This opinion will be unpublished and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:

Susan Lee Witthuhn, petitioner,





Gary Warren Witthuhn,



Filed July 31, 2001


Willis, Judge


Anoka County District Court

File No. F3989970


Sandra Connealy Zick, 7050 Brooklyn Boulevard, Minneapolis, MN  55429 (for respondent)


Joseph Kaminsky, 260 Brookdale Corporate Center, 6300 Shingle Creek Parkway, Brooklyn Center, MN  55430 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge, Willis, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N


In this dissolution proceeding, appellant, who is self-employed, argues that the district court’s findings regarding his income for purposes of child support were clearly erroneous.  He also contends that the court abused its discretion by (1) awarding respondent permanent maintenance, (2) inequitably dividing the parties’ marital assets, and (3) awarding respondent an excessive amount of attorney fees.  Because we conclude that the district court’s findings were not clearly erroneous and that the court did not abuse its discretion, we affirm.




            In August 1998, respondent Susan Lee Witthuhn commenced a dissolution action against appellant Gary Warren Witthuhn.  When the proceedings commenced, respondent was working part-time as a licensed practical nurse.  Appellant is a self-employed hardwood-floor installer.  The parties are the parents of three minor children.

The court entered a temporary order in March of 1999 granting respondent, among other things, custody of the children, child support, and spousal maintenance.  That same month respondent injured her back and was unable to continue working.  Trial commenced in November 1999 but was continued pending respondent’s spinal-fusion surgery, which was performed in December of that year.  Trial recommenced in June 2000.  Respondent testified that she still had significant pain from her right lower back down through her right foot and that the pain impaired her ability to perform a range of day-to-day activities, including “anything that involves lifting or moving things around” and sitting for long periods of time. 

The parties stipulated that, with regard to spousal maintenance, they would follow the recommendations of Phillip Haber, a psychologist and rehabilitation counselor.  In a letter to the court written in August 2000, Haber concluded that respondent was “not currently medically stable, that she remains in need of relatively aggressive pain rehabilitation,” and that “it was more likely than not that [she] would have difficulty with sustained occupational activity.”  During a telephone conference in August 2000 with counsel and the court, Haber opined that respondent was “probably temporarily disabled” and that “for the moment at least, I would think she would be temporarily totally disabled from work activity.”  When the court inquired as to the possible duration of respondent’s disability, Haber responded,

Well, it’s hard to know.  One of the problems in this case is that the pain rehabilitation program folks are reluctant to take her until such time as some of the stressors are relieved, and the divorce is one of the stressors, and it kind of puts us in a difficult spot, obviously.


The curve for the normal healing process is probably nearly complete.  In other words, for the surgery itself.  And so you would think that she should be ready to go into a sedentary type position sometime within, oh, I would say 30 to 45 days from the date she enters the pain rehab program, and then probably you would want her to graduate her occupational activity probably beginning with half time and then over the next three or four months bringing it up to full time.


The district court granted respondent custody of the minor children, child support, permanent spousal maintenance, and attorney fees.  The court also divided the parties’ marital property.  This appeal follows the court’s denial of appellant’s motion for amended findings and conclusions of law or a new trial.



Appellant argues that the district court’s calculation of his income for child-support purposes is clearly erroneous because the court failed to deduct certain of appellant’s business expenses.  A district court’s determination of an obligor’s income for child-support purposes is a finding of fact that will not be set aside if it has a reasonable basis in fact and is not clearly erroneous.  State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).  When determining if findings are clearly erroneous, appellate courts view the record in the light most favorable to the district court’s findings.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).  Also, appellate courts defer to the district court’s credibility determinations.  Id. (citing Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)).

For child-support purposes, income from self-employment

is equal to gross receipts minus ordinary and necessary expenses. Ordinary and necessary expenses do not include amounts allowed by the Internal Revenue Service for accelerated depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining income for purposes of child support. The person seeking to deduct an expense, including depreciation, has the burden of proving, if challenged, that the expense is ordinary and necessary. Net income under this section may be different from taxable income.


