This opinion will be unpublished and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

C9-01-2036

 

Lynn Marie Hoh,

Respondent,

 

vs.

 

George Hoh,

Appellant.

 

Filed June 18, 2002

Affirmed

Randall, Judge

 

Ramsey County District Court

File No. F5-00-916

 

George Hoh, 4219 Highland Drive, Shoreview, MN 55126 (pro se appellant)

 

James Whelpley, 2151 North Hamline Avenue, Suite 202, Roseville, MN 55113 (for respondent)

 

Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Foley, Judge.*

U N P U B L I S H E D O P I N I O N

R. A. RANDALL, Judge

George Hoh appeals arguing that the district court (a) incorrectly determined his net monthly income; (b) miscalculated the home's value; (c) misstated the encumbrance on the house; (d) awarded respondent sole custody of the children without support in the record; (e) made rulings which, in the aggregate, show that the district court favored mother because of her gender; and (f) imposed obligations on him that do not leave him enough money to meet his reasonable needs, in light of his health. We affirm.

FACTS

Appellant was served a Summons and Petition for dissolution on May 5, 2000. The district court, on October 4, 2000, issued a temporary order granting (a) respondent temporary custody and child support and (b) appellant temporary visitation and use of the marital home and personal property.

A trial was conducted in the district court on June 20, 2001. On October 26, 2001, the district court issued its findings of fact, conclusions of law, order for judgment and judgment and decree, which (a) awarded joint legal custody of the couple's two minor children to the parties; (b) awarded sole physical custody to respondent; (c) ordered respondent to pay $1,113 monthly child support; and (d) awarded the home to appellant with appellant pay to respondent $6,825 plus one-half the amount of the home's value exceeding $169,900 with seven percent per annum interest.

D E C I S I O N

The only questions for review where a motion for a new trial has not made "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, 288 (Minn. App. 1989). A district court's factual findings will be set aside only if they are clearly erroneous. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989)

1. Child Support

Appellant contends that the district court abused its discretion when it calculated the amount that appellant is to pay for child support. Specifically, appellant argues that his average take home pay is $2,989 per month and that his total yearly income will not exceed $51,000, not the $3,711 monthly net that the district court found. Based on a $3,711 net monthly income the district court ordered appellant to pay child support in the amount of $1,113 per month. The district court also increased appellant's child support obligations by 20 percent for arrearages.

The district court's determination is supported by both the record and Minn. Stat  518.551, which establishes child support guidelines. A district court's findings on net income for purposes of child support will be affirmed on appeal if those findings have a reasonable basis in fact and are not clearly erroneous. State, County of St. Louis, ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999). Child-support guidelines "are a rebuttable presumption and shall be used in all cases when establishing or modifying child support." Minn. Stat. 518.551, subd. 5(i) (2000). Under Minn. Stat.  518.551, a district court is to determine a specific child support dollar amount by multiplying the obligor's net income by a percentage listed in the statute. According to the guidelines, for two children and a net monthly income between $1,001 and $5,000 the percentage of appellant's income for child support is 30 percent. In this case, the district court found that appellant's monthly net income was $3,711 and his gross monthly income was $5,416.67. Based on that figure, the district court ordered appellant to pay respondent $1,113. This award is within the statutory guidelines.

Appellant's paycheck stub lists appellant's gross income as $2,500 and his net bi-weekly income as $1,712.93. Using 26 pay periods a year and dividing by 12 months produces a monthly net income of $3,761, which is greater than the district court's findings. The record includes a divorce worksheet, prepared by appellant on June 10, 2001, that lists his gross monthly income as $5,416.67.

We conclude the district court's findings and child support order have a reasonable basis in fact and the child support award was not clearly erroneous.

2. Marital Home Valuation

Appellant argues the district court erred in computing the value of the marital home and the award to respondent. Specifically, appellant argues that the district court should have included the costs of selling the house, such as seller's fees and closing costs when determining the value of the marital home. Appellant further argues that the value of the property should have been determined at the time respondent quit the family home. Appellant also argues that the district court should have enforced the parties' agreement and not considered an increase in market value of the residence.

