This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







In the Matter of Cheryl Ranae Heimsness,






Daniel James Heimsness,



Filed May 7, 2002

Affirmed in part, reversed in part, and remanded

Poritsky, Judge*



Freeborn County District Court
File No. F4991050


Craig M. Byram, Hoversten, Johnson, Beckman & Hovey, LLP, 807 West Oakland Avenue, Austin, MN  55912 (for respondent)


Matthew L. Benda, Peterson, Savelkoul, Schlichting & Davies, Ltd., 211 South Newton, Albert Lea, MN  56007 (for appellant)


            Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Porisky, Judge.


U N P U B L I S H E D   O P I N I O N


            In this dissolution action, appellant-husband alleges (a) neither the record nor the law supports awarding respondent-wife sole legal custody; (b) the district court’s finding that wife was the sole contributor to wife’s retirement account does not justify awarding her that entire account; (c) the district court’s division of the parties’ marital property is defective because it omits and/or double counts certain property; and (d) the record does not support the district court’s award to wife of conduct-based attorney fees.[1]  We affirm in part, reverse in part, and remand.  


            Appellant Daniel Heimsness and respondent Cheryl Heimsness were married in 1983.  Their only child, L.H., was born in 1995.  During the marriage, Mr. Heimsness worked at a dairy and as a limousine driver; Ms. Heimsness worked for ten years for Hormel Foods. 

            In 1998, Mr. Heimsness was involved in a car accident in which he rear-ended a bus and sustained significant permanent injuries.  The Social Security Administration administrative law judge (ALJ) subsequently determined that he qualified for Social Security disability benefits because of a mild traumatic brain injury, an affective disorder manifested by mood disturbance, and a personality disorder.  The ALJ found that he had demonstrated behavioral flare-ups over minor incidents, which had resulted in physical abuse of his wife. 

            At the time the parties first separated in early 1999, they jointly owned two houses, one in Albert Lea and one in Hayward, Wisconsin.  When the parties separated, Mr. Heimsness rented an apartment and furnished it on credit.  He returned to live with the family in Hayward in late July 1999, but in early August, Ms. Heimsness moved to her parents’ house, taking L. H. with her, and obtained an order for protection against Mr. Heimsness.  Ms. Heimsness returned to the Hayward home after the court granted her exclusive use and possession of it.  Mr. Heimsness moved to the parties’ other home in Albert Lea.  The court granted Ms. Heimsness temporary custody of L.H., with supervised visitation to Mr. Heimsness, and appointed a guardian ad litem to make recommendations as to custody and visitation.   

            The parties were divorced on March 21, 2000.  In the final judgment and decree, dated January 12, 2001, the court awarded Ms. Heimsness sole legal and physical custody of L.H.  The court found that the parties had stipulated to custody, and the court also found that the parties were unable to communicate because of Mr. Heimsness’s extreme volatility, which manifested itself as extreme anger toward his wife.  The court ordered that supervised visitation be continued, citing the recommendations of Freeborn County Court Services and Lutheran Social Services. 

            The district court further found that during the parties’ separation, while Mr. Heimsness was receiving Social Security disability payments, he incurred debt on the parties’ Citibank Visa card and, without Ms. Heimsness’s knowledge, took out a home- equity line of credit on the Albert Lea home.  The court concluded that these debts were not marital debt and therefore should be allocated to Mr. Heimsness.  The court also found that Ms. Heimsness had contributed to a tax-deferred benefit plan and joint-earnings profit-sharing trust and that Mr. Heimsness did not contribute to them; the court awarded both of these accounts to her.  Likewise, the court awarded Ms. Heimsness two accounts in her name at the Hormel Employees Credit Union as of August 26, 1999. 

Finally, on the issue of fees, the court took note of Mr. Heimsness’s anger toward his wife, which had resulted in criminal sanctions against him and prolonged the proceedings, and his failure to disclose all of his debts.  The court found that these actions had resulted in Ms. Heimsness incurring unnecessary expenses, including attorney fees. The court therefore awarded her attorney fees of $13,000.  This appeal followed. 



A district court’s findings of fact that form the basis of a custody determination will not be set aside on appeal unless they are clearly erroneous.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  A finding is clearly erroneous if it is manifestly contrary to the weight of the evidence, or if it is not reasonably supported by the evidence as a whole.  Tonka Tours, Inc. v.  Chadima, 372 N.W.2d 723, 726 (Minn. 1985). 

