This opinion will be unpublished and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

C3-01-1769

 

In re the Marriage of:
Susan St. Cyr Fixsen,
petitioner,
Respondent,

vs.

Fred William Fixsen,
Appellant.

 

Filed May 14, 2002

Affirmed

Peterson, Judge

 

Anoka County District Court

File No. F1995426

 

Ronald D. Ousky, Southgate Office Plaza, Suite 935, 5001 West 80th Street, Bloomington, MN  55437 (for respondent)

 

Ronald Resnik, 6200 Shingle Creek Parkway, Suite 340, Brooklyn Center, MN  55430 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Foley, Judge.*


U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a dissolution judgment, appellant Fred William Fixsen argues that the evidence does not support the district court’s findings of fact and conclusions of law regarding his nonmarital-property claims.  Appellant also argues that the district court erred in determining his income for purposes of awarding child support and in awarding respondent Susan St. Cyr Fixsen attorney fees.  We affirm.

FACTS

On October 1, 1985, appellant and Edward Stein purchased land at 8878 Zealand Avenue North (commercial property).  In November 1985, appellant and Stein entered into a contract to have a building built on the commercial property.  Appellant operated an auto-body business, Rapier Service Corporation, in the building.  Because appellant had accumulated substantial tax liabilities, in January 1990, he transferred his interest in the commercial property to Edward Stein by quitclaim deed.  Appellant continued to operate the business at the property and paid rent to Stein.

Appellant married respondent on May 14, 1994.  On November 10, 1995, appellant entered into a purchase agreement with Edward and Annette Stein to repurchase his interest in the commercial property.  In October 1997, the Steins conveyed their one-half interest in the commercial property to appellant and respondent.

In November 1997, appellant suffered a stroke.  As a result, appellant could no longer operate the auto-body business, and the business was sold to Reno Industries for $115,000.  $50,000 was received as a down payment, and the remaining $65,000 was to be paid in $1,349.29 monthly payments.  Reno Industries also agreed to pay $4,400.23 per month to rent the commercial property. 

In January 2000, appellant entered into an option agreement to sell the commercial property.  Appellant received $20,000 for the option, which was to be exercised by December 1, 2001, at a purchase price of $260,000.

D E C I S I O N

1.         Appellant argues that the district court erred in determining that the commercial property is marital property.  “Whether property is marital or nonmarital is a question of law, but a reviewing court must defer to the trial court’s underlying findings of fact.”  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997) (citation omitted).

      “Marital property” means property, real or personal * * * acquired by the parties, or either of them, to a dissolution * * * proceeding at any time during the existence of the marriage relation between them * * * .  All property acquired by either spouse subsequent to the marriage and before the valuation date is presumed to be marital property regardless of whether title is held individually or by the spouses in a form of coownership[.] * * *  The presumption of marital property is overcome by a showing that the property is nonmarital property.

 

      “Nonmarital property” means property real or personal, acquired by either spouse before, during, or after the existence of their marriage, which

      (a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;

      (b) is acquired before the marriage;

      (c) is acquired in exchange for or is the increase in value of property which is described in clauses (a), (b), (d), and (e);

      (d) is acquired by a spouse after the valuation date; or

      (e) is excluded by a valid antenuptial contract.

 

Minn. Stat. § 518.54, subd. 5 (2000). 

Although appellant owned an interest in the commercial property before the marriage, he sold that interest before the marriage and repurchased it during the marriage.  The Steins’ interest in the property was also conveyed to appellant and respondent during the marriage.  There is no evidence that any interest in the property that appellant acquired during the marriage was acquired as a gift, bequest, devise, or inheritance or in exchange for appellant’s nonmarital property.  The district court did not err in finding that the commercial property is marital property.

Appellant also argues that the district court erred in determining that $48,000 invested in a bond account is marital property.  The district court found that $20,000 of this amount was the money that appellant received for the option to buy the commercial property.  Appellant does not dispute that the option was the source of the $20,000, but he argues that because the commercial property is not marital property, the money received for the option to buy the commercial property is not marital property.  However, as we have already discussed, the commercial property is marital property.  Therefore, the money received for the option to buy the property was not received in exchange for nonmarital property, and appellant did not overcome the presumption that the money received during the marriage is marital property.

Appellant contends that the remaining $28,000 in the bond fund is nonmarital property because it is money that he received when he sold his nonmarital interest in Rapier Service Corporation.  The district court found that appellant did not present evidence to meet his burden of tracing the $28,000 to a nonmarital source. 

