This opinion will be unpublished and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

C0-01-2135

 

In re the Marriage of:

 

Gary A. Tournier, petitioner,

Appellant,

 

vs.

 

Ruth Ann Tournier,

Respondent.

 

Filed September 3, 2002

Affirmed as modified

Gordon W. Shumaker, Judge

 

Dakota County District Court

File No. F9-98-13373

 

 

Eric J. Magnuson, Kimberly T. Ross, Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402; and

 

Becky Toevs Rooney, 10 Marquette Avenue, Suite 700, Minneapolis, MN 55402 (for appellant)

 

Brian L. Sobol, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN 55402 (for respondent)

 

 

            Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge,* and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

On appeal from a judgment dissolving the parties’ marriage, appellant-husband argues that the district court (a) abused its discretion by establishing a particular property-valuation date and, as a result, erroneously included the increase of the marital estate’s value when dividing the marital estate; (b) clearly erred by overvaluing husband’s business assets; (c) abused its discretion by awarding wife excessive maintenance; and (d) made findings regarding husband’s alleged dissipations of the marital estate that are unsupported by the record.  We affirm as modified.

FACTS

In January 1988, appellant-husband Gary A. Tournier and respondent-wife Ruth Ann Tournier separated after 11 years of marriage.  For the eight years before the separation and throughout the separation, wife did not work outside the home.  In September 1988, wife filed a dissolution petition, and, a short time later, husband began to voluntarily pay to wife monthly child support and spousal maintenance.  He continued to make those payments even after the parties dismissed the proceeding in March 1995.  After the dismissal, the parties remained separated.

In 1996, husband purchased property upon which he had a new home built for wife and the parties’ daughter.  Husband also increased the voluntary monthly child support and spousal maintenance payments.  Once their daughter was emancipated in 1998, husband reduced his monthly payments to wife.

In May 1998, husband filed a dissolution petition.  Although the parties had been separated for ten years before the petition was filed and almost 13 years before the judgment was filed, the district court established December 31, 1999, as the valuation date for the distribution of property.  The district court awarded wife approximately one-half of the marital estate and awarded her permanent spousal maintenance. 

The district court amended the judgment on both April 30, 2001, and October 5, 2001, in response to motions made by both parties.  Husband filed this appeal.

D E C I S I O N

The district court has broad discretion when setting reasonable valuation dates, dividing marital property, determining whether to award maintenance, its duration and amount, and determining whether a party dissipated marital assets, and we will not disturb those determinations absent a clear abuse of discretion.  See Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982) (maintenance); Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000) (property division), review denied (Minn. Oct. 25, 2000); Desrosier v. Desrosier, 551 N.W.2d 507, 510 (Minn. App. 1996) (valuation dates); Volesky v. Volesky, 412 N.W.2d 750, 751-52 (Minn. App. 1987) (using property division’s abuse-of-discretion standard when determining dissipation-of-assets issue).  For us to conclude that the district court abused its discretion, the district court’s factual findings must be “against logic and the facts on [the] record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).

I.

Husband contends that the district court abused its discretion by setting an improper valuation date that did not reflect the parties’ 13-year separation.

Minnesota law requires the district court to make a “just and equitable” division of marital property, after considering all relevant factors, including those listed in Minn. Stat. § 518.58, subd. 1 (2000).  “Marital property” is defined as

property, real or personal, * * * acquired by the parties, or either of them, * * * at any time during the existence of the marriage relation between them, * * * but prior to the date of valuation under section 518.58, subdivision 1. 

 

Minn. Stat. § 518.54, subd. 6 (2000) (emphasis added).  Under Minn. Stat. § 518.58, subd. 1, the valuation date shall be determined as follows:

The court shall value marital assets for purposes of division between the parties as of the day of the initially scheduled prehearing settlement conference, unless a different date is agreed upon by the parties, or unless the court makes specific findings that another date of valuation is fair and equitable.

 

(Emphasis added.)  As discussed above, the district court has broad discretion in setting reasonable valuation dates.  Desrosier, 551 N.W.2d at 510.

Husband argues that the separation date should serve as the valuation date because wife did not contribute to the acquisition, preservation, or appreciation of any marital assets during the parties’ long-term separation.  Wife argues that, although the parties lived separately, they did not live independently and she received all her financial support from husband. 

The district court made the following finding when selecting December 31, 1999, as the valuation date:

As a matter of law, this court must value the marital estate as of the date of the first pretrial, absent a showing that another valuation date is fair and equitable.  There is no presumption, however, that each party made a substantial contribution to the acquisition of income and property subsequent to a time when they are no longer living together as husband and wife.  There is no basis to select a valuation date other than December 1999, the date agreed upon if present valuation was to be used by the court.