A district court must value marital assets as of the date of the initially scheduled pre-hearing settlement conference, unless the parties agree on a different date or "the court makes specific findings that another date of valuation is fair and equitable." Minn. Stat 518.58, subd. 1 (2000); Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). Once marital assets have been valued, the district court has broad discretion in dividing those assets and, absent an abuse of discretion, its division must stand. Rutten v. Rutten, 347 N.W. 2d 47, 50-51 (Minn. 1984), see also Desrosier v. Desrosier, 551 N.W.2d 507, 510 (Minn. App. 1996) (reviewing district court's selection of valuation date under abuse-of-discretion standard).

The district court's amendment of the settlement agreement and the valuation of the home was fair and not an abuse of discretion. The parties originally agreed that the home's valuation was $169,000. After the agreement was made, respondent learned that a similar home in the neighborhood had recently sold for more than $200,000. The district court altered the original agreement and ordered appellant to pay respondent "$6,825 plus one-half of the amount, if any, by which a fee appraisal of the real estate exceeds $169,000." The district court's use of the words "if any" and the provision that the home's value would be determined by an appraisal is fair and equitable. The district court did not unilaterally and arbitrarily decide that the residence was worth more than the parties' original agreement, but instead provided for an independent determination of the valuation. Only if the real property is worth more than the price stated in the settlement agreement is appellant required to pay an increased dollar amount. Therefore, we conclude that the district court was within its discretion in altering the original property settlement and increasing the home's value.

We disagree with appellant's contention that the district court abused its discretion when it failed to include the potential costs of the selling the home. The parties' settlement agreement made no mention of including those potential costs. At no time did appellant sell the real property or consider selling the real property. See Flynn v. Flynn, 402 N.W.2d 111, 117 (Minn. App. 1987) (affirming deduction of estimated selling costs from homestead's equity when homestead was listed for sale at the time of the dissolution trial), review denied (Minn. Nov. 24, 1987). We find the district court's valuation of the home and division of the assets without the potential costs was well within its discretion.

3. Encumbrance of the Marital Home

Appellant argues that the district court erred when it determined that the encumbrance on the home is $135,000. Appellant further argues that the encumbrance on the home at the trial was $152,000. Respondent concedes that the correct valuation at the time of trial was $152,000 and that appellant was not harmed by the error. Respondent further contends that the $135,000 encumbrance determination reflects the parties' intention as evidenced in the parties' agreement.

We disagree with appellant's assertion that the district court abused its discretion when it determined the home's encumbrance. If district court made an error in the encumbrance it appears to be minimal and therefore should be upheld. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985)(refusing to remand for district court's de minimis error); see also Minn. R. Civ. P. 61 (harmless error disregarded). A district court must value marital assets as of the date of the initially scheduled pre-hearing settlement conference, unless the parties agree on a different date or "the court makes specific findings that another date of valuation is fair and equitable." Minn. Stat.  518.58, subd. 1 (2000). The district court has broad discretion in dividing property in a marriage dissolution, and the court's decision will not be disturbed on appeal unless there has been an abuse of that discretion. Rutten v. Rutten, 347 at 50. An abuse of discretion will be found only where the district court resolves the matter in a manner that is against logic and the facts on the record. Id. The valuation of an asset is a finding of fact, and an appellate court will reverse only if it is clearly erroneous on the record as a whole. Hertz, 304 at 145, 229 N.W.2d at 44 (1975).

At the time the parties made the settlement agreement, the encumbrance on the home was approximately $135,000. Appellant refinanced the house after the agreement and at the time of the trial the encumbrance was $152,000. The refinancing was to pay respondent her share in the home and appellant retained half of the refinancing proceeds. Under the agreement, respondent would receive $10,100 as her share of the home based on an evaluation of $169,000; however she received $3,275 in cash through the refinancing. The district court then awarded her a $6,825 lien on the home. The district court, in establishing the encumbrance at $135,000 and awarding respondent the lien, gave respondent the $10,100 she was due under the original settlement agreement. Additionally, if the district court accepted the encumbrance at $152,000, respondent would have received less than the amount she was due, because the refinancing included money appellant kept. We find the district court's evaluation of the residence was not an abuse of discretion.