Minn. Stat. § 518.551, subd. 5b(f) (2000).  The district court determined that appellant did not meet his burden of showing that the claimed expenses were ordinary and necessary.  In fact, the court noted that appellant’s testimony regarding his income and expenses “utterly lacked credibility.” 

            Appellant argues that the court should have relied on the expenses shown in his tax returns and his accountant’s testimony regarding the preparation of those returns.  But tax returns alone are not conclusive evidence of the amount of a person’s income.  See, e.g., Stephenson v. Stephenson, 258 Minn. 435, 436, 104 N.W.2d 517, 518-19 (1960) (explaining that tax returns are evidence of income but not conclusive as to amount of income); Otte v. Otte, 368 N.W.2d 293, 297 (Minn. App. 1985) (noting that “taxable income is not always a reliable indication of net income”).  And a party’s

practice of deducting [business] expenses for tax purposes [does] not preclude the family court from attributing these items to [that party] for purposes of determining the proper level of child support.


Gully v. Gully, 371 N.W.2d 63, 65 (Minn. App. 1985).  Further, the accountant’s testimony does not support a finding that the expenses listed on appellant’s tax returns were ordinary and necessary business expenses.  The accountant testified that he simply worked with the numbers that appellant supplied to him rather than making any independent determination as to the propriety of any claimed deduction.

Appellant also argues that the court should not have excluded certain business records, which he asserts show that the claimed expenses were ordinary and necessary business expenses.  In a proceeding to determine child support, a party has a duty to supply financial information to the court in a proper fashion and failure to do so justifies adverse inferences.  Spooner v. Spooner, 410 N.W.2d 412, 413 (Minn. App. 1987).   Here, the record shows that appellant repeatedly failed to comply with discovery requests for his financial information and did not present the business records in question to respondent until the business day before trial.  The district court did not, therefore, err in excluding those records. 

The court noted that appellant “may indeed have legitimate business expenses” but concluded that “no credible evidence was presented at trial to prove those expenses.”  The court also stated that “it was clear” that appellant “was running substantial personal expenses through his business account and that these personal expenses were accounted for as business expenses in his tax returns.”  Accordingly, the court based its calculation of appellant’s income on his “reasonable imputed income capability.”  A district court may use earning capacity to measure income where it is impracticable to determine actual income or where the obligor’s income is unjustifiably self-limited.  Warwick v. Warwick, 438 N.W.2d 673, 677 (Minn. App. 1989).  Findings of earning capacity are commonly used when determining a self-employed person’s support obligation.  See, e.g., Fulmer v. Fulmer, 594 N.W.2d 210, 213-14 (Minn. App. 1999); Beede v. Law, 400 N.W.2d 831, 835 (Minn. App. 1987); LeTendre v. LeTendre, 388 N.W.2d 412, 416 (Minn. App. 1986).  The court determined appellant’s earning capacity to be $6,529.08 per month by reviewing his earning history:  it subtracted the cost of goods sold from gross receipts for 1998 and 1999, averaged the remainders, and reduced the resulting amount by exemptions for the three children.  This court has approved district courts’ estimation of a child-support obligors’ earning capacities based on earning histories.  See Fulmer, 594 N.W.2d at 214; see also Warwick, 438 N.W.2d at 677-78 (extending earnings-history analysis to spousal-maintenance obligations). 

Viewing the record in the light most favorable to the district court’s findings, and giving due deference to its credibility determinations, we conclude that the court’s estimation of appellant’s income for child-support purposes was not clearly erroneous.


Appellant also argues that the district court abused its discretion by awarding respondent permanent spousal maintenance.  This court’s standard of review “from the district court’s determination of the maintenance award is whether the district court abused its wide discretion.”  Chamberlain v. Chamberlain, 615 N.W.2d 405, 409 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000).  This court will not find an abuse of discretion unless the court resolves the matter in a manner “that is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

Spousal maintenance is an award of “payments from the future income or earnings of one spouse for the support and maintenance of the other.”  Minn. Stat. § 518.54, subd. 3 (2000).  Maintenance may be granted if the spouse seeking maintenance demonstrates that he or she

lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or


is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. 


