This opinion will be unpublished and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

CX-01-2224

 

Margaret Gleason Brehmer, petitioner,
Respondent,

vs.

David Lee Brehmer,
Appellant.

 

Filed August 13, 2002

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. DC228282

 

 

A. Larry Katz, Roslyn J. Beckman, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN 55402 (for respondent)

 

Roselyn J. Nordaune, Nordaune & Friesen, 1140 Interchange Tower, 600 South Highway 169, St. Louis Park, MN 55426 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Minge, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            On appeal from the dissolution of his marriage, appellant argues that the district court abused its discretion by (1) imputing income to him; (2) refusing to award him maintenance; (3) improperly valuing and inequitably dividing property and debts; (4) awarding attorney fees to respondent; and (5) limiting his ability to present his case, requiring this court to grant him a new trial.  We affirm.

D E C I S I O N

 

I.

In dissolution proceedings, the district court has broad discretion to provide for support of the parties’ children.  Marden v. Marden, 546 N.W.2d 25, 27 (Minn. App. 1996).  An appellate court will not reverse a child-support order unless the district court abused its discretion by resolving the matter in a manner that is against logic and the facts on record.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). 

A district court may impute income to a parent “[i]f the court finds that a parent is voluntarily unemployed.”  Minn. Stat. § 518.551, subd. 5b(d) (2000).  Imputed income is “the estimated earning ability of a parent based on the parent’s prior earnings history, education, and job skills, and on the availability of jobs within the community for an individual with the parent’s qualifications.”  Id.  If the court finds insufficient evidence to impute income, the court may calculate support based on full-time employment of 40 hours per week at 150% of the minimum wage.  Id., subd. 5b(e) (2000); see Putz v. Putz, 645 N.W.2d 343, 350-51 (Minn. 2002) (addressing imputation of income to support obligations).

In July 2001, the district court placed custody of the parties’ five-year-old daughter with respondent-mother Margaret Brehmer, imputed $1,400 of monthly income to appellant-father David Brehmer, and ordered appellant to pay respondent $350 per month in child support.  Appellant argues that the court improperly imputed income to him because he lost his attorney license and thus cannot practice law.  He also contends that his nursing license has lapsed, and thus he would “need to retrain and then face the uncertainty of the job market.”  He further contends that he no longer has a real-estate license and that he could not otherwise find a job before trial.  Moreover, appellant asserts that the court must make specific bad-faith findings to impute income to him. 

The court found that appellant (1) was employable but chose to remain unemployed; (2) had been an attorney for several years until the supreme court revoked his license in January 2001; and (3) had not diligently sought employment.  In addition, the record shows that appellant had been a realtor and a nurse but let both licenses expire.  Also, appellant submitted no proof of his alleged $3,005 in monthly expenses.  Moreover, the court did not need to find bad faith to impute income to appellant.  See Walker v. Walker, 553 N.W.2d 90, 95 n.1 (Minn. App. 1996) (stating that “when setting child support, courts are no longer required to find bad faith before considering an obligor’s earning capacity”).  Because appellant’s employment background shows that he has many skills, and yet he has not made reasonable efforts to find a job, the district court did not abuse its discretion by imputing to him 150% of the minimum wage, as section 518.551, subdivision 5b(e) recommends.

II.

We review a district court’s spousal-maintenance award under an abuse-of-discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  A district court may award spousal maintenance if it finds that, considering the standard of living established during the marriage, the spouse seeking maintenance lacks sufficient property to provide for his or her needs.  Minn. Stat. § 518.552, subd. 1(a) (2000). 

Appellant argues that the district court abused its discretion by not awarding him spousal maintenance because he is unemployed.   Because the court properly imputed income to appellant, and because appellant failed to produce evidence of his claimed monthly expenses, he has not shown that the district court abused its broad discretion by refusing to grant him spousal maintenance. Cf. Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (stating that party’s failure to produce documentation, which leads to denial of party’s request for relief, precludes party from complaining on appeal).  Appellant also contends that, in denying him spousal maintenance, the court improperly considered his suspension from the practice of law.  Even if the court improperly referred to appellant’s professional misconduct, this statement was not indispensable to the decision on his maintenance claim.  The court still found appellant voluntarily unemployed.  See Hanka v. Pogatchnik, 276 N.W.2d 633, 636 (Minn. 1979) (stating that, where the findings necessary for a legal conclusion are adequately supported, a court’s inclusion of other unsupported findings is harmless error). 

III.

            We next review the division of property and the payment of debts.  “[F]indings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).  Valuation is a finding of fact, and disputes over valuation are to be resolved in the district court by the fact-finder.  Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975).  Market value of an asset is controlling.  Bateman v. Bateman, 382 N.W.2d 240, 246 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986).  But a finding of value need only lie within a reasonable range of figures.  Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979). 

The district court has broad discretion in dividing marital property, and we examine that division under an abuse-of-discretion standard.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000).  The court must make a “just and equitable” division of the parties’ marital property without regard to marital misconduct.  Minn. Stat. § 518.58, subd. 1 (2000).  And the parties’ debts are treated as property and should be apportioned equitably.  Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986), review denied (Minn. May 29, 1986).  “[I]f the division is equitable, there is no requirement that it be equal.” Dorweiler v. Dorweiler, 413 N.W.2d 572, 576 (Minn. App. 1987). 

The district court awarded respondent the parties’ home, finding it to have a fair market value of $180,000 based on a 2000 formal appraisal.  The court awarded appellant the parties’ car, ordering appellant to refinance or pay off the car within 15 days or it would revert to respondent.  Also, the court found that respondent had $35,570 in debts, including $8,189 for the parties’ car and $6,500 for appellant’s 1999 self-employment taxes; the court ordered that appellant’s debts were his “sole obligation, if they exist.”

