This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-197

 

 

In re:†

Debra M. Anderson,

petitioner,

Respondent,

 

vs.

 

Leo J. Utecht,

Appellant.

 

 

Filed July 30, 2002

Affirmed; motion granted
Foley, Judge
*

 

Hennepin County District Court

File No. DW251831

 

Carole M. Megarry, 1000 Northstar Center East, 608 Second Avenue South, Minneapolis, MN 55402 (for respondent)

 

John R. Jesperson, 1012 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN 55415 (for appellant)

 

††††††††††† Considered and decided by Harten, Presiding Judge, Willis, Judge, and Foley, Judge.


U N P U B L I S H E D†† O P I N I O N

FOLEY, Judge

††††††††††† Appellant challenges the district courtís spousal maintenance and marital property awards, arguing that the record does not support the findings; the district court weighed inappropriate factors; and the district court failed to specify appellantís monthly needs and expenses.† Because we conclude that (1) the record supports the district court findings, (2) the district court weighed proper factors in its determinations; and (3) the district court made a fair and equitable award, we affirm.

FACTS

††††††††††† Appellant husband Leo Utecht and respondent wife Debra Anderson were married on February 11, 1982.† The couple had three children; two are minors and live primarily with Anderson.† The third child attends college, but at the time of trial was supported by Anderson.†

Anderson is 47 years old and works as an executive at SuperValu, earning approximately $100,000 annually.† Utecht, an entrepreneur, is 59 years old and worked until recent years when injuries he received in two separate accidents decreased his physical and psychiatric abilities.† Utecht sought spousal maintenance from Anderson.

After a trial, the district court dissolved the marriage on December 6, 2001.† The district court found that Utecht was responsible for the disappearance of eight pieces of Andersonís jewelry and reduced his marital property award accordingly.† Additionally, the district court awarded Utecht $500 per month in permanent spousal maintenance.† Utech appeals the district courtís decision.

D E C I S I O N

††††††††††† Maintenance Award

††††††††††† Utecht challenges the district courtís maintenance award, claiming that the court erred by (1) mistakenly calculating Andersonís expenses and income; (2) shifting the entirety of the coupleís financial hardship onto him; (3) weighing the partiesí child support obligations; and (4) failing to specify his monthly expenses in order to properly balance them against Andersonís ability to pay.† We review the district courtís maintenance award under an abuse of discretion standard.† Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).† The district courtís award will be upheld unless its findings of fact are ďagainst logic and the facts on [the] record.Ē† Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).†

††††††††††† First, Utecht challenges the district courtís findings related to Andersonís monthly expenses and income.† With regard to those expenses, Utecht argues that $6,700 in monthly expenses is inconsistent with the standard of living established during the marriage.† In particular, he cited their use of used, rather than new, cars.† We conclude that the district court agreed with Utecht that used cars more appropriately fit in the standard of living established during marriage.† The district court therefore reduced Andersonís monthly expenses as follows:

The $1,615.43 transportation number is more problematic.† [Anderson] purchased a new car while the dissolution was pending and has a $515.67 monthly payment.† This represents an increase over the standard of living established during the marriage, when used vehicles were the norm.† The monthly insurance payment of $479.76 includes coverage for the partiesí emancipated daughter.† The cost of cars for the minor children are included in the budget, but [Anderson] credibly explained how this expense was an integral part of the standard of living established during the marriage and the standard the boys would have continued to enjoy had the parties not separated.† This category should be reduced by about $300, down to $1,300 per month.

 

Utecht also alleges that Andersonís expenses are impossible to calculate because she counted a number of expenses twice by including them in multiple categories and because she submitted several significantly different budgets during the course of this litigation.† We find no evidence that Anderson double-counted any of her expenses.† On the contrary, Anderson testified at length regarding how she kept track of her expenses and gave reasons why some of her expenditures might fall into a ďmiscellaneousĒ or ďcashĒ category rather than some appropriately specified category.† Additionally, we note that this litigation has spanned a number of years and it is very possible that Andersonís budget would fluctuate over time.† We believe the district court determined Andersonís expenses in order to grant Utecht the maintenance he sought, and we conclude that the courtís determinations with regard to Andersonís expenses are not against logic or the facts on the record.

Second, Utecht argues that the district court erred in determining Andersonís income.† He contends that the district court based Andersonís income on her July 28, 2001 pay stub, rather than other documentation,[1] and by failing to account for her annual bonus.†

10.† [Anderson] is employed full time by SuperValu, earning $102,209.90 per year in annual gross income from salary ($3,931.15 in ďregularĒ biweekly earnings X 26 weeks = $102,209.90).† She has $81.01 in pre-tax deductions for dental insurance, medical insurance, and a medical account.† She also has a $196.56 biweekly pre-tax deduction for savings.† It is appropriate to add back the pre-tax savings when considering her ability to pay spousal maintenance while meeting her own needs.† Minn. Stat. ß 518.552, subd. 2(g).† After deducting the pre-tax medical related deductions, [Anderson has] $8,341.97 in gross monthly income.† (As part of this dissolution, [Anderson] will not be receiving any significant income generating assets that will materially enhance her monthly cash flow.)

