This opinion will be unpublished and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:

Deborah Ann Elmore, petitioner,





Bradley LeRoy Elmore,




Filed January 22, 2002


Mulally, Judge*



Hennepin County District Court

File No. 248524



Allen C. Lindholm, 333 North Washington Avenue, Suite 335, Minneapolis, MN 55401 (for appellant)



Ann Morrice Allenson, Goldstein Law Office, P.A., 601 Carlson Parkway, Suite 1050, Minnetonka, MN 55305 (for respondent)



            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N


            In this dissolution appeal, appellant Deborah Elmore alleges (a) the record does not support the trial court’s award of joint physical custody of the parties’ child, the award to respondent Bradley Elmore of a non-marital interest in the home, or the division of the parties’ vehicles; (b) the trial court undervalued the parties’ home; and (c) she was entitled to a new trial because of respondent’s failure to provide information regarding a vehicle.  Because the trial court made no error in its consideration of the legal and factual issues, we affirm.



1.         Custody


            Appellant argues that the custody findings are inconsistent and the decision to award joint physical custody of their son is unsupported by the evidence.

            A trial court has broad discretion to provide for the custody of the parties’ children.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  This court’s review of the district court’s decision is limited to whether 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).  The findings will be sustained unless they are clearly erroneous.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

            In awarding custody, the court must make findings on all of the best-interests factors.  Minn. Stat. § 518.17, subd. 1 (2000).  The 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.  Id., subd. 2.  When joint physical custody is requested over a party’s objection, a joint custody determination must be accompanied by findings specifically addressing joint custody. Id.

            Here, the court’s findings were based on the parties’ testimony and a custody evaluation.  The court’s findings at the time of the initial order were explained again when it reconsidered the custody issue on appellant’s motion for amended findings.   The findings indicate that the parties effectively and successfully had had joint physical custody of their child since the July 1999 temporary order.  Respondent’s requested modification made reasonable and minor changes, allowing for a smoother transition from daycare to respondent’s home and for an undisturbed normal naptime on Sunday afternoons on respondent’s weekends.   The evaluator found no compelling reason to expand the father’s weekend time, but also did not state reasons prohibiting it.  The evaluator also found neither party the primary caretaker.  Both parties demonstrated love and affection toward their son.  Both parties relied on older stepsiblings as babysitters and both had mutual complaints about the other’s language and yelling in front of the child.  During the marriage, the parties had shared parenting responsibilities and both parties agreed that they should continue joint legal custody.  The child’s daycare worker noted the child handled transitions with his parents well and appeared well cared for.

            The court made the requisite best interests findings and the joint custody findings.  The evidence supports those findings.  While the court’s award of joint physical custody does not follow the evaluator’s recommendation that mother be awarded physical custody, a trial court may refuse to accept the recommendation on custody if its findings reflect conscientious and thorough consideration of the child’s best interests.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  The court made such findings and made no error. 

 2.        Homestead Valuation

              Appellant argues the trial court erred in its valuation of the homestead and in allowing the nonmarital interest claimed by respondent.

            The valuation date for property division is generally the day of the initially scheduled prehearing conference.  Minn. Stat. § 518.58, subd. 1 (2000).  The court may adjust the value, however, if, after the valuation date, there is a substantial change in value and adjustment is “necessary to effect an equitable distribution.”  Id.

            The parties provided neither appraisals nor expert testimony on the value of the homestead. Respondent testified that appellant would not allow access to the home for an appraisal.  Both parties offered conflicting evidence of the home’s fair market value.  In light of the proffered evidence, the court properly determined that an adjustment was reasonable.  Therefore, the court did not abuse its discretion.

            Appellant also contends the court erred by allowing the nonmarital interest claimed by respondent on the homestead.  The parties testified to their recollections of nonmarital contributions to the down payment on the homestead.  The court found both parties credible.  Appellant’s simple denial that respondent contributed to the down payment alone does not indicate the court abused its discretion.  Deference must be given to the opportunity of the trial court to assess the credibility of the witnesses.   Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). 

3.         Automobiles

            Appellant claims that the court erroneously found that the parties agreed to the award of the 1993 Grand Am to respondent when they had not agreed to it.  When this error was brought to the trial court’s attention on the motion for amended findings, the court deleted the “agreed to” language.   Appellant also claims that the court awarded her a Caprice automobile that she did not own.

            In a marital dissolution, the trial court must make a “just and equitable” division of the parties’ marital property.  Minn. Stat. § 518.58, subd. 1 (2000).  This court will not reverse the division absent an abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 296 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  Due to the vague and conflicting evidence regarding the ownership of the Caprice and marital and nonmarital interests in both vehicles, the court did not clearly err in finding that the Caprice was appellant’s and that the division of the vehicles was fair and equitable.

4.         Fraud

            Appellant argues that the whole property division is suspect because the respondent fraudulently concealed that he owned another pick up truck at the time of trial.  The trial court was entitled to find respondent’s explanation credible and deny appellant’s motion for a new trial based on fraud on the court.  The trial court also correctly found that the “asset was acquired subsequent to the parties’ separation and date of valuation * * * and it did not result in a division of property that was unfair.”   This clearly was not an abuse of discretion.


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