4. Child Custody

A district court has broad discretion to provide for the custody of the parties' children. Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989); Rutten, 347 N.W.2d at 50 (Minn. 1984). Appellate court review of a custody determination 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).

Appellant argues the district court abused its discretion in awarding sole physical custody to respondent. Specifically, appellant argues that based on appellant's relationship with the children, his possession of the marital home, and his stability, it is in the best interest of the children to award joint physical custody.

The district court found that it was in the "best interests of the children" to award joint physical custody of the children but failed to enumerate the relevant factors. The district court must consider 13 different factors when making custody decisions and an additional four factors when joint physical or legal custody is sought. See Minn. Stat. 518.17, subd. 1(a) (listing factors that must be considered by district court when making custody decisions), subd. 2 (2000) (listing factors district court must consider when making joint custody decisions). Although these findings are not sufficiently specific findings of facts, there are sufficient facts on the record to support the district court's award of sole physical custody of the minor female children to respondent. See In re Welfare of C. Children, 348 N.W. 2d 94, 97 (Minn. App. 1984) (determining that although the district court's findings were not particularly specific, they were sufficient to afford the court a meaningful review when supplemented by the record).

One factor a court should consider is the intimacy of the relationship between each parent and the child. The record contains a Referee's Order for Custody/Visitation Evaluation that states that the respondent should be granted temporary physical custody because the eldest daughter is angry with the appellant. The referee also stated that the family would be receiving counseling for the eldest daughter and the father to "work on their relationship." An affidavit from respondent states that (a) respondent was primarily responsible for the children; (b) appellant has become less involved with the children over the past few years; (c) appellant has seldom taken the children for medical care and d) appellant attended few school functions. The record supports the district court's findings that it was in the children's best interests to award respondent sole physical custody.

5. Other Arguments

 

a. Retroactive child support

 

Appellant argues the district court's award of past-due child support is an abuse of discretion. Determinations of past due support are reviewed under an abuse-of-discretion standard. LaChapelle v. Mitten, 607 N.W.2d 151, 166 (Minn. App. 2000), review denied (Minn. May 16, 2000).

Appellant cites to the district court's ruling that established retroactive child support to October 1, 2000, thus placing appellant in arrears for $483.45 for October 1-15. The hearing for temporary relief was held on October 2, 2000, before the referee, thus placing appellant on notice that child support may be ordered. The order was signed on October 4, 2000. The district court found that the parties were separated on October 1, 2000. Minn. Stat. 256.87, subd. 5 (2000), allows the district court to apply retroactive child support for the two years immediately preceding the commencement of a child-support action. Given that the parties' separation and the hearing date were so close in time, the district court did not abuse its discretion in applying the child-support amount retroactively.

b. Child Support Reduction

Appellant asserts that his child-support obligation should be reduced because respondent does not financially need the child support because of her and a child's income. Appellant also argues that because of the relative earning capacity of the respondent's household the arrearages should be reduced.

Appellant's argument that the district court erred when it did not include respondent's and a child's income is without merit. Child support guidelines "are a rebuttable presumption and shall be used in all cases when establishing or modifying child support." Minn. Stat. 518.551, subd. 5(i) (2000). Although the court may take into consideration both parties' incomes, it is not required. See Minn. Stat. 518.551, subd. 5(i) (2000) (stating that if the court does not deviate from the guidelines, the court is only required to make written findings concerning the amount of the obligor's income, along with any other evidentiary factors affecting the determination). The district court was within its discretion to rely on the child support guidelines and not consider respondent's income.

c. Relief

Appellant argues that the district court's judgment is excessive and requests total relief of child support, revaluation of the district court's determination of the home's valuation and the award to respondent and to be paid when the house is sold. Because appellant's arguments have been sufficiently addressed in the previous arguments we need not separately address this issue.

Affirmed.



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