 

11.† [Andersonís] July 28, 2001 pay stub (Ex. 101) reveals that in addition to her base salary, she received a $10,808 bonus during 2001.

 

12.† Even though [the oldest child] is emancipated, she is attending college and is being supported by [Anderson].† Thus [Anderson] is entitled to claim four exemptions.† Using the tax tables for a single filer, filing as head of household with four exemptions, [Anderson] should have approximately $5,840 in monthly net income.† ([Anderson] submits a FinPlan that uses actual deductions instead of the standard deduction, but only uses three exemptions.† The ultimate difference is not material to the analysis as is shown later herein.† Similarly, if the Court used three exemptions rather than four, it would not materially alter the analysis that follows).

 

††††††††††††††††††††††† * * * *

 

The Court is only willing to find $500 in maintenance to be a fair amount because of the prospects that [Anderson] will be able to reduce [her shortfall] via bonus income.† Accordingly, if [Anderson] does not receive a significant bonus in 2002, a section 518.64 motion might be in order.† At the same time, if her bonus in 2002 substantially exceeds $10,808, [Utecht] may consider a section 518.64 motion.

 

††††††††††† Because Andersonís pay stub is an appropriate basis from which to determine her income, and because we agree with the district court that Utecht may ask the district court to amend his maintenance award if respondent receives a year-end bonus, we conclude that the district court did not err when it determined Andersonís income based on her pay stub.† Cf. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989) (stating dependable bonuses are to be included in obligorís income for maintenance purposes).

Third, Utecht argues that the district court erred by placing the entirety of the coupleís financial hardship on his shoulders, forcing him to invade and dissipate his portion of the marital property.† The record simply does not support Utechtís assertion.† Although the maintenance award granted by the district court is not sufficient for him to maintain the standard of living enjoyed during the marriage, neither will respondent or the coupleís children enjoy such a standard of living.† The district court noted that respondent will incur a monthly deficit of at least $1,097 and that

[a]t this level [Anderson] will suffer significant additional debts even if she reduces her standard of living (and the childrenís as well) to a level way below the marital standard (unless she receives future bonus income, which will only cut the deficit in part if the bonus income matches 2001).† There are not enough corners to cut, especially since the Court has already significantly reduced her proposed budget.†

 

††††††††††† Although the court should not ordinarily expect a recipient spouse to invade the principal of investments to satisfy monthly financial needs when determining maintenance awards, Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985), in cases such as this one, where there is simply not enough money to meet the needs of the family and where it is likely that both parties will inevitably need to dissipate their marital property, a maintenance decision that results in such an outcome is not an abuse of discretion.

Fourth, Utecht argues that the district court erred by considering his potential child support obligation when it determined the spousal maintenance award.† Utecht believes his maintenance award should not be decreased due to the fact that his child support obligation was excused.† When physical custody is joint, as it is in this case, the child support guidelines require the allocation of the child support obligation between the parents.† Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986), review denied (Minn. June 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 635-36 (Minn. App. 1985).† The intent of the formula is to impose a support obligation on the obligor only for the time that the children spend with the other parent.† Valento, 385 N.W.2d at 862.

††††††††††† Because the childrenís primary residence is with respondent, if the Hortis/Valento formula were applied, Utechtís child support obligation would be greater than Andersonís.† Utecht relies on Jensen v. Jensen, 409 N.W.2d 60 (Minn. App. 1987), to support his argument that the district court should have decreased his child support obligation.† In Jensen, the court refused to impose a child support obligation on a spouse who was receiving spousal maintenance in an amount that merely met her needs without accounting for a requirement that she pay child support.† Id. at 62.† Here, the district court acknowledged that Utecht has no means to pay child support, and therefore the court followed Jensen by declining to impose a child support obligation on Utecht.† We conclude that the district court did not abuse its discretion by noting that Utecht was excused from paying Anderson child support when it balanced his needs against her ability to pay.

