This opinion will be unpublished and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

C2‑01‑516

 

In Re the Marriage of:

 

Susan Jean Klang, petitioner,

Respondent,

 

vs.

 

Gary Richard Klang,

Appellant.

 

Filed October 9, 2001

Affirmed

Gordon W. Shumaker, Judge

 

Polk County District Court

File No. F3‑00‑573

 

Patti J. Jensen, 610 2nd Avenue Northeast, P.O. Box 386, East Grand Forks, MN 56721-0386 (for respondent)

 

Gary R. Klang, c/o USN, 2550 South Columbia Road, Grand Forks, ND 58201 (pro se appellant)

 

Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and

 

Lindberg, Judge.*

 


U N P U B L I S H E D  O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

Appellant-husband Gary Klang challenges the district court’s dissolution judgment and post-dissolution orders, arguing that the district court (a) understated his reasonable monthly expenses and overstated his ability to pay maintenance; (b) erred in awarding respondent‑wife maintenance; (c) understated wife’s income; (d) inequitably divided the parties’ property; (e) incorrectly considered his posttrial submissions as a request for reconsideration and improperly refused to consider newly discovered evidence; (f) did not require wife to produce discovery; and (g) refused to let him present oral testimony at a posttrial hearing.  We affirm.

FACTS

 

Appellant-husband Gary Klang and respondent‑wife Susan Klang dissolved their six-year, childless marriage in November 2000.  Husband was 36 years old at the time of dissolution and is a high school graduate with two years of college education.  During the marriage, he was on active duty as an officer in the United States Navy, and has remained in the Navy for the past 13-½ years.

Wife was 28 years old at the time of dissolution.  During the marriage, she worked in various retail and service positions, attended school on a part-time basis, and worked full time when she was not attending school.  In April 2000, wife completed the course requirements for a certificate in massage therapy, and in July 2000 she sat for and successfully passed the national certification exam.  While attending massage therapy school wife worked part time as a bartender, and she has continued to work as a part-time bartender since completing her schooling.  At the October 2000 trial, wife testified that she earns $5.15 an hour plus $30‑$40 in nightly tips, and is “newly” self-employed.  She plans to operate an in-home massage therapy business, has purchased equipment to do so, and is awaiting the court’s disposition of the parties’ homestead.

In the dissolution decree, the district court determined that (1) husband’s net monthly income was $2,620.07; (2) wife’s net monthly income was $744; (3) both parties had reasonable monthly living expenses of $1,500; (4) it will take wife one to two years to develop a client base for her massage therapy business; (5) wife is capable of working full time and will eventually be self-sufficient; (6) an award of temporary maintenance to wife in the amount of $900 per month for a period of two years was appropriate; and (7) husband was able to pay the monthly maintenance award.

The district court awarded wife the parties’ homestead, the 1993 Plymouth Laser automobile, miscellaneous articles of household furniture, furnishings and appliances, and a share of husband’s retirement benefits.  Husband was awarded the 1998 Harley Davidson motorcycle (valued at $14,570, subject to a $3,586 loan), the majority of his retirement benefits, and his non-marital property, consisting of a camcorder, stereo, entertainment center, and boat.  The district court allocated the parties’ debts, finding husband and wife responsible for $8,146 and $5,400 respectively.

Husband moved to amend the district court’s property division and maintenance order or, in the alternative, for a new trial.  Husband also moved for an order to compel discovery of wife’s 2000 income.  The court denied both motions.  Husband appeals.

D E C I S I O N

1.        Determination of husband’s reasonable needs

Husband argues that the district court erred in its finding as to his reasonable living expenses.  Husband submitted a budget to the court and claimed $2,055.88 as his monthly living expenses.  The district court found husband’s reasonable expenses to be $1,500 per month.  Husband argues that the district court underestimated his living expenses and that the record does not support this finding.