Mr. Heimsness challenges the district court’s determination awarding Ms. Heimsness sole legal custody of L.H., arguing that the district court failed to make specific findings on the best-interests factors.  Custody determinations are based on the best interests of the child.  Minn. Stat. § 518.17, subd. 3(a)(3) (2000).  In determining the best interests of the child, the district court must make detailed findings on relevant statutory factors and explain how the factors led to its best-interests determination.  Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).  But “the court shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse has occurred * * * between the parents.”  Minn. Stat. § 518.17, subd. 2 (2000) (emphasis added).

In this case, Ms. Heimsness had obtained an order for protection against Mr. Heimsness on the basis of his physical abuse of her.  Therefore, there was a rebuttable presumption that joint legal custody was not in the child’s best interests.  Mr. Heimsness failed to rebut this presumption.  In fact, he was under court-ordered restricted visitation because of his volatility and anger towards his wife.[2]  See Digatono v. Digatono, 414 N.W.2d 498, 502 (Minn. App. 1987) (holding that denial of joint legal custody was supported by evidence of parties’ demonstrated inability to cooperate), review denied (Minn. Jan. 15, 1988).

In addition, the district court found that the parties had originally stipulated that Ms. Heimsness have physical custody of L.H.  Courts favor stipulations in dissolution proceedings.  Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997).  Finally, we note that the court is not required to make a specific finding on each and every statutory best-interests factor.  Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993).  Rather,

[i]t is sufficient if the findings as a whole reflect that the trial court has taken the statutory factors into consideration, in so far as they are relevant, in reaching its decision.

Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 172 (1976).  In this case, although the court did not specifically enumerate all of the best-interests factors, it appears that the court did, in substance, consider them.  We therefore hold that the district court’s findings on the issue of custody were not in error.

Property division

            In connection with the issue of property division, Mr. Heimsness makes two claims: (1) the district court erred when it awarded Ms. Heimsness the entire interest in her retirement accounts, and (2) the district court abused its discretion in its allocation of the parties’ other property and debts. 

This court will affirm a district court’s property division unless it concludes that the district court has abused its discretion and reached a clearly erroneous conclusion that is against logic and the facts on the record.  Rutten v. Rutten, 347 N.W. 2d 47, 50 (Minn. 1984).  If the district court’s determination has an acceptable basis in fact and principle, the determination must be affirmed, even if this court may have taken a different approach.  Jensen v. Jensen, 409 N.W.2d 60, 62 (Minn. App.1987).  

The court is to make a “just and equitable division of the marital property of the parties without regard to marital misconduct.”  Minn. Stat. § 518.58 (2000).  “However, the property division need not be mathematically equal to be just and equitable.”  Justis v. Justis, 384 N.W. 2d 885, 888 (Minn. App. 1986) (citation omitted), review denied  (Minn. May 29, 1986). 

As to Ms. Heimsness’s retirement accounts, Mr. Heimsness argues that the retirement accounts were marital property and that Minn. Stat. § 518.58 dictates a conclusive presumption that both parties made a substantial contribution to the acquisition of income and property while they were living together.

Under Minn. Stat. § 518.54, subd. 5 (2000), “[a]ll property acquired by either spouse subsequent to the marriage and before the valuation date is presumed to be marital property.”  Because these retirement accounts were acquired during the marriage, they are marital property.  To the extent that the district court may have intimated that they were nonmarital property, such a designation would have been erroneous.  It would have been, however, harmless error.  See Minn. R. Civ. P. 61 (harmless error to be ignored).  In making the allocation of personal property, the court may take into account not only the acquisition of marital property, but also its preservation.  In Letsch v. Letsch, 409 N.W. 2d 239 (Minn. App. 1987), the district court awarded the wife a substantially greater portion of the parties’ assets, including her IRA and PERA retirement.  In upholding the trial court, this court said:

In awarding the homestead, the trial court found that [the wife] had sought to maintain the homestead in good condition, but that [the husband] had significantly contributed to the poor physical condition of the homestead.  The court further found that [the husband] did not make any meaningful contribution to the payment of family expenses.  In awarding [the wife] the securities, her IRA and PERA retirement, the court found that these investments were acquired, preserved and appreciated exclusively as a result of [the wife’s] efforts.


Id. at 240.  This court also noted that the husband damaged the homestead.  Id. at 241-42.