The party claiming that current assets are traceable to nonmarital property has the burden of proof.  Coffel v. Coffel, 400 N.W.2d 371, 374 (Minn. App. 1987).  Because appellant has not cited any evidence that traces the $28,000 in the bond fund to the proceeds from the sale of his interest in Rapier Service Corporation, he has not shown that the district court erred when it concluded that appellant failed to meet his burden of proof.

2.         Appellant argues that the district court abused its discretion by dividing the marital property equally.  Appellant contends that because he “can never expect to regain gainful and/or full-time employment,” but respondent can, the equal division of marital property is not fair and equitable. 

The district court’s distribution of marital property will not be reversed absent an abuse of discretion.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000) (citation omitted), review denied (Minn. Oct. 25, 2000).  Marital property must be divided equitably.  Minn. Stat. § 518.58, subd. 1 (2000); see also Crosby v. Crosby, 587 N.W.2d 292, 297 (Minn. App. 1998) (equitable division of marital property is not necessarily a mathematically equal division), review denied (Minn. Feb. 18, 1999). 

The division of marital property shall be based

on all relevant factors including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party.

 

Minn. Stat. § 518.58, subd. 1.

            Appellant contends that the district court ignored his poor health and limited employability when it divided the marital estate.  We disagree.  After observing appellant’s physical challenges in court, the district court found that appellant’s “employment options are significantly limited and it does not appear likely that he will be self supporting in the future.”  But the fact that appellant is disabled does not, by itself, demonstrate that the district court abused its discretion when it divided the marital estate equally.

The district court’s findings indicate that although appellant is disabled, his gross monthly income from employment and social security is $1,767, which is almost equal to respondent’s $1,790.53 gross monthly income from employment.  Also, like appellant, respondent has limited employment prospects because she has limited vocational skills.  Respondent was enrolled in a practical-nursing program, but she left the program due to the emotional and financial constraints arising from the dissolution.  The district court findings do not indicate that respondent has any health problems, but respondent’s good health has not given her a greater income than appellant.

Under the judgment, neither party will have substantial assets, and they will have comparable living standards.  The district court did not abuse its discretion by dividing the marital property equally.

3.         Appellant argues that the district court clearly erred in finding that he earns $758 monthly working for his brother.  “Findings on net income will be affirmed on appeal if those findings have a reasonable basis in fact and are not clearly erroneous.”  State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999) (citation omitted). 

Appellant’s brother, Gerald William Fixsen, testified in a deposition that he paid appellant “150, 200 bucks a week.”  This testimony is a reasonable basis for the district court finding that appellant earns $758 per month working for his brother.  The finding is not clearly erroneous.

4.         Appellant argues that the district court abused its discretion in ordering him to pay $3,000 of respondent’s attorney fees because the court made no finding that he has the ability to pay the fees or that he unduly contributed to the length of the proceedings.

An award of attorney fees rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.  A trial court shall award attorney fees when it finds that an award is necessary for a party to assert his or her rights in an action, that the payor has the financial means to pay the fees, and that the payee lacks the means to pay the fees.

 

Crosby, 587 N.W.2d at 298 (quotation and citation omitted).  The district court did not find that appellant has the financial means to pay respondent’s attorney fees or that respondent lacks the means to pay the fees.  But under Minn. Stat. 518.14, subd. 1 (2000), a district court may award attorney fees “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.

 

Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001) (citations omitted).

            In its findings of fact, the district court stated:

[Respondent] has requested an award of attorney’s fees on the grounds that many of the fees she incurred can be attributed to [appellant’s] multiple filings, requests for continuances, and a substitution of attorneys late in these proceedings.  It is fair and reasonable to grant [respondent] a partial award of attorney’s fees for her fees and costs incurred to this date.

 

This is not a true finding that appellant unreasonably contributed to the length or expense of the proceeding.  See Dean v. Pelton, 437 N.W.2d 762 (Minn. App. 1989) (district court’s recitation of parties’ claims “is not making true findings but merely reciting the parties’ claims”).  But our review of the record persuades us that although the district court recited respondent’s claim, rather than stating a finding of fact, the district court did conclude that respondent’s claim was accurate.  Cf. Minn. R. Civ. P. 61 (requiring harmless error to be ignored).  Appellant filed multiple motions; did not comply with court orders, which lead to further motions to compel; and substituted attorneys a week before the case was set for trial.  Because this conduct contributed to the length and expense of the proceeding, the district court did not abuse its discretion by awarding attorney fees.

Affirmed.



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