This opinion will be unpublished and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

C5-01-1661

 

In Re the Marriage of:

 

Barbara L. Bakal, petitioner,

Respondent,

 

vs.

 

John Z. Bakal,

Appellant.

 

Filed July 23, 2002

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. DC248539

 

Pamela L. Green, 5801 Duluth Street, Suite 360, Golden Valley, MN 55422-3900 (for respondent)

 

David Gronbeck, One Financial Plaza, Suite 1100, 120 South Sixth Street, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant John Bakal argues that the district court abused its discretion by (1) awarding respondent Barbara Bakal excessive maintenance; (2) establishing a property distribution that failed to recognize that respondent received an unencumbered vehicle; and (3) contradicting the award of joint legal custody by giving respondent sole control over the children’s custodial accounts.  We affirm.

D E C I S I O N

 

I.

 

            The district court has broad discretion in deciding whether to award maintenance and in determining its duration and amount.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  A reviewing court will not find an abuse of discretion absent “a clearly erroneous conclusion that is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).  “Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous.”  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992) (citation omitted).

             Spousal maintenance is essentially determined by balancing one spouse’s ability to pay against the other spouse’s needs.  Erlandson, 318 N.W.2d at 39-40.  Maintenance awards are governed by Minn. Stat. § 518.552, subd. 1 (2000), which allows a court to grant maintenance if a spouse (1) lacks sufficient property to provide for “reasonable needs * * * considering the standard of living established during the marriage,” or (2) cannot provide self-support. 

A.        Imputation of 40-hour workweek income

            First respondent asserts the court abused its discretion by not imputing income to respondent based on a 40-hour workweek.  We disagree. 

In order to impute income to a party for the purpose of setting maintenance, the court must find that the party was voluntarily underemployed in bad faith.  Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997).  In Carrick, we recognized that 

[a]s a matter of law, however, a court may not find bad faith underemployment where, as here, a homemaker has continued to work the same part-time hours at the time of dissolution as she did during the marriage, has been employed in the same type of position as she was during the marriage, and where there is no evidence of any intent to reduce income for the purposes of obtaining maintenance.

 

Id.

This case is similar to Carrick.  Here, the district court found that since the birth of the parties’ first child, respondent’s only full-time job was providing daycare for a child in her home, earning approximately $150 per week, and that since 1996, appellant has worked between 15 and 25 hours per week as a nursery-school teacher.  Evidence in the record supports the court’s findings that respondent was essentially a homemaker and mother during the parties’ 22-year marriage, that she continues to provide considerable parental support for her children, and that her current work schedule permits her to meet her daughter after school and transport the daughter to various activities.  The court declined to impute a 40-hour workweek income to respondent because her “current employment as a daycare teacher working 30 hours per week at $12.25 per hour is appropriate given her age, station in life, educational background, work history and earnings throughout the marriage.” 

Appellant attempts to distinguish Carrick because Carrick involved an award of temporary maintenance, and here, the court awarded permanent maintenance.  But in Maurer, we rejected a similar argument and noted that because “the Carrick holding was not premised on the type of maintenance awarded, its holding is equally applicable to cases involving either temporary or permanent spousal maintenance.”  Maurer v. Maurer, 607 N.W.2d 176, 181 (Minn. App. 2000), reversed on other grounds, 623 N.W.2d 604 (Minn. 2001).  We conclude the district court did not abuse its discretion in refusing to impute income to respondent based on full-time employment. 

B.        Imputation of income from adult child

Appellant also argues that the court abused its discretion by considering expenses of the adult children in respondent’s budget and by failing to impute rental income to respondent from the adult children living in her home.  We disagree. 

The district court found that

[respondent] presents a budget with expenses for herself and the general shelter and household needs for the minor children of $2,113 per month, and individual expenses attributable to the minor children of $1,309 per month for a total monthly budget of $3,422 per month.  The parties’ 19-year old son, * * * resides with [respondent] and some of his expenses for shelter needs, utilities and food are by necessity included within [respondent’s] overall household budget.  No expenses specific to [the adult child] are included in her budgeted needs.