 

The district court denied husband’s motion to amend this finding. 

The record demonstrates that the parties originally agreed to try to mediate the case and requested to hold the pretrial conference after discovery.  There were many discovery problems, and, after the district court granted many continuances, the court continued the case to December 1999.  Trial was held in October 2000.  It is unclear  whether the pretrial conference actually occurred in December 1999; however, because the parties requested to have the pretrial conference after discovery and the case was continued to December 1999, the district court did not abuse its discretion by setting December 31, 1999, as the valuation date.

            Husband argues that the Boom and Gummow cases support his argument that the separation date should serve as the valuation date.  See Gummow v. Gummow, 375 N.W.2d 30 (Minn. App. 1985); Boom v. Boom, 367 N.W.2d 536 (Minn. App. 1985), review denied (Minn. June 27, 1985).  However, March v. March, 435 N.W.2d 569 (Minn. App. 1989), provides better guidance on this issue.  There, we upheld the district court’s determination that the separation date was a more equitable valuation date than the prehearing settlement conference date required by statute because the parties truly lived independently during their separation, as evidenced by their own division of the marital property during their separation.  Id. at 571.

And, in Kitchar, we distinguished March to affirm the district court’s determination that, despite the parties’ seven-year separation, there were no equitable facts to support using the date of separation as a valuation date because the parties made no division of property when they separated.  Kitchar v. Kitchar, 553 N.W.2d 97, 103 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  Here, the parties did not divide the marital property during the separation and did not live independently.  Husband provided all of wife’s financial support.  Moreover, despite having separate bank accounts, husband and wife filed joint tax returns, and, like in Kitchar, their assets were in a common pool controlled by husband.  See id. 

            The district court did not abuse its discretion by establishing December 31, 1999, as the valuation date.

II.

Husband argues that the district court abused its discretion by awarding wife approximately one-half the marital estate because (1) wife did not contribute to the increase of husband’s business assets during the marriage and (2) the court made inconsistent assumptions with respect to husband’s income and, by doing so, improperly valued his business assets and “double-dipped” by using the business income to determine his maintenance obligation after using it in the property-division analysis.  Wife argues that the district court did not abuse its discretion because it evaluated the credibility of the parties’ financial expert witnesses, determined the value of the business assets consistent with Nardini v. Nardini, 414 N.W.2d 184 (Minn. 1987), and Rogers v. Rogers, 296 N.W.2d 849 (Minn. 1980), and did not “double-dip” because it did not use husband’s share of the property as part of the maintenance award. 

We will set aside the district court’s valuation of a business in a dissolution proceeding only if the valuation is clearly erroneous.  Bury v. Bury, 416 N.W.2d 133, 137 (Minn. App. 1987).

Contribution During the Marriage

Husband argues that his long-time business partner, with whom he has also had a long-term personal relationship, has helped him increase the value of his business, and that wife did not contribute to this increase.

Under Minn. Stat. § 518.54, subd. 5 (2000), all real or personal property acquired by the parties during their marriage and before the valuation date is presumed to be marital.  The party who seeks to claim that an asset acquired during the marriage is nonmarital has the burden of proof.  Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn. App. 1989)

The district court did not err by applying the statutory presumption.  First, wife helped husband in a variety of ways when he first began the business.  Second, husband was in a position to increase the value of this business, which was started during the marriage, partly because of wife’s care of the parties’ daughter.  The statutory presumption allocates to husband the burden of proving that the increase in the business’s value was nonmarital in nature.  He failed to meet his burden and did not overcome the statutory presumption that the parties made an equal contribution to the increase in value, and, therefore, such increase was marital in nature.

Income Used to Determine Value of Business and Maintenance Obligation

When valuing a marital asset, “market value of the asset is controlling.”  Bateman v. Bateman, 382 N.W.2d 240, 246 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986).  Nardini lists specific factors the district court must consider, but there is no set formula to determine the value of a closely held business.  Nardini, 414 N.W.2d at 189-90; see Thomas v. Thomas, 407 N.W.2d 124, 126 (Minn. App. 1987) (discussing valuation methodologies for closely held businesses and recognizing the ease with which one can manipulate a business’s book value).

The district court evaluated the expert witnesses’ testimony and found wife’s witness more credible with respect to the value of the business and the parties’ cash flow.  Husband does not argue error with respect to the specific valuation of the business as much as he argues error with the estimates of his income.  Husband’s primary argument is that the district court’s methodology led to “double-dipping.” 

