This opinion will be unpublished and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:

Patricia A. Thomason, petitioner,





James A. Thomason,



Filed June 18, 2002

Affirmed in part, reversed in part, and remanded

Poritsky, Judge*



Ramsey County District Court

File No. F600987



John J. Todd (of counsel), Orme & Associates, Ltd., 3140 Neil Armstrong Blvd., #203, Eagan, MN 55121 (for appellant)



Joyce L. Cundy, Cundy & Paul, L.L.C., 5001 West 80th Street, Suite 1010, Bloomington, MN 55437 (for respondent)



            Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N


In this dissolution, appellant-wife Patricia Thomason argues that the district court erred by awarding respondent-husband James Thomason a marital interest in the homestead after he (1) quitclaimed his interest in the property to wife via a straw transaction and therefore waived any interest he had in the property; and (2) abandoned wife, allowing her to terminate husband’s inchoate interest in the homestead under Minn. Stat. § 519.07 (2000).  Wife also argues that the district court abused its discretion by failing to properly credit wife with substantial payments she made on the parties’ property after husband abandoned her and quitclaimed his interest in the property.  We affirm in part, reverse in part, and remand.



            The parties were married on September 23, 1967.  They separated for approximately two years between 1995 and 1997 and have been separated since June 1, 1999.  In the fall of 1993, a bank began mortgage-foreclosure proceedings on the parties’ homestead.  With a loan from her aunt, wife redeemed the property.  In 1996, husband quitclaimed his share of the property to his daughter who then quitclaimed it to wife.  At trial, wife alleged that husband abandoned the homestead.  Wife also sought to have any interest husband had in the property diminished by a credit for her contributions paid to the IRS, bankruptcy court, and mortgagees.  The district court denied wife a contribution credit and granted husband a $24,327.54 lien on the homestead.  Without making a motion for a new trial, wife filed a notice of appeal. 



            On appeal from a judgment where there has been no motion for new trial, the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.


Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989) (citation omitted). 

District courts have broad discretion over the division of marital property, and we will not disturb the division on appeal absent a clear abuse of discretion.


Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000) (citation omitted), review denied (Minn. Oct. 25, 2000).  For this court to conclude the district court abused its discretion, the district court’s fact findings must be “against logic and the facts on [the] record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).


            Wife contends that husband waived any interest he had in the homestead when he signed a quitclaim deed to his daughter, who then quitclaimed it to wife.  We disagree. 

The district court found that wife and husband “are the owners of, or have an interest in, their homestead[.]”  It is undisputed that husband’s daughter offered nothing in return for the quitclaim deed.  Thus, the transfer must be a gift, and it is only valid as a gift if husband had donative intent to go along with the delivery and disposition of the property.  See McCulloch v. McCulloch, 435 N.W.2d 564, 568 (Minn. App. 1989).  Husband testified that he signed the quitclaim deed with the understanding that it would lead to a reconciliation with wife.  Husband also testified that it was “[a]bsolutely not” his intent to eliminate any interest he had in the homestead.  Thus, the record supports the district court’s implicit determination that husband lacked donative intent and therefore the deed was  ineffective.

            Wife further contends that the quitclaim deed acted as a waiver of his right to the homestead.  While waiver does not require consideration, it does require intent.  See Preferred Fin. Corp. v. Quality Homes, Inc., 439 N.W.2d 741, 743 (Minn. App. 1989) (stating “[t]he key to a valid claim of waiver is the intent of the party to be charged”) (quotation omitted)).  As we have noted, husband testified it was not his intent to relinquish his right to the property.  Thus, the record also supports the trial court’s implicit determination that husband lacked the requisite intent to waive his right to the property.

Wife also contends that husband abandoned the property, and under Minn. Stat.     § 519.07 (2000), she should have been awarded sole ownership of the homestead.  But husband’s testimony establishes that wife asked him to leave each time he left.  Minn. Stat. § 519.07 states that the court may grant the petition to bar the inchoate interest of that person’s spouse upon clear and convincing evidence “that the person has been deserted by the spouse for a period of at least one year, or that other similar circumstances warrant.”  The trial court evidently credited husband’s testimony that he left wife at wife’s request; thus it was  proper for the court to determine  that  wife does not qualify as “deserted” by her spouse. 

We conclude that the evidence supports the district court’s finding that both wife and husband owned the property.


Wife contends that she should be granted a credit for half of the $49,218.17 she paid for expenses associated with the homestead during the time she and respondent were separated.  She argues that it is “totally ‘unjust and inequitable’” to grant husband a lien on the property when husband’s share of the payments she made ($49,218.17 ¸ 2 = $24,609.09) is higher than the lien of $24,327.54 granted by the court.  The district court denied wife’s contribution claims. 

At trial, the court received wife’s exhibits I through V, in which wife sets out various payments for which she claims she should be given credit. Husband does not contest either the fact that payments were made or the amounts set out in wife’s exhibits.  We start our analysis using wife’s exhibits.

Initially, we note that wife overstated the amount she paid on the mortgage.   On wife’s Exhibit I, wife’s house payments total $40,349.93 rather than $43,978.74, as she claimed.  (Apparently she added in $3,628.24 – the amount of 1992 payments to Twin City Federal – twice.)  Nonetheless, those payments that she did make grant her a credit against husband.  Minn. Stat. § 518.58, subd. 1 (2000), states that in dividing marital property, “[t]he court shall also consider the contribution of each [spouse] in the * * * preservation * * * of the marital property.”  Because wife’s mortgage payments preserved the homestead, which also benefited husband, these payments should be considered and credited against husband’s lien on the homestead.

Wife also claims a credit of $5,240 for bankruptcy payments.  Contribution is

a payment made by each, or by any, of several having a common interest of liability of his share in the loss suffered, or in the money necessarily paid by one of the parties in behalf of the others.


Senn v. Youngstedt, 589 N.W.2d 314, 315 (Minn. App. 1999) (quotation omitted), review denied (Minn. May 18, 1999).  Contribution is the remedy securing a person’s right to recover from another who is also liable when the first person has discharged more than his fair share of a common liability or burden.  Id. at 315-16.  Because husband and wife were both liable for the bankruptcy debt, wife has a valid contribution claim against husband for this debt.

In Exhibit IV, wife claims a credit for money paid and due to the IRS.  But the district court already took this money into account and reduced husband’s lien on the property for half of the amount of the IRS debt.  Wife also claims a $900 credit from a May 1, 1996, order, but this $900 amount is unsubstantiated by the record. 

            In light of wife’s mortgage payments of $40,349.93 and bankruptcy payments of $5,240, which total $45,589.93, we conclude that wife should receive a credit equal to husband’s share of this amount, that is, $22,794.97.  Husband’s lien on the property for $24,327.54 should be reduced by $22,794.97 to $1,532.57.  Because the district court abused its discretion by failing to credit wife for payments made in the preservation of the homestead and for payments she made in connection with the parties’ bankruptcy, we reverse its decision on that matter and remand with directions to reduce husband’s lien on the property to $1,532.57. 

            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.