In determining a party’s reasonable needs, a district court’s calculation of estimated living expenses must be supported by the evidence.  Rask v. Rask, 445 N.W.2d 849, 854 (Minn. App. 1989).  Husband testified that at the time of trial he was living with a friend.  He did not pay rent.  He further testified that he planned on moving out of his friend’s home into an apartment, if he was not awarded the homestead.  Husband included the $680.74 mortgage payment as his housing expense, with an additional expense of $160 for utilities.  Husband’s claimed budget also included a monthly expense of $372.14 for car payments.  At trial he testified that he had access to two vehicles, one which his brother owned and one which the Navy provided for his use.  He was not required to make payments for the use of either vehicle.

The court accepted the majority of husband’s claimed expenses, finding that they were reasonable.  As of the time of trial, husband had not secured a permanent home, and he was not paying the car payments claimed in his budget.  These were estimated expenses.  The evidence supports the district court’s finding that husband has $1,500 in reasonable monthly needs.  See Minn. R. Civ. P. 5201 (findings of fact will not be altered unless clearly erroneous).

2.         Wife’s income

Husband challenges the district court’s finding that wife’s net monthly income is $744.  He argues that although wife testified that she earns $344 per month in wages, and between $30-$40 nightly in tips, he was unable to verify this information because wife’s counsel failed to provide him with copies of wife’s 2000 pay stubs.  He also argues that wife is underemployed and could earn substantially more money working as a massage therapist.

Wife submitted the parties’ joint 1999 income tax return for verification of her earnings, and included a copy of husband’s W2 form.  She also provided a handwrittendocument detailing her earnings for 2000.  Wife testified that she is employed as a bartender, she works two to three days a week, and earns $5.15 per hour plus tips.  The district court found that wife’s net income was $744 per month, which was comprised of $344 in wages, and $400 in tip income.  We defer to the district court’s calculation of wife’s income and conclude that the record supports the finding.

3.         Temporary spousal maintenance

Husband argues that the district court abused its discretion in awarding wife $900 per month for two years in temporary spousal maintenance.

The district court has broad discretion in deciding whether to award maintenance and in determining the duration and amount of maintenance.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  This court will not disturb a maintenance award if it has a “reasonable and acceptable basis in fact and principle.”  Dubois v. Dubois, 335 N.W.2d 503, 507 (Minn. 1983).  To successfully challenge a district court’s factual findings, the party challenging the finding

must show that despite viewing that evidence in the light most favorable to the [district] court’s findings, * * * the record still requires the definite and firm conviction that a mistake was made.

 

Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  Underlying factual findings will be set aside only if they are clearly erroneous.  McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989).

District courts may grant maintenance to a spouse upon finding the spouse lacks sufficient property to provide for reasonable needs or is unable to provide adequate self- support through employment.  Minn. Stat. § 518.552, subd. 1 (2000).  Once the district court has determined a party needs maintenance, Minn. Stat. § 518.552, subd. 2 (2000), provides factors for the court to consider in determining the amount and duration of maintenance.  Based on these factors, the equation for determining the amount and duration of maintenance is essentially the recipient’s need balanced against the obligor’s financial condition.  Erlandson,318 N.W.2d at 39-40.  Husband claims that he is financially unable to meet a $900 per month maintenance obligation without incurring additional debt, and argues that the award is excessive.

In awarding maintenance the district court found that

[Wife] is presently working part-time as a bartender, earning $5.15 per hour plus tips.  Her net wages average approximately $172.00 every two weeks and she also earns approximately $100 per week in tips.  She plans to set up business as a massage therapist, working out of her home.  She expects that it will take her one to two years to build up a client list and eventually expects to earn approximately $29,000 per year from that business.  [Wife] is in good health and is able to work full-time and will eventually be able to provide for her own support.

