This opinion will be unpublished and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

CX-01-263

 

 

In Re the Marriage of:

David W. Ganyo, petitioner,

Appellant,

 

vs.

 

Emily Jean Engen,

Respondent.

 

 

Filed September 25, 2001

Affirmed

Parker, Judge*

 

Ramsey County District Court

File No. FX8622595

 

 

Lawrence D. Olson, Michael R. Paul, Lawrence D. Olson & Associates, P.A., 2860 Snelling Avenue North, Roseville, MN  55113 (for appellant)

 

Marilyn J. Michales, Rebekah M. Brown, Honsa and Michales, P.A., 5500 Wayzata Boulevard, Suite 1075, Minneapolis, MN  55416 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Parker, Judge.


U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            Appellant David Ganyo and respondent Emily Engen each challenge the district court’s refusal to modify Ganyo’s maintenance obligation to Engen.  Ganyo alleges the district court overstated his income, erroneously adopted the pension calculation of Engen’s expert, understated Engen’s income, and made inadequate findings of fact regarding his expenses.  Engen challenges the district court’s determination that she failed to show changed circumstances justifying a maintenance modification.  Ganyo also alleges the district court should have terminated his obligation to secure his maintenance obligation and should not have adopted Engen’s proposed findings verbatim or awarded her attorney fees.  Because the district court did not misapply the law or make findings unsupported by the record, we affirm.

D E C I S I O N

I.

            A party “cannot complain” if “inadequate documentation” leads, in part, to denial of the party’s motion.  Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987).  The district court found that Ganyo (a) made incomplete discovery responses that lacked tax returns and bank statements, as well as information on his social security benefits, real estate interest, deferred compensation plan, acquisition of assets, and expenses; (b) submitted documentation showing that he had $220.07 in his bank account but failed to indicate that, during this proceeding, he transferred approximately $100,000 to his current wife;[1] (c) made subsequent discovery responses that also failed to produce tax returns, bank statements deferred compensation statements, and information on his monthly expenses; and (d) appeared to misrepresent his financial position.  Where, as here, discovery requests are reasonable, a refusal to produce timely discovery is, quite simply, unacceptable and justifies adverse inferences by the district court.  Solon v. Solon, 255 N.W.2d 395, 396 (Minn. 1977); Bollenbach v. Bollenbach, 285 Minn. 418, 428, 175 N.W.2d 148, 155 (1970).  We note that, among other things, a failure to timely produce discovery forces the district court to estimate regarding the missing information and that such estimations must be based on credible sources.

II.

            Ganyo challenges the district court’s adoption of findings proposed by Engen.  Adoption of proposed findings “is not reversible error per se” but “raises the question of whether the trial court independently evaluated each party's testimony and evidence.”  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  Because the district court adopted only selected findings and parts of findings proposed by Engen, we conclude that he independently evaluated both the record and Engen’s proposed findings.

III.

            Each party challenges the district court’s denial of their motion to modify maintenance.  Whether to modify maintenance is discretionary with the district court and requires the moving party to show both a substantial change in circumstances and that the change renders the existing maintenance award unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (2000); Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997); Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981).  Here, the crux of the parties’ arguments is the basis of the district court’s findings of fact.  Maintenance-related findings are not set aside unless clearly erroneous.  McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989).  To successfully challenge a district court’s findings,

[t]he party challenging the findings must show that despite viewing [the] evidence in the light most favorable to the trial court’s findings (and accounting for an appellate court’s deference to a trial court’s credibility determinations and its inability to resolve conflicts in the evidence), the record still requires the definite firm conviction that a mistake [has been] made.  Only if these conditions are met, that is, only if the findings are “clearly erroneous” does it become relevant that the record might support findings other than those that the trial court made.

 

Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  “That the record might support findings other than those made by the trial court does not show that the court's findings are defective.”  Id. (citing Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951)).


A.        Engen’s Claims

            Engen alleges she showed the changed circumstances necessary to support her motion for increased maintenance.  The district court found Engen has a net monthly income from employment of $1,054.13, receives $900 in monthly maintenance, and has reasonable monthly expenses of $2,200, while Ganyo has net monthly income of $3,511 and reasonable monthly expenses, not including maintenance, of $1,800.  Thus, after the transfer of maintenance, Engen has a monthly deficit of $246.87 while Ganyo appears to have a nominal monthly surplus of $811.  These facts suggest that Ganyo’s circumstances have improved.  See Ganyo v. Engen, 446 N.W.2d 683 (Minn. App. 1989) (affirming maintenance award creating monthly deficit of about $200 for Ganyo).  As discussed above, however, the incomplete state of this record required the district court to estimate various figures.  Similarly, as noted below, while Ganyo has voluntarily retired, it is undisputed that he has incurred increased costs as a result of doing so.  We conclude that the apparent surplus for Ganyo presented by this record allows an adequate tolerance for inaccuracy in the district court’s estimates of his income and expenses.  Therefore, we do not reverse the district court’s denial of Engen’s motion to increase maintenance.