 

Appellant argues that the court abused its discretion by including expenses of the adult children, but he failed to provide evidence of what expenses are attributable to the emancipated children.  The bulk of any benefit the adult child receives from respondent is the result of expenses that are not impacted by the adult child’s presence in the home (e.g., mortgage expense, heat, etc.), and any other amounts attributable to the child were nominal.  See Musielewicz v. Musielewicz, 400 N.W.2d 100, 103 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987) (recognizing district court should not consider needs of adult children in determining maintenance); Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for district court’s de minimis error).  Absent evidence regarding specific expenses attributable solely to the adult children, we conclude the district court acted within its discretion. 

Appellant argues that the court abused its discretion by failing to impute rental income from the adult children living in respondent’s home.  Minn. Stat. § 518.54, subd. 6 (2000), defines income to include “any form of periodic payment” and gives numerous examples of periodic compensation in return for work performed, plus annuities.  In Barnier, we concluded that “if a gift is regularly received from a dependable source, it may properly be used to determine the amount of a child support obligation.”  Barnier v. Wells, 476 N.W.2d 795, 797 (Minn. App. 1991).  But Barnier involved child support and focused on the financial position of the obligor not the potential obligee.  Id.  And appellant cites no case that establishes the proposition that a parent’s gift to an adult child of allowing the child to live in the home rent-free can be “recouped” or imputed as income for the parent giving the gift.  While we recognize that the legal child support obligation of an obligor parent ceases when the child reaches age 18, we cannot say the district court abused its discretion by failing to impute rental income to respondent as a result of her decision to provide a home for her children as she deems necessary.


C.        Appellant’s inability to meet his needs

Finally, appellant argues that he has insufficient income to both meet his needs and pay spousal maintenance.  The district court made detailed findings regarding appellant’s needs.  The district court found that appellant earns a net monthly income of $2,707.81 before child support and maintenance.  Appellant was ordered to pay guideline child support of $812 per month, but because of one child’s emancipation, appellant now pays $676.

The court found that appellant’s proposed budget of $2,389 per month was inflated.  See Jorschumb v. Jorschumb, 390 N.W.2d 806, 812 (Minn. App. 1986) (stating that district court is given discretion to weigh evidence and determine credibility of witness testimony, and this court will not substitute its judgment), review denied (Minn. Aug. 27, 1986).  The court specifically found that appellant’s testimony regarding his current living expenses was not credible, noting that appellant alleged he pays $700 per month for a one-bedroom apartment that he shared with his girlfriend in her sister’s home, but previously paid $925 for a two-bedroom apartment in which he lived alone.  The court reduced respondent’s rent, electric, heat, and cable expenses by half, reduced his food budget by $200, and eliminated a counseling and non-reoccurring uninsured dental charge, resulting in total monthly expenses of $1,570.  The district court also noted that appellant voluntarily incurred debt to purchase a newer car. 

With a monthly income of $2,707, expenses of $1,570, and a child support payment of $676, respondent is left with $461 per month.  Because the district court made detailed findings that have support in the record, we conclude the court did not abuse its discretion in awarding $400 per month in maintenance.  

II.

 

            Appellant argues that the district court abused its discretion by failing to recognize that respondent received an unencumbered car in the property distribution.  We disagree.  The district court “has broad discretion regarding the division of property in marriage dissolutions and will be reversed only for a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 296 (Minn. App. 1998) (citation omitted), review denied (Minn. Feb. 18, 1999).  A reviewing court must affirm the district court’s division of property “if it had an acceptable basis in fact and principle” even though the reviewing court may have taken a different approach.  Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984) (citations omitted). 

The district court denied appellant’s request for an offset for the value of respondent’s automobile, reasoning that appellant had an operable unencumbered vehicle when he left the homestead and that he voluntarily replaced that vehicle with a newer vehicle, incurring debt.  This finding is supported by evidence in the record.  Moreover, the district court’s division of marital property must be equitable but need not be equal.  Ruzic v. Ruzic, 281 N.W.2d 502, 505 (Minn. 1979).  We conclude the district court acted within its broad discretion. 

III.

Appellant argues that the court abused its discretion by awarding respondent sole control over the children’s custodial accounts even though the court awarded joint legal custody.  We disagree.  The court ordered respondent to maintain the custodial accounts, but ordered that she inform appellant prior to any disbursements from the accounts.  Testimony established that this is generally the way the parties handled the accounts during the marriage.  We conclude the district court acted within its discretion.  See Crosby, 587 N.W.2d at 296 (recognizing district court has broad discretion regarding property division in marriage dissolutions).

Affirmed.