 

The threshold requirement for an award of maintenance is met because the district court’s findings support the finding that wife, at the time of trial, was unable to provide adequate self‑support through appropriate employment.  See Minn. Stat. § 518.552, subd. l(b).  The district court also made adequate findings on the statutory factors pertaining to the amount and duration of maintenance.  See Minn. Stat. § 518.552, subd. 2.  In addition to determining the parties’ respective incomes and wife’s reasonable expenses, the court found that wife was capable of full-time employment and was in goodhealth.  Taken as a whole, the district court’s findings demonstrate consideration of the relevant factors.  Although wife completed her studies in April 2000 and her boards in July 2000, she had no practical working experience in her field.  We conclude the maintenance award was reasonable.

Husband argues that the district court abused its discretion in awarding maintenance because of his inability to pay.  The $900 per month maintenance obligation plus husband’s expenses of $1,500 per month are less than his net income of $2,620.07 per month.

Husband argues that his income has decreased since trial, and therefore his maintenance obligation should be modified.  Husband’s proper recourse lies in a modification motion under Minn. Stat. § 518.64, subd. 2(a)(1) (2000), which specifically contemplates redress for changed circumstances.  The district court acted within its discretion in awarding maintenance.

4.         Valuation and distribution of marital property

Husband challenges several aspects of the district court’s property division.  The district court is given broad discretion regarding the division of property in marriage dissolutions and will be reversed only for a clear abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 296 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  We will affirm a district court’s division of property if it has an acceptable basis in fact and principle even though this court may have taken a different approach. Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984).

The district court awarded wife the parties’ encumbered homestead.  Husband argues that the district court, relyingon the assessor’s market value, erroneously valued the homestead at $63,500.  Husband testified that the parties purchased the home in 1998 for $87,000.  The parties did not make a down payment on the home and purchased the home subject to a $87,000 mortgage.  Husband testified that he made several improvements to the home, including replacing the floors and installing central air conditioning, and he opinedthat the home’s value was at least $87,000.

An appellate court will not reverse a district 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).  We have thoroughly reviewed the record and we conclude that husband has failed to show clear error in the valuation of the homestead awarded to wife.  The court accepted wife’s testimony and documentation supporting her opinion that the property’s value was $63,500.  Husband had the opportunity to present expert testimony on the value of the home, and did not do so.  He testified to the value of the home.  See Lehman v. Hansord Pontiac Co., 246 Minn. 1, 6, 74 N.W.2d 305, 309 (1955) (noting that property owners are presumptively familiar with, and may testify to, the value of their property); Johnson v. Johnson, 392 N.W.2d 922, 925 (Minn. App. 1986) (applying Lehman in dissolution proceeding).  The court’s valuation of the homestead is within the limits of credible estimates made by competent witnesses.

A district court’s division of marital property need not be mathematically equal; it need only be just and equitable.  Minn. Stat. § 518.58, subd. 1 (2000).

Prior to trial, the parties agreed to divide their personal property.  Husband testified that he removed his personal property from the homestead upon the parties’ separation.  He further testified that the household furniture and appliances “should stay with the house.”  The district court, noting that the parties had previously divided their personal property, awarded each party the property currently in their possession.[1]  Wife was awarded the homestead ($63,500, subject to $87,000 mortgage), the 1993 Plymouth Laser ($3,500)[2], and was ordered to assume $5,400 in marital debts, not including the mortgage.  Husband was awarded the motorcycle ($10,984) and was ordered to assume $8,146 in marital debts. Husband alleges that the disparity in awards is greater than $83,000.  We disagree.  In addition to the previously agreed upon division of personal property, wife was awarded assets totaling $25,400 ($63,500 - $87,000 + $3,500 - $5,400 = - $25,400), and husband was awarded assets totaling $2,838 ($14,570 - $3,586 - $8,146).  We conclude that the property division was equitable.

5.        Motion seeking amended findings or a new trial

Husband argues that the district court erred by construing his motion for amended findings or, alternatively, for a new trial as a motion for reconsideration.  The district court denied husband’s motion, finding that husband “offers no new facts or argument that were not presented or available at trial.”