Minn. Stat. § 518.552, subd. 1 (2000).  When determining the amount and duration of maintenance, district courts must consider all relevant factors, including those that address the financial resources of the spouse seeking maintenance to provide for his or her needs independently, the time necessary to acquire sufficient education or training to find appropriate employment, the age and health of the recipient spouse, the standard of living established during the marriage, the length of the marriage, the contribution and economic sacrifices of a homemaker, and the resources of the spouse from whom maintenance is sought.  Minn. Stat. § 518.552, subd. 2(a)-(h) (2000).

Appellant argues that respondent is not a suitable candidate for permanent maintenance because she is able to work.  Appellant also suggests that respondent has not been working because she does not want to.  Respondent testified that following her back surgery, she continued to experience pain from her lower back down through her right foot and that the pain makes it difficult for her to do day-to-day activities, including “anything that involves lifting or moving things around.”  She also testified that she remained unable to sit for long periods of time without taking pain medication.  Phillip Haber, whose recommendations regarding spousal maintenance the parties agreed to follow, reported in an August 2000 letter to the court that, based on his review of respondent’s medical records, he believed that she was not medically stable and that she needed “relatively aggressive pain rehabilitation.”  He also wrote that “it is more likely than not” that she would have difficulty with sustained occupational activity.  During the August 2000 telephone conference with counsel and the court, Haber opined that respondent was “probably temporarily disabled.”  While Haber had concluded in a July 1999 report that respondent could do secretarial work, that evaluation preceded respondent’s surgery.  In the telephone conference, he observed that “for the moment at least, I would think she would be temporarily totally disabled from work activity.”  When the court inquired as to the possible duration of respondent’s disability, Haber responded that “it’s hard to know,” but he suggested that she would probably be able to return to work, at least part time, within 30 to 45 days of commencing a “pain-rehabilitation program.”  He also noted that respondent’s physician had recommended her to a pain-rehabilitation program, but that the program would not accept her due to the “stressors” in her life, which included the divorce.

Based on respondent’s testimony and Haber’s reports and testimony, the court found that it was unclear when respondent would be able to attend the pain-rehabilitation program and return to work.  The court also found that respondent was disabled and that her future earnings were uncertain.  Where there is “some uncertainty as to the necessity of a permanent award,” the district court shall order permanent maintenance, leaving the order open for later modification.  Minn. Stat. § 518.552, subd. 3 (2000).

Appellant cites Gales v. Gales for the proposition that permanent spousal maintenance should only be awarded in exceptional circumstances.  In particular, he cites the portion of the Gales opinion stating that

our family law jurisprudence establishes that, to consider an award of permanent maintenance, there must be an exceptional case such as the dissolution of a long-term traditional marriage in which there is an older, dependent spouse who has little likelihood of achieving self-sufficiency because of an absence from the labor market for a long period of time. 


Gales v. Gales, 553 N.W.2d 416, 421 (Minn. 1996).  But one year after release of the Gales decision, apparently fearing misinterpretation of the “exceptional case” language in Gales, the supreme court made clear in Dobrin v. Dobrin that the holding in Gales should not be taken out of context because

Gales did not change the law, but instead applied the criteria of Minn. Stat. § 518.552, subd. 2, to the record.  We take this opportunity to remind counsel that each marital dissolution proceeding is unique and centers upon the individualized facts and circumstances of the parties and that, accordingly, it is unwise to view any marital dissolution decision as enunciating an immutable rule of law applicable in any other proceeding.


Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn. 1997).  Dobrin “dispels any suggestion that Gales resurrected [the] ‘exceptional-case’ standard for awarding permanent maintenance.” Chamberlain, 615 N.W.2d at 411.  Further, “Dobrin makes clear that permanent maintenance awards are considered in light of the factors set forth in Minn. Stat. § 518.552 subd. 2.”  Id.  This is what the district court did here:  In establishing maintenance, it considered (1) respondent’s disability and the resulting uncertainty of her future earnings, (2) that she had physical custody of the three minor children, (3) that, even with child support, she had a monthly deficit of $900, (4) the standard of living during the marriage, and (5) the financial resources of both parties.  Based on these considerations, the court ordered appellant to pay respondent $900 per month in permanent spousal maintenance, to continue “until either party dies, or until [respondent] remarries, or substantial change in the economic circumstances of the parties, or until further order of this court.”  This award of permanent maintenance, subject to modification by further order, was within the district court’s discretion.