The district court explained that husband’s accountant provided the information that served as the basis for both experts’ opinions and that the accountant relied on the accuracy of husband’s information.  Both experts considered the salaries of the officers and employees when determining the business’s value, presumably to show the distribution of profits.  The district court also recognized that a business’s current value does not include salaries.  The district court did not find husband’s expert’s use of a key-person discount to be persuasive.  The district court did not abuse its discretion.  See Rogers, 296 N.W.2d at 852-53 (providing that when valuing a business, the net income of a corporation should not include employees’ or officers’ salaries unless to do so reflects a distribution of profits, “double-dipping” occurs when the person’s future personal salary is part of the property determination and maintenance determination, and that a key-person analysis is not always applicable); Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (stating that the district court has “great discretion to choose one appraisal over another,” and, if there is a “basis in fact to support the use of the gross income valuation method,” this court will affirm, and describing the gross-income valuation method).

The district court first valued the property and then separately determined that husband’s income not only included his salary, but also other benefits, including subchapter S distributions and payment of personal expenses.  We have determined that whether subchapter S distributions are income is a question of fact.  Compare Roth v. Roth, 406 N.W.2d 77, 79 (Minn. App. 1987) (finding error where the district court, in determining maintenance and child support, failed to include profits from subchapter S corporation of which obligor was sole officer and shareholder), with Marx v. Marx, 409 N.W.2d 526, 529 (Minn. App. 1987) (affirming district court’s decision to exclude losses from three subchapter S corporations in which obligor was involved).  Because husband’s claimed expenses exceeded his claimed income, the district court looked at husband’s cash flow to determine whether he may have received additional income attributable to the nature of his business ownership.  The district court did not consider the potentially underreported income when determining the value of the property, but only when determining husband’s maintenance obligation.

In the district court’s second conclusion, it set husband’s maintenance obligation on an inverse scale with the property division so that as he provided more property to wife, his maintenance obligation would decrease.  Although an asset is not to be considered income if it already was considered property for purposes of property division, it is appropriate for the court to consider how the two complement each other.  See Nardini, 414 N.W.2d at 197-99 (explaining the delicate balance between a property division and spousal-maintenance obligation to put parties in equitable financial positions and that the court, when dividing property, can consider a party’s maintenance needs and the available maintenance award); O’Brien v. O’Brien, 343 N.W.2d 850, 852 (Minn. 1984) (explaining that rental income already capitalized and valued for property division cannot be used as income for maintenance); Walker v. Walker, 553 N.W.2d 90, 94 (Minn. App. 1996) (stating that pension benefits awarded as property cannot be included as income when determining maintenance until the obligor receives value from the benefits as required by the property division); Kruschel v. Kruschel, 419 N.W.2d 119, 122 (Minn. App. 1988) (showing a distinction for specific types of benefits such as pensions and rental income, which cannot be both property and income for maintenance purposes, at least absent such intent).

The district court considered the parties’ past and projected cash flow and also the value of the property.  The maintenance obligation comes from future income from the property, but does not reconsider or reapportion a particular asset.  The district court did not abuse its discretion.

III.

Husband contends that the district court abused its discretion by awarding excessive maintenance to wife.

When determining maintenance, the district court must consider the factors in Minn. Stat. § 518.552, subd. 1 (2000).  Essentially, the district court balances the financial needs of the spouse seeking maintenance against the resources of the spouse from whom maintenance is sought.  Maeder v. Maeder,480 N.W.2d 677, 679 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).  Only after the district court determines that a maintenance award is proper will it consider the factors of Minn. Stat. § 518.552, subd. 2 (2000), to determine the amount and duration of maintenance.  Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn. 1997).

Minn. Stat. § 518.552, subd. 2, provides that

[t]he maintenance order shall be in amounts * * * as the court deems just, * * * after considering all relevant factors including:

 

(a) the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party's ability to meet needs independently * * *;

 

(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability * * * of * * * becoming fully or partially self-supporting;

 

(c) the standard of living established during the marriage;

 

(d) the duration of the marriage * * *;

 

(e) * * * employment opportunities forgone by the spouse seeking spousal maintenance;

 

(f) the age, and the physical and emotional condition of the spouse seeking maintenance;

 

(g) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and

 

(h) the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property * * *.

 

“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).

            Husband argues that it was excessive for the district court to determine that wife needs approximately $6,000 per month for maintenance, in addition to almost $4,000 per month for the mortgage payments and that the district court improperly considered wife’s expenses and not her needs.  Husband does not challenge the duration of the maintenance award.  Wife argues that the mortgage-payment determination is more properly considered debt allocation than maintenance and that the district court did not err by awarding the maintenance amount.