Appellant argues that the district court should have valued the parties’ house “as is” and failed to account for certain repairs that had already been completed.  Appellant also claims that he could not afford to pay off the car, which resulted in awarding it to respondent.  Moreover, appellant contends that the court improperly gave respondent full credit for her debts but ignored appellant’s debts. 

            Appellant chose not to contest the market value of the parties’ house by performing an independent appraisal, and except for generalized evidence of real estate inflation, appellant submitted no evidence that the house had increased in value.  In addition, the court offset any appreciation that might have occurred to the house against the repairs that the house still needed. 

            With respect to the car, we agree with appellant that a short 15-day window to pay off the car loan placed a significant burden on him when he was unemployed.  But the district court did not abuse its discretion.  The car was registered in respondent’s name; if appellant failed to make payments, respondent would be in default and, at a minimum, her credit would suffer.  We cannot say that the district court acted improperly in trying to avoid such a problem from developing.  The court saw the parties and was best able to judge risks and fashion a decree to avoid those risks. 

            Appellant also seeks review of the manner in which the district court treated indebtedness.  The court found that appellant produced no evidence of his alleged debts, whereas respondent submitted documentation of and reasons for her debts.  Moreover, the court ordered each party responsible for individual debts, and the court even ordered respondent to pay one of appellant’s debts—his 1999 self-employment taxes.  The court did not abuse its broad discretion in valuing and dividing the parties’ marital property and debts.

IV.

An attorney-fee award rests almost entirely within the district court’s discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  In proceedings under Chapter 518, the court may award attorney fees against a party who unreasonably contributes to the length or expense of the proceeding.  Minn. Stat. § 518.14, subd. 1 (2000).  The court must identify whether its attorney-fee award is based on need, conduct, or both.  Geske v. Marcolina, 624 N.W.2d 813, 816 (Minn. App. 2001).

            The district court ordered appellant to pay $5,000 toward respondent’s attorney fees.  Appellant argues that the court failed to specify whether that award was under Minn. Stat. § 549.211 (2000) or under section 518.14.  He claims that, if the fees were under section 518.14, the court failed to specify whether the fees were conduct-based or need-based.  Moreover, appellant reiterates that he cannot afford to pay the attorney-fee award.  He argues that his request for custody was not frivolous, that his suspension from the practice of law does not prevent him from pursing his rights in this case, and that the court failed to specify what part of his conduct caused respondent to incur additional fees.

            This is a dissolution proceeding under Chapter 518.  Moreover, the court specified that appellant’s behavior in this litigation justified conduct-based fees, finding that appellant had increased respondent’s fees by

litigious behavior, his willful disregard for tax and insurance matters, his demands with regard to custody and visitation even in light of the custody study, and the malpractice claims brought against [him] that resulted in his suspension from the practice of law. 

 

Therefore the inference that the attorney-fee award was a conduct-based award under section 518.14, subdivision 1, is unavoidable, and on this record, the district court’s error in failing to identify the legal basis for the award is harmless.  See Minn. R. Civ. P. 61 (stating that harmless error is to be ignored).  Appellant also repeatedly failed to comply with the court’s discovery orders.  We note that the court ordered appellant to pay only $5,000 of respondent’s $43,573 in total legal fees.  The district court did not abuse its discretion in its attorney-fee award.

V.

 

            Finally, we address appellant’s claims regarding witnesses and testimony.  The district court must exercise reasonable control over the mode and order of questioning witnesses and presenting evidence (1) to facilitate the ascertainment of truth; (2) to avoid waste of time; and (3) to protect witnesses from harassment.  Minn. R. Evid. 611(a).  Evidentiary rulings, such as whether to exclude expert testimony, lie within the district court’s sound discretion.  Benson v. N. Gophers Enters., 455 N.W.2d 444, 445 (Minn. 1990).  “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997) (quotation omitted).  Because the district court has the discretion to grant a new trial, an appellate court will not disturb the decision absent a clear abuse of discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).

            The district court issued a January 18, 2001, order requiring that all discovery be completed before the March 26 pretrial conference.  Almost two months before trial, the court issued another order requiring that the parties produce a witness list containing a short statement of each witness’s expected testimony.  On May 10, after the first day of trial, the court issued an order pointing out that appellant had failed to comply with several discovery orders.  The court gave appellant over two weeks to submit three witnesses’ affidavits and permitted a second day of trial for June 5.  In its July 2001 order, the court found that appellant had adequate time to present witnesses and produce their affidavits but had failed to do so.  The court denied appellant’s motion for amended findings and a new trial. 

Appellant argues that the court denied him due process by excluding testimony from his witnesses and by limiting his presentation of the case.  He contends that he could not depose witnesses because respondent’s attorney did not cooperate with him and that the court should not have quashed his subpoenas even though they had not been issued by the first day of trial.  He also argues that the court should have let him present his witnesses on the second day of trial and that the court abused its discretion by reserving that day only for evidence on spousal maintenance.

            The record shows that the court gave both parties adequate notice of its discovery expectations and warned that it would not readily grant a continuance.  We further note that appellant sought to introduce expert and lay-witness testimony only on the custody determination—a decision that he does not challenge on appeal.  Because appellant had adequate opportunity to present his case, and because he has not shown prejudicial error, the court did not abuse its discretion by adhering to its procedural calendar.

            Affirmed.