This opinion will be unpublished and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
In the Matter of:
Brenda M. Beckerleg, petitioner,
Thomas G. Beckerleg,
Filed June 25, 2002
Hubbard County District Court
File No. F900365
John E. Valen, Fifth & Michigan, P.O. Box 1105, Walker, MN 56484 (for respondent)
George L. Duranske, III, 1435 Anne Street Northwest, P.O. Box 1383, Bemidji, MN 56619-1383 (for appellant)
Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant challenges the judgment regarding issues reserved when the parties dissolved their marriage. He argues that the district court abused its discretion by (1) inequitably dividing the parties’ property; (2) awarding respondent sole physical custody of the parties’ children; and (3) calculating child support without considering the amount of time that each party spends with the children. Because the district court did not abuse its discretion, we affirm the property and child-support awards. But because the district court’s findings are not sufficient for effective appellate review of its child-custody award, we remand that issue.
Appellant Thomas G. Beckerleg and respondent Brenda M. Beckerleg were married in 1987. The marriage produced two children. In May 2000, respondent filed a petition with the district court for dissolution of the marriage, seeking sole legal and physical custody of the children, subject to reasonable visitation rights; appellant sought joint legal and physical custody. The district court appointed a guardian ad litem for the children. In August 2000, the district court entered judgment dissolving the marriage and reserving all other issues for trial.
After a trial on the reserved issues, the district court entered judgment (1) dividing the parties’ marital property, including marital debt, between them, (2) awarding the parties joint legal custody and respondent sole physical custody of their children based on the guardian ad litem’s report and recommendation, and (3) awarding child support. This appeal followed.
D E C I S I O N
I. Property Award
Appellant argues that the district court inequitably divided the parties’ property by erring in its determination of what property was marital and what was nonmarital. “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 that the district court abused its discretion, the district court’s findings must be “against logic and the facts on [the] record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).
Minn. Stat. § 518.58, subd. 1 (2000), provides that, upon dissolution of a marriage, a court must make a “just and equitable” division of the parties’ marital property. Property that either spouse acquires during the marriage and before the date that the property is valued for dissolution purposes is presumed marital, regardless of how that property is owned. Minn. Stat. § 518.54, subd. 5 (2000). To overcome that presumption, “a party must demonstrate by a preponderance of the evidence that the property is nonmarital.” Antone v. Antone, ___ N.W.2d ___, ___, 2002 WL 1291876, at *4 (Minn. June 13, 2002) (citations omitted). “Whether property is marital or nonmarital * * * is a question of law subject to de novo review.” Id. at *3 (citation omitted). But “a reviewing court must defer to the [district] court’s underlying findings of fact.” Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).
A. Marital assets
The district court awarded appellant the parties’ interests in real estate, both homestead and non-homestead, including the land on which the parties’ house is located and the house itself. The district court directed appellant to pay $13,825 to respondent for her “equitable interest” in the real estate, including the house.
The parties do not dispute that the land on which the parties’ house is located is appellant’s nonmarital property, gifted to him and his brother before the marriage. But appellant claims that the house and other buildings on the land are nonmarital property, as well. He argues that the house was built before the marriage and that, therefore, only the appreciated value of the improvements that the parties made to the house during the marriage is marital property. He also contends that his brother owns a 50% interest in the buildings on the land, including the house, “a rickety old shack,” and “a little chicken coop.”
But records from the county assessor, admitted into evidence, show that the house was built in 1988. The parties married in 1987. Because the parties acquired the house during the marriage, it is presumed to be marital property. See Minn. Stat. § 518.54, subd. 5. And, when asked whether all the buildings on the land are his, appellant testified, “Yeah. Pretty much, yeah.” On this record, we will not disturb the district court’s determination that appellant failed to show by a preponderance of the evidence that the house and other buildings on the land are his nonmarital property. See Antone, 2002 WL 1291876, at *4.
B. Marital debt
In dividing marital debt, the district court apportioned to appellant $4,250 for part of a judgment against the parties for unpaid medical bills and apportioned to respondent $13,250, including the balance of the medical-bills judgment, $1,250; an $8,000 note owed to a bank; and $4,000 in credit-card bills. Appellant argues that all the obligations are respondent’s nonmarital debt except for approximately $1,500 of the $8,000 bank note. Appellant also contends that the district court omitted from its findings a debt owed to his father that the parties incurred during the marriage.