Here, the district court found that since the parties’ separation, Mr. Heimsness had, without the consent of his wife, incurred additional debt on the Albert Lea property and more than $13,000 of credit-card debt.  The record also reflected that he cashed in his daughter’s savings bonds and damaged the parties’ Hayward home.  Under these circumstances, it was part of a just and equitable division, and not an abuse of discretion, for the district court to award Ms. Heimsness the entire interest in her pension and retirement accounts. 

We apply a similar analysis to the parties’ debts.  The allocation of marital debt is treated as a property division, reviewable under an abuse of discretion standard.  Berenberg v. Berenberg, 474 N.W.2d 843, 848 (Minn. App. 1991), review denied  (Minn. Nov. 13, 1991).  Mr. Heimsness contends that the district court abused its discretion by not offsetting its award of debt with the property he acquired in exchange for that debt. But even if the debts are considered marital, the district court maintains discretion to allocate debts solely to one party.  See Meyer v. Meyer, 375  N.W.2d 820, 824, 828 (Minn. App. 1985) (district court did not abuse discretion in allocating all of the parties’ debts, including marital debts, to one party), review denied (Minn. Dec. 30, 1985).  Further, “a party to a dissolution may be held liable for marital debts even though the other party receives the benefit of payment.”  Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984).  The district court did not abuse its discretion by apportioning his debt solely to him without a corresponding offset of property.

Nor will we disturb the district court’s findings concerning Ms. Heimsness’s bank accounts, tax refunds, and tax rebates.  The district court need not be exact in the valuation of assets in a divorce.  Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979).  Even assuming the validity of Mr. Heimsness’s claim that the district court should have included the value of Ms. Heimsness’s new account at the Hormel Employees Credit Union, rather than the value of her old account, the difference in value is minimal and does not warrant a remand.  See Duffney v. Duffney, 625 N.W.2d 839, 843 (Minn. App. 2001) (possibly erroneous exclusion of a de minimis amount of income does not warrant remand).  The district court also did not err by failing to include as marital property the tax rebates and refunds that Ms. Heimsness received.  The tax rebate had been previously deposited in her bank account and was counted in the property division.  The tax refunds reflected overwitholding from her paycheck when she filed as head of household after the separation.  These funds no longer existed as of the date of trial, but the record does not show that they were dissipated.  See Griepp v. Griepp, 381 N.W.2d 865, 869 (Minn. App. 1986) (holding that one party’s use of tax refunds for living expenses did not constitute dissipation of marital assets).

Attorney fees

Finally, Mr. Heimsness challenges the district court’s award of $13,000 in conduct-based attorney fees to his wife.  In a family-law proceeding, the court may in its discretion award “additional fees, costs, and disbursements against a party who unreasonably contributes to the length of the proceeding.”  Minn. Stat. § 518.14, subd. 1 (2000) (emphasis added). [3]  “[B]ehavior occurring outside the litigation process is not a basis for a conduct-based fee award under [Minn. Stat. § 518.14].”  Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn. App. 2001).  In this connection, we interpret the phrase “litigation process” to mean the current dissolution proceeding.

Here, the district court found that Ms. Heimsness incurred attorney fees due to Mr. Heimsness’s conduct, some of which was conduct within the litigation process (failure to respond fully to discovery requests) and some that occurred in other proceedings, including a criminal charge and an OFP proceeding.  But in making its award, the court  did not differentiate between Ms. Heimsness’s fees that were incurred because of Mr. Heimsness’s conduct within the litigation and the fees incurred due to his other conduct.   As the court found that Mr. Heimsness’s conduct is a basis for awarding Ms. Heimsness attorney fees, we conclude that she should not be denied an award because the trial court did not make the differentiation as noted above.  Accordingly, we remand for the trial court to take further proceedings and enter such orders as are warranted concerning what attorney fees Ms. Heimsness is entitled to due to Mr. Heimsness’s conduct within the present dissolution action.

Affirmed in part, reversed in part, and remanded.

*   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]  Mr. Heimsness initially appealed certain rulings of the district court concerning visitation issues.  When this court questioned whether those issues were appealable, Mr. Heimsness voluntarily dismissed that part of his appeal.  As a result, although the parties have briefed the issues concerning visitation, those issues are not before the court on this appeal.


[2] As we have noted, Mr. Heimsness dismissed his appeal from the visitation restrictions.


[3] This court has not yet ruled on the issue of whether conduct-based attorney fees are precluded when there is no companion determination to award need-based fees.  See Mize v. Kendall, 621 N.W.2d 804, 807 n.3 (Minn. App. 2001), review denied (Minn. Mar. 27, 2001).  Because the parties have failed to raise this issue, we decline to consider it here.