Finally, Utecht contends that the district court erred by failing to itemize his monthly expenses in order to properly balance them against Andersonís ability to pay.† Spousal maintenance is properly awarded where the spouse seeking maintenance is unable to support his or herself through appropriate employment in view of the standard of living established during the marriage.† Minn. Stat. ß 518.552, subd. 1(b) (2000).† When determining the amount of the maintenance award, the district court had to consider factors which include Utechtís needs and ability to meet his needs as balanced against Andersonís ability to pay maintenance.† Minn. Stat. ß 518.552, subd. 2 (2000); Erlandson, 318 N.W.2d at 39-40.† Each case must be decided on its own facts, and no single statutory factor for determining the type or amount of maintenance is dispositive.† Erlandson, 318 N.W.2d at 39-40.† But where the district court fails to determine the needs of the spouse seeking maintenance, the case should be remanded for such findings to be made.† Bliss v. Bliss, 493 N.W.2d 583, 587 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).

The district court made the following findings:

27.† It is undisputed that after the dust settles on this dissolution, [Utecht] will not have sufficient property to meet his needs considering the standard of living established during the marriage.† Minn. Stat. ß 518.522, subd. 1(a).

 

28.† It is also clear, although disputed by [Anderson], that [Utecht] will not be able to meet his needs through ďappropriate employment.Ē† Minn. Stat. ß 518.522, subd. 1(b).

 

* * * *

 

37.† It seems that all of this speculation about [Utechtís] work prospects may be of academic interest only.† Even though [Utecht] is a very deserving candidate for spousal maintenance from a need perspective, [Anderson] does not have the financial strength to come anywhere close to supporting him.† The amount of maintenance that this Court is able to award is so low that [Utecht] will be forced to work to make ends meet.†

 

* * * *

 

39.† [Utecht] claims that he needs $4,766.57 per month, while [Andersonís] FinPlans allow him $3,000 per month.† The Court could whittle down [Utechtís] budget as it did [Andersonís], but the exercise would be of academic interest only.† That is because the Court has determined the maximum hardship sharing that would be fair and reasonable to visit upon [Anderson] and the Court will go no higher regardless of whether [Utechtís] expense[s] are $3,000 or $4,766 or somewhere in between.

 

* * * *

 

If the exercise became crucial to the analysis, the Court would not accept a number of items in [Utechtís] budget as commensurate with the marital standard of living.† Monthly automobile gas at $350 per month is not justified by the record and the $328.77 for disability insurance does not comport with the marital standard.

 

††††††††††† Although the district court did not itemize Utechtís expenses, normally a prerequisite when determining spousal maintenance, we decline to remand this case for that purpose in the face of the enormous debt already incurred by the parties.† To do so would only lead to increased attorney fees and accomplish little or nothing.†

††††††††††† Although it is regrettable that Utecht suffers from disabilities, he is entitled to pension benefits earned during previous employment, he pays nothing towards child support, and his claim for social security benefits due to his disability is not finally resolved.† Anderson pays the bills, supports the children, has incurred enormous debt during the marriage and anticipates mounting obligations as she plans to co-sign for student loans for the coupleís children.† Yet Anderson was ordered to pay $500 per month in spousal support.† Utecht complains that he is unfairly burdened by enormous debts, some of which were incurred during the marriage.† Although it is true that Utecht is burdened with greater debt than Anderson, the record reflects much of this debt was incurred through his business ventures, and he expressly agreed in open court to accept sole responsibility for these debts so that Anderson might be allowed to co-sign for the childrenís student loans.† The district court clearly labored long and hard in an attempt to resolve the problems in this case, and we decline to ask the court to participate in an exercise in futility.

††††††††††† Division of Marital Property

Utecht argues on appeal that the district court erred by effectively reducing his marital property award to offset the value of Andersonís jewelry found missing from both Andersonís automobile and the marital home.† We review the district courtís division of marital property under an abuse of discretion standard.† Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000).

††††††††††† Utecht contends that the district court could not adequately judge witness credibility due to his diminished physical and psychiatric condition, and that there was insufficient evidence for the district court to conclude that Utecht was responsible for the jewelryís disappearance and to assign a value to it.† The district court is in the best position to judge credibility of witness testimony.† Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).† In this case, the district court took Utechtís condition into account and was not prevented from judging credibility.† Additionally, the record supports the district courtís findings as to the disappearance and the value of the jewelry.† Therefore, we conclude that the district courtís distribution of marital property was not an abuse of discretion.

††††††††††† To fashion relief different from that provided by the district court is an impossible task and we commend the court on its effort to treat the parties fairly and equitably.

††††††††††† Affirmed; motion granted.



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

[1] Utecht presented the appellate court with documentation regarding Andersonís SuperValu benefits, which includes a calculation of her income.† Anderson moved this court to strike the document as not being a part of the district court record and consequently not properly before this court.† The information contained in the document played no part in the decision of this case and Andersonís motion is granted.† See Minn. R. Civ. App. P. 110.01 (defining record on appeal as papers filed in district court).