Minn. Stat. § 518.58, subd. 1, provides for the “just and equitable” division of the parties’ marital debt, as well as marital assets. O’Donnell v. O’Donnell, 412 N.W.2d 394, 396 (Minn. App. 1987). A district court has broad discretion in apportioning the parties’ debt. Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984). When making an equitable apportionment of marital debt, a court may consider the party responsible for incurring that debt. Id. A court may also equitably apportion debt to one spouse even when the other receives the benefit of payment. Id.
Appellant contends that the entire amount of the judgment for $5,500 for unpaid medical bills is respondent’s nonmarital debt. Respondent testified that the debt underlying the judgment was probably for medical treatment that she had received prior to the marriage and for medical treatment that appellant received during the marriage for burns that he suffered in 1993. Neither party produced documentary evidence of the judgment. The district court found respondent’s testimony credible, and we defer to the district court’s credibility determinations. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000). Appellant failed to show by a preponderance of the evidence that the entire judgment for unpaid medical bills is respondent’s nonmarital debt. See Olsen, 562 N.W.2d at 800.
Appellant argues that approximately $6,500 of the bank loan and all of the credit-card debt is respondent’s nonmarital debt. Respondent testified that the bank loan was used to consolidate credit-card debt, to pay for Christmas expenditures, and to refinance a car that was acquired during the marriage. Neither party testified that the debts that the loan consolidated were incurred before the marriage.
The same is true of the $4,000 in credit-card debt; neither party testified that the debt was incurred before the marriage. Both the bank note and the credit-card debt are therefore presumed marital, and appellant offered insufficient evidence to rebut that presumption. See Minn. Stat. § 518.54, subd. 5 (providing that property acquired during marriage is presumed marital, regardless of how that property is owned); Olsen, 562 N.W.2d at 800 (holding that party must demonstrate by preponderance of evidence that property is nonmarital). Regardless, the district court apportioned those debts in their entirety to respondent.
As for the alleged debt owed to appellant’s father, appellant testified that he owed his father “a stack of money,” “probably ten grand, eight, ten grand, somewhere in there,” and that “[p]robably roughly four to five grand” was incurred during the marriage. He produced no documentary evidence that the debt existed, and he testified: “[T]here is no records on it. I mean, just between me and [my father],” and “[w]e got it all written down at home.”
The district court omitted the debt from its findings. But
[i]t is well to bear in mind that[,] on appeal[,] error is never presumed. It must be made to appear affirmatively before there can be reversal.
Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949); see also Luthen v. Luthen, 596 N.W.2d 278, 283 (Minn. App. 1999) (“We cannot assume that the district court * * * will err or abuse its discretion * * * .”). The district court apparently disregarded as not credible appellant’s testimony that the debt existed. The district court did not abuse its discretion when it divided the parties’ marital property, including debt.
II. Child Custody
Appellant argues that (1) the district court’s findings of fact regarding the award of child custody are insufficient for meaningful appellate review; (2) the district court erroneously failed to consider Minn. Stat. § 518.17, subd. 2 (2000), in determining custody; and (3) the guardian ad litem’s report does not support the district court’s conclusion that awarding sole physical custody to respondent is in the children’s best interests.
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). Minn. Stat. § 518.17, subd. 3(a)(3) (2000), requires a district court to base its custody determination on the best interests of the child. “[B]est interests of the child” means that a district court must consider the factors set forth under Minn. Stat. § 518.17, subd. 1(a) (2000), when making its custody determination. In addition, if one parent is seeking joint legal or physical custody, a “court shall consider” additional factors set forth in subdivision 2. Minn. Stat. § 518.17, subd. 2 (emphasis added); see Minn. Stat. § 645.44, subd. 16 (2000) (providing “‘[s]hall’ is mandatory”). Minn. Stat. § 518.17, subd. 2, further provides:
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. However, 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, as defined in [the Domestic Abuse Act], has occurred between the parents.
Id.; see Domestic Abuse Act, Minn. Stat. § 518B.01 (2000).
Because of the district court’s broad discretion to determine custody,
it is especially important that the basis for the court’s decision be set forth with a high degree of particularity if appellate review is to be meaningful.
Wallin v. Wallin, 290 Minn. 261, 267, 187 N.W.2d 627, 631 (1971). Unless a district court makes findings regarding the statutory factors, “it is nearly impossible for [an] appellate court to conduct a meaningful review.” Abbott v. Abbott, 481 N.W.2d 864, 867 (Minn. App. 1992) (citation omitted) (citing Moylan v. Moylan, 384 N.W.2d 859, 863 (Minn. 1986)). A district court’s failure to make findings on the statutory factors that support its child-custody award ordinarily requires a remand. Moylan, 384 N.W.2d at 865.