Appellant argues that the district court’s division of marital property is not equitable.  The district court has wide discretion in dividing marital property, and absent an abuse of that discretion, the court’s decision must stand.  Rutten, 347 N.W.2d at 50.  The division of property need not be mathematically equal; it need only be “just and equitable.”  Minn. Stat. § 518.58, subd. 1 (2000); Lynch v. Lynch, 411 N.W.2d 263, 266 (Minn. App. 1987), review denied (Minn. Oct. 30, 1987). 

Appellant contends that the district court abused its discretion by imputing to him $8,266.37 for the sale of the parties’ Ford Expedition.  In its March 1999 temporary order, the court instructed appellant to sell the Expedition and give the proceeds to respondent to allow her to purchase a replacement vehicle.  Appellant alleged in his motion for amended findings that he sold the Expedition at auction for as much as he could.  Respondent alleged that the reasonable value of the vehicle was $8,266.37 more than appellant received.  The district court found that respondent undersold the Expedition by this amount, and, therefore, imputed this amount to him in its property division.

Appellant also contends that the court abused its discretion by imputing to him $4,000 for a funeral-expense reimbursement, which he claims he never received.  He also claims that the district court, during the hearing on his motion for amended findings, admitted that “it made a mistake on that issue.”  The transcript from that hearing is not included in the district court record.  An appellate court may not base its decision on matters outside the record on appeal.  Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977).  Further, respondent testified that, during the marriage, appellant received a $4,000 funeral-expense reimbursement and that he spent the reimbursement on his personal rent and on his girlfriend.

Appellant also contends that the court abused its discretion by assigning to him a bill for $5,454 owed to Metropolitan Financial Management.  But respondent testified that this was a marital debt. 

Appellant further argues that the court abused its discretion by imputing to him an $8,247.37 tax refund for the parties’ 1999 taxes because he was already entitled to half that amount.  The district court imputed this amount to appellant based on its finding that he had used the entire refund to prepay his 2000 taxes.  Even assuming that the court erred by imputing to appellant a portion of the refund to which he was entitled, such error was harmless because the overall property division was just and equitable.  See Lynch, 411 N.W.2d at 50 (explaining that division of property need only be just and equitable, not equal); see also Minn. R. Civ. P. 61 (providing that harmless error is to be ignored); Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis technical error). 

Finally, we note that the district court’s imputation of marital assets and assignment of debts to appellant was based largely on credibility determinations.  This court defers to the district court’s findings based on credibility determinations.  Vangsness, 607 N.W.2d at 472.  We conclude that, in dividing the marital property, the district court did not abuse its discretion.


Appellant challenges the district court’s award to respondent of $11,871.17 in attorney fees, arguing that respondent has the ability to pay these fees.  Generally, attorney fees in dissolution cases are governed by Minn. Stat. § 518.14, subd. 1 (2000).  An award of attorney fees under section 518.14 “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987). 

Under Minn. Stat. § 518.14, subd. 1, a court may grant both need-based and conduct-based fee awards.  The court may, in its discretion, award fees, costs, and disbursements against a party who “unreasonably contributes to the length or expense of the proceeding.”  An award of conduct-based fees under Minn. Stat. § 518.14, subd. 1, may be made regardless of the recipient’s need for fees and regardless of the payor’s ability to contribute to a fee award.  See Gales, 553 N.W.2d at 423.

Here, the district court found that respondent incurred attorney fees as a result of appellant’s repeated refusal to comply with the court’s orders and respondent’s discovery requests.  The court also noted that appellant had “consistently been uncooperative” during the proceedings, that his failure to cooperate with discovery and to comply with the court’s orders “unnecessarily prolonged” the proceedings, and that the amount of attorney fees incurred by respondent was “directly related” to his behavior.  Based on these findings, the court ordered appellant to pay respondent’s attorney fees.  The district court’s findings are supported by the record, and it did not, therefore, abuse its discretion in granting a conduct-based fee award.