Independent of the characterization of husband’s motion, it was properly denied.  A party may be granted a new trial for irregularity in the proceedings, misconduct of the prevailing party, accident or surprise, material evidence newly discovered, or errors of law. Minn. R. Civ. P. 59.01.  Husband claims he is entitled to a new trial because of newly discovered evidence and his attorney’s misconduct.

Husband characterizes his posttrial submissions as “newly discovered evidence.”  In support of his posttrial motion, husband submitted numerous affidavits (from his supervisor, a car salesperson, a realtor, a leasing agent, and an independent consulting actuary), credit card statements, and copies of his check registry.  Because husband could have presented this evidence at trial, the documents and affidavits do not establish a basis for a new trial.  See Minn. R. Civ. P. 59.01(d) (newly discovered evidence consists of material evidence “which with reasonable diligence could not have been found and produced at the trial”).

Husband also contends that the district court erred in denying his motion fora new trial based on attorney misconduct.  The decision to grant a new trial based on claimed attorney misconduct rests wholly within the district court’s discretion.  Johnson v. Washington County, 518 N.W.2d 594, 600 (Minn. 1994).  “The primary consideration in determining whether to grant a new trial is prejudice.”  Wild v. Rarig, 302 Minn. 419, 433, 234 N.W.2d 775, 786 (1975) (citation omitted).  The alleged misconduct concerns matters which are not contained in the record on appeal.  We are unable to review matters not in the record.  See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (stating appellate courts may not consider “matters outside the record on appeal, and may not consider matters not produced and received in evidence below”); see also Minn. R. Civ. App. P. 110.01 (defining record on appeal as “papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any”).

Husband urges that the district court should have amended its findings in light of his posttrial submissions, consisting of numerous documents and affidavits relating, among other things, to his anticipated decrease in income and the fair market value of the parties’ homestead.  A motion to amend findings, however, must be based upon the files, exhibits, and minutes of the court, not upon “newly discovered evidence” that is not a part of the record.  Minn. R. Civ. P. 52.02. The district court acted within its discretion in denying husband’s motion for amended findings or a new trial.

6.         Motion to compel discovery

Husband argues the district courterred by denying his posttrial motion to compel discovery.  On January 16, 2001, husband moved for an order to compel discovery of wife’s “financial documents and pay statements from October 1999 to present.”  The district court denied the motion, noting that the “action is no longer pending,” and that judgment had been entered on November 20, 2000.

Husband does not explain why the parties’ discovery disputes were not brought to the court’s attention before trial.  Because judgment was entered on November 20, 2000, the information husband requested was not relevant to any pending proceeding.  Therefore, the district court properly denied husband’s motion.  See Berge v. Commissioner of Pub. Safety, 588 N.W.2d 177, 179 (Minn. App. 1999) (noting that the district court has broad discretion in ruling on a discovery request, and will be reversed only if there is an abuse of that discretion).

7.        Motion for taking oral testimony

Posttrial, husband moved the court for permission to present the testimony of nine witnesses, including wife’s attorney, at the February 8, 2001 hearing.  The hearing was scheduled to address wife’s application for an order to show cause and husband’s amended findings or, alternatively, new-trial motion.

It is clear from the record that the district court ruled in a preliminary conference that husband would not be permitted to present testimony with respect to his rule 59motion, but he was permitted to do so with respect to the order to show cause portion of the hearing.  Husband intended on calling witnesses that could have been called at trial.  The district court did not err in denying husband’s motion for taking oral testimony.

Affirmed.

 



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

[1] Husband contends that the parties’ dog, purchased during the marriage, was not included in the parties’ property settlement.  However, the district court awarded each party “personal property now in their possession.”  Because the dog resided in the home awarded to wife, the dog was awarded to wife as her personal property.

[2] On appeal, husband contends that he purchased the Plymouth Laser before the parties’ marriage, and that the district court erred in awarding the vehicle to wife.  Despite this contention, when asked at trial who the vehicle should be awarded to, husband responded,“[s]he can have the car.”