opinion.”  John Wright & Assocs., Inc. v. City of Red Wing, 256 Minn. 101, 102, 97 N.W.2d 432, 434 (1959) (citation omitted).  These rules apply to family law cases.  E.g., Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988). 

1.                  Business valuation

Asset valuations are findings of fact, and an appellate court will not reverse a trial court’s valuation of an asset unless it is “clearly erroneous on the record as a whole.”  Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975) (citations omitted).  In the absence of a specific instruction by this court, the trial court has the discretion to determine whether it is necessary to reopen the record on remand.  Hughes v. Hughley, 569 N.W.2d 534, 537 (Minn. App. 1997). 

This court instructed the trial court to redetermine the business valuation and to make findings supporting that value.  This instruction did not translate into a mandate to accept all evidence submitted by the parties, as appellant claims.  See Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) (“The finder of fact is not required to accept even uncontradicted testimony if the surrounding facts and circumstances afford reasonable grounds for doubting its credibility.” (citation omitted)).

In determining valuation, the trial court made specific references to documentary and testimonial evidence.  The court took into consideration the age of the building, competition in the immediate area, cash flow, goodwill value or lack thereof, and assets and liabilities of the store.  See Nardini v. Nardini, 414 N.W.2d 184, 190 (Minn. 1987) (listing factors that the court shall take into consideration in reaching a “reasonable valuation,” which include the nature and history of the business since its inception; “[t]he economic outlook in general and the condition and outlook of the specific industry in particular”; the “financial condition of the business”; and the existence of “goodwill or other intangible value” (footnote omitted)).  Although appellant claims that another valuation method should have been used, there is “no universal formula for determining the value of a closely held business.”  Id. at 189.  Without providing adequate support for her claim that the trial court’s findings are clearly erroneous, appellant has not met her burden of proof and her claim must fail.  See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (stating appellate courts cannot assume trial court error).

The record as a whole supports the trial court’s valuation of the business.  The court has provided specific findings on the elements of value, which are adequately supported by the record.  These findings, including the ultimate finding on valuation, are not clearly erroneous.  

2.         Spousal maintenance

Appellate courts review a trial court’s maintenance award under an abuse of discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  For this court to conclude that the trial court abused its discretion, the court’s factual findings must be “against logic and the facts on [the] record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).  “Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous.”  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992) (citation omitted).  While Minn. Stat. § 518.552 (2000) lists factors the court should consider in setting the amount and duration of maintenance, “no single factor * * * is dispositive” and the principal issue is the recipient’s need balanced against the obligor’s financial condition.  Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982) (citation omitted).

Courts should take into consideration various factors, such as “the ages of the parties and the earning ability of each”; the duration of the marriage; “the circumstances and necessities of each”; “the accumulated debts and liabilities”; and “the capacity and ability to obtain new employment” if needed.  Hertz, 304 Minn. at 147, 229 N.W.2d at 45. 

Here, the trial court denied maintenance because it found that respondent did not have the ability to meet his needs while meeting the needs of appellant.  After payment of child support, health-insurance premiums of $500 (presumably per month), unpaid wages to appellant in the amount of $1,920, business profits to appellant in the amount of $14,831, and other debts allocable to respondent, the court determined that respondent had a monthly deficit.  The court considered appellant’s capacity and ability to obtain new employment, stating that she had a degree in retail sales and marketing and would be able to work more hours during the school year when the children would be out of the home.  The court took into account the parties’ standard of living, finding that the parties had enjoyed a “modest lifestyle[,] * * * drove used cars, * * * [and] enjoyed few luxury items.”  The court also factored in respondent’s future living expenses, observing that he was living in the unfinished basement of the hardware store but planned on finding permanent housing.

Appellant challenges the court’s findings on respondent’s income, but this court already affirmed the trial court’s determination of respondent’s monthly income, and appellant may not now relitigate that issue.  See Geckler v. Samuelson, 438 N.W.2d 740, 741 (Minn. App. 1989) (“[T]he scope of review on appeal from an amended judgment is limited to issues directly affected by the amended judgment, which were not reviewable on appeal from the original judgment.” (citations omitted)).  The trial court’s explanation of all factors relevant to the maintenance award demonstrates the absence of an abuse of discretion.

Respondent’s motion to strike various documents from the appendix to appellant’s brief is denied.  There is no indication that respondent was prejudiced by the trial court’s receipt of the documents, and any error in not striking them was harmless.  See Minn. R. Civ. P. 61 (requiring harmless error to be ignored).  Because the attorney-fee motion is tied to the motion to strike, we deny respondent’s request for fees.

Affirmed; motions denied.



[1] Because appellant failed to provide a complete transcript on the first appeal, this court was unable to review claims regarding her non-marital interest in the home, respondent’s income, and the denial of appellant’s posttrial motion seeking amended findings.  This court dismissed those portions of the appeal.  Glazier v. Glazier, No. C9-99-1645, 2000 WL 1219410, at *1 (Minn. App. Aug. 29, 2000).

 

[2] This court instructed on valuation as follows:

 

The district court’s discussion, however, does not reveal its rationale for arriving at the figures it used in reaching its valuation.  Moreover, there may be a discrepancy between what father claims is the business’s income and the actual deposits into the business’s account.  We remand for the district court to reevaluate the business valuation, to make any necessary adjustments thereto, and to make findings explaining whatever value it ultimately finds to be appropriate.

Id. at *2.

 

[3]  This court instructed on the maintenance decision as follows:

 

Here, before accounting for his duty to provide the children’s medical insurance, father has a monthly surplus while mother, after receipt of child support, has a monthly deficit.  The district court, however, denied maintenance without explaining why it did so.  We remand for the district court to reevaluate its maintenance decision, to make any adjustment to it that is equitable under the circumstances, and to make findings explaining its decision.

 

Id. (citation omitted).

 

[4] The trial court provided the following calculations to arrive at the $136,653 valuation.

           

ASSETS:                     Inventory                      132,726

                        Building                          61,000

                        Fixtures                            6,000

                                                            199,726                       199,726

 

LIABILITIES:            Ed Glazier

(respondent’s father)     33,000

                        Fixtures                          6,000

                        TruServ                        24,073

                                                            63,073                         63,073

 

NET VALUE OF BUSINESS:                                                          136,653