B.        Ganyo’s Claims

            The district court found Ganyo’s net monthly income included social security, pension income, and interest on savings and his deferred compensation plan.  Ganyo alleges that social security should not be included because he has elected not to receive it at this time and because the amount imputed to him is a gross, rather than net, figure.  Where a maintenance obligor declines or refuses to accept available income, the district court may impute that income to the obligor.  See Walker v. Walker, 553 N.W.2d 90, 94 (Minn. App. 1996) (affirming imputation of full amount of pension benefit to maintenance obligor where obligor received lower pension benefit because he granted interest in pension to second wife).[2]  Because of Ganyo’s failure to produce complete financial information, we cannot say to what degree, if any, the inclusion of a gross rather than net social security amount might alter his maintenance obligation.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating, to prevail on appeal, appellant must show both error and prejudice); cf. Minn. R. Civ. P. 61 (harmless error is ignored).

            Ganyo alleges that because he was married for 65% of the time he earned the pension and because the pension was awarded to him as property in the dissolution, only 35% of his pension benefits should be considered when determining his income for maintenance purposes.  Ganyo’s analysis is inconsistent with that proposed by Engen’s pension expert, which specifically addressed Ganyo’s post-dissolution increases in salary.  If the value of the pension benefit Ganyo had earned as of a date less than a year before the dissolution is subtracted from the benefit he would have if he had not granted his second wife an interest in his pension, the result is over $400 more than the amount imputed to Ganyo by the district court.  While Ganyo alleges mistakes in the calculations made by wife’s expert, the record lacks an expert valuation of the pension by Ganyo and we defer to district court determinations regarding the weight and credibility of expert evidence.  Alstores Realty, Inc. v. State, 286 Minn. 343, 353, 176 N.W.2d 112, 118 (1970).

            Ganyo also argues that the record does not support the adoption of Engen’s allegation regarding the amount of interest income attributable to Ganyo from his deferred compensation and investments.  While the discovery problems in this case produced an understandably sparse record on this point, the record lacks information indicating that the district court clearly erred in estimating Ganyo’s interest income.  Ganyo also argues that the district court’s analysis requires him to use the principal of his deferred compensation funds to meet his obligations and that, because the market fluctuates, he is not assured of any particular return.  We decline to speculate about future events or whether they might justify a future motion to modify maintenance. 

            Ganyo alleges that the district court understated Engen’s income because he failed to consider that Engen can work full time.  But, because Engen received permanent maintenance, she is not required to become self sufficient.  Schroeder v. Schroeder, 405 N.W.2d 267, 269 (Minn. App. 1987).  Additionally, viewing the information in Engen’s affidavit regarding her employment and health in the light most favorable to the district court’s finding of her income, the district court’s implicit finding that Engen is not able to work full time could not be deemed clearly erroneous.  We also reject Ganyo’s allegation that the maintenance award is defective because it omits consideration of Engen’s partial interest in a house in North Dakota.  The record lacks any indication that Engen’s interest could produce enough income to require alteration of the maintenance award.[3]

            Ganyo alleges Engen failed to disclose a workers’ compensation claim.  While the file indicates Engen has a “[p]ossible workers’ compensation claim” of “[u]ndetermined” value, the record lacks any proof that the value is more than nominal or that Engen pursued it.  We also reject Ganyo’s allegation that Engen failed to account for the proceeds of the marital home.  The district court found that Engen sold the home to reduce her expenses and bought a townhouse. 

            Ganyo alleges the finding that his reasonable monthly expenses are $1,800 is insufficiently specific to allow review of his claim of increased expenses.  But the bulk of Ganyo’s alleged (and rejected) increase in expenses is a result of his losing his employer’s subsidization of his medical and life insurance upon his voluntary early retirement. 

IV.

            Ganyo challenges the district court’s denial of his motion to terminate his duty to secure his maintenance obligation with life insurance.  Because we affirm the district court’s findings of Ganyo’s income and expenses and in light of his apparent surplus, we cannot say that it was an abuse of the district court’s discretion to deny the motion to terminate his duty to secure his maintenance obligation.  Laumann v. Laumann, 400 N.W.2d 355, 360 (Minn. App. 1987) (stating whether to require security for maintenance is discretionary with district court), review denied (Minn. Nov. 24, 1987).

V.

            The district court awarded Engen $1,800 in attorney fees.  Ganyo admits these attorney fees are conduct-based.  See Minn. Stat. § 518.14, subd. 1 (2000) (stating the court “shall” award need-based attorney fees and that, “at its discretion[,]” the court may award “additional fees * * * against a party who unreasonably contributes to the length or expense of the proceeding”).  The district court found that Ganyo’s failing to produce complete discovery and his conduct in what “appeared” to be misrepresentation of his financial position unnecessarily lengthened these proceedings.  These findings are supported by this record.  Therefore, we affirm the fee award. 

            Affirmed.

 



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

[1]  Ganyo alleges that “a vast majority” of these assets actually belonged to his current wife and should not have been attributed to him.  Because the allegations of Ganyo and his current wife regarding these funds were not consistent, we will not alter what was, essentially, a credibility determination by the district court.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating appellate courts defer to district court credibility determinations); Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) (appellate courts defer to district court resolution of fact issues presented by conflicting affidavits); cf. Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) (stating “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”).

[2]  This aspect of Walker is applied to Ganyo’s allegation that the district court overstated his income by ignoring the reduction in his pension benefits caused by his grant to his second wife of an interest in the pension, most of which he earned during the parties’ marriage.

[3]  Ganyo alleges the district court failed to consider the equity in Engen’s current home.  This argument is unclear.  Ganyo produced no evidence indicating that liquidation and investment of that equity would result in a decreased need for maintenance by Engen.