A district court does not make findings by merely reciting the parties’ claims. Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989); see Antone, 2002 WL 1291876, at *2 (noting that while district court acknowledged that parties’ antenputial contract valued their homestead, district court “did not state whether it adopted that value”). Here, the district court used the guardian ad litem’s report as a substitute for its own findings. But the guardian ad litem’s report, in many instances, merely recited the parties’ claims.
Moreover, although the guardian ad litem addressed statutory factors set forth under Minn. Stat. § 518.17, subd. 1, in her report, she failed to reach conclusions regarding how those factors might affect custody and failed to address additional statutory factors that a district court must consider when a party seeks joint legal and physical custody, as appellant did here. See Minn. Stat. § 518.17, subd. 2 (describing four additional factors for court to consider when party seeks either joint legal or physical custody). Because the district court made no findings independent of the guardian ad litem’s report, it is impossible to determine whether the district court met its obligation to consider the additional factors when awarding custody.
For example, because appellant sought joint physical custody, the district court must consider whether “domestic abuse,” as defined by Minnesota statute, is a factor. See Minn. Stat. § 518.17, subd. 2 (presuming joint legal or physical custody is not in child’s best interests if domestic abuse has occurred between child’s parents); Minn. Stat. § 518B.01, subd. 2(a) (2000 & Supp. 2001) (defining domestic abuse). The guardian ad litem reported:
The domestic abuse was between the mother and father sometimes witnessed by [the children]. They sometimes pretended to be asleep when their father came home after drinking.
But the guardian ad litem neither identified the alleged abuser nor described the alleged abuse in sufficient detail for the district court to determine whether acts within the statutory definition of abuse had occurred. See Minn. Stat. § 518B.01, subd. 2(a).
Because the district court failed to make statutory findings sufficient for effective appellate review, we remand the child-custody award for further proceedings. We express no opinion regarding whether the district court’s award of sole physical custody of the children to respondent was in the children’s best interests.
III. Child Support
Appellant argues that the district court erred by calculating child support because “[c]hild support should be based on a comparison of the time [that] each parent has with the children and a comparison of income.” A district court has broad discretion to provide for the support of the parties’ children. Rutten, 347 N.W.2d at 50. The district court abuses its discretion by establishing child support in a manner that is against logic and the facts on the record. Id. We will affirm a district court’s findings regarding child support on appeal if those findings have a reasonable basis in fact. Duffney v. Duffney, 625 N.W.2d 839, 841 (Minn. App. 2001).
Appellant challenges the child-support award based on the arguments set forth in the Hortis/Valento line of cases. But the Hortis/Valento rule does not apply to cases involving an award of sole physical custody. Rogers v. Rogers, 622 N.W.2d 813, 821 (Minn. 2001). The Hortis/Valento line of cases modified the statutory child-support calculation by considering the amount of time each custodial parent spends with the children. See Hortis v. Hortis, 367 N.W.2d 633, 635-36 (Minn. App. 1985) (setting forth method for applying statutory guidelines to joint-physical-custody cases); Valento v. Valento, 385 N.W.2d 860, 863 (Minn. App. 1986) (applying Hortis), review denied (Minn. June 30, 1986).
Here, the district court awarded respondent sole physical custody of the parties’ children. Persons with sole physical custody are presumptively not child-support obligors. Minn. Stat. § 518.54, subd. 8 (2000).
[A]pplication of the Hortis/Valento formula where one parent has sole physical custody isa deviation from the [child-support] guidelines that must be supported by consideration of the statutory factors in Minn. Stat. § 518.551, subds. 5(c) and 5(i).
Rogers, 622 N.W.2d at 821 (emphasis added).
Appellant does not argue that there are circumstances that support a deviation from the statutory guidelines for establishing child support. See Minn. Stat. § 518.551, subd. 5(c) (setting forth statutory factors for courts to consider when determining whether to deviate from child-support guidelines). We therefore affirm the child-support award based on the district court’s determination awarding respondent sole physical custody. But because we remand the child-custody issue and because the calculation of child support depends on the child-custody award, the district court may exercise its discretion to revisit that issue once it has addressed custody.
Affirmed in part and remanded in part.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.