            The district court made detailed findings as to the factors used to determine the appropriate amount of a maintenance award.  Wife’s argument that the mortgage-payment allocation is more akin to a property division’s allocation of debt than a maintenance obligation is persuasive.  See Stevens v. Stevens, 300 N.W.2d 1, 1 (Minn. 1980) (discussing the allocation of a home and its debt as part of a property division); Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984) (upholding the district court’s award of specific homes in the overall property division and stating that a party with greater assets may be allocated greater debts even if the other party is the one who receives the benefit from the property).  The relevant issue is whether, in light of the property division, the maintenance award was excessive.  Although the district court is to consider the obligee spouse’s needs, wife’s expenses help demonstrate wife’s needs and standard of living, and it was appropriate to consider them.  The district court analyzed wife’s expenses, standard of living, and resources before determining what her reasonable needs would be.

            Husband argues that it is not appropriate to consider tithing as a reasonable need.   The district court found that wife was religious before the marriage and the record demonstrates that she still is a very religious woman.  The district court did not err by considering tithing when determining wife’s reasonable needs.

The district court included wife’s expenses for attorney fees as one of her reasonable needs and also awarded her attorney fees.  The district court found that wife had $81,266 in unpaid fees and costs and only awarded her $22,000 for fees and $28,000 for costs incurred to retain the expert accountant.  Because a large balance remained unpaid, this was a reasonable need. 

The district court did not abuse its discretion when determining the amount of the maintenance award.

IV.

Husband argues that the district court erred by finding that husband dissipated the assets.  The district court is to order compensation to a party if, during or in contemplation of a dissolution, the other party uses assets other than for the necessities of life or in the usual course of business.  Minn. Stat. § 518.58, subd. 1a (2000).  The burden of proof is on the party alleging a dissipation.  Id.

            Husband argues that the issue was not litigated at trial, so he had no opportunity to rebut wife’s allegations and that the district court never conclusively determined that he underreported his income, but only assumed so when determining the maintenance issue.  Husband further argues that the district court’s determination of his dissipation is based on faulty methodology and that it would be inconsistent for him to have dissipated assets during the separation when he was giving wife extra funds.  Wife argues that the issue was implicitly litigated before the district court and that husband did not object to wife’s proposed findings, which included a statement about husband’s dissipation of assets.

            At trial, the parties discussed discrepancies in husband’s income, expenses, and cash flow, and wife included a finding regarding husband’s dissipation of assets in her proposed findings.  The district court determined that, because of husband’s cash flow and expenses, any funds unaccounted for were not used for living expenses.  See Griepp v. Griepp, 381 N.W.2d 865, 869 (Minn. App. 1986) (distinguishing between depletion of marital assets for living expenses and dissipation of assets in anticipation of property division).  Although the district court could not actually determine the manner in which funds were dissipated, it did not err by finding they were dissipated.  See Carrick v. Carrick, 560 N.W.2d 407, 413 (Minn. App. 1997) (affirming the district court’s dissipation findings although the record did not indicate how the party used the money because it was clear that a significant amount was spent in anticipation of the property division).

            Husband further argues that even if the district court’s finding that he dissipated funds was correct, the district court erred by not amending the finding with respect to the dissipation amount.  Husband is correct that originally the district court found that he dissipated $368,434 and did not change this amount after amending its findings.  If the district court used the same calculation method after it amended its findings, it would have found a dissipation amount of $307,788, as husband argues.  Husband argued to the district court that its judgment should be amended to reflect this difference.  The district court denied husband’s request and provided a detailed reason for the denial in the October 5, 2001, amended order.  It appears that the district court sought an equitable compromise by not considering wife’s new argument (and increasing the dissipation finding by $56,276) and by not relieving husband of his fiduciary duty (and decreasing the dissipation finding by $60,646).  Although the district court has broad discretion to determine the amount of dissipated funds, the reasons the district court provided are insufficient to support its award.  The district court abused its discretion by failing to amend its finding with respect to the amount of the dissipated funds.  We affirm the finding of dissipation, but modify the dissipated amount to $307,788.

Affirmed as modified.



*  The Honorable Daniel F. Foley, one of the founding members of this court, who continued to serve by appointment order from the supreme court after his retirement, fully participated in the consideration of this appeal.  Due to Judge Foley’s untimely death before the filing of the opinion, Chief Judge Toussaint has been assigned as a substitute and now joins the panel in issuing this decision.