This opinion will be unpublished and

may not be cited except as provided by

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






In re:


Kathy K. Kuduk, petitioner,





Christopher T. Kuduk,



Filed November 19, 2002

Affirmed; Motion Granted

Kalitowski, Judge


Mille Lacs County District Court

File No. F2001428


Gregory S. Walz, Walz Law Offices, 26 North Seventh Avenue, P.O. Box 1794, St. Cloud, MN 56302 (for respondent)


Richard J. Schieffer, Jane Van Valkenburg, Anderson Dove Fretland & Van Valkenburg, P.L.L.P., 5881 Cedar Lake Road, Minneapolis, MN 55416 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Christopher T. Kuduk contends that (1) the district court abused its discretion in awarding attorney fees to respondent; (2) the district court’s decision to treat intrafamily transactions as gifts rather than loans was clearly erroneous; (3) the evidence does not support the district court’s findings of fact and that those findings do not support the conclusions of law regarding classification of certain property as marital, division of marital property, valuation of the homestead, and division of marital debt; and (4) part of the appendix to respondent’s brief must be stricken.  We affirm and grant the motion to strike.




Appellant argues that the district court abused its discretion in awarding attorney fees because, under Minn. Gen. R. Pract. 119.02, respondent failed to accompany her request for attorney fees with a memorandum of law describing the calculation of the award sought and the basis for recovery.  We disagree.

Minn. Gen. R. Pract. 119

is not intended to limit the court’s discretion, but is intended to encourage streamlined handling of fee applications and to facilitate filing of appropriate support to permit consideration of this issue.


Gully v. Gully, 599 N.W.2d 814, 826 (Minn. 1999) (quotation omitted).   In Gully, the court held that it was not an abuse of discretion for the district court to waive the rule 119 requirement where the district court is familiar with the case and has access to the parties’ financial records.  Id.  Here, the affidavits, exhibits, and motions presented to the district court along with the testimony elicited at trial show that throughout the lengthy course of the dissolution proceedings, the district court was well informed of each party’s financial history and appellant’s conduct.

            Appellant also contends that his conduct did not unreasonably contribute to the length or expense of the litigation.  A court, “in its discretion,” may award “additional fees, costs and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.”  Minn. Stat. § 518.14, subd. 1 (2000).  An award of conduct-based attorney fees pursuant to Minn. Stat. § 518.14, subd. 1 (2000), may be based on “the impact a party’s behavior * * * had on the costs of the litigation regardless of the relative financial resources of the parties.”  Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991) (affirming award of attorney fees where appellant requested five separate continuances and engaged in improper discovery tactics) (citation omitted); see also Korf v. Korf, 553 N.W.2d 706, 711 (Minn. App. 1996) (affirming award of attorney fees where respondent took a noncooperative and obstinate position, denied responsibility for loans, and caused appellant to incur additional fees by breaking into homestead).  The district court’s decision regarding whether to award conduct-based attorney fees will not be disturbed on appeal absent an abuse of discretion.  Id.

            Here, the record indicates that the district court did not abuse its discretion in awarding conduct-based attorney fees to respondent.  Appellant stated in his initial answers to interrogatories that the monies given by his family were gifts.  But at trial appellant claimed the monies were loans that needed to be paid back.  This issue took up a large part of the proceedings.  Moreover, appellant’s conduct required respondent to bring a motion for ex parte relief to remove appellant from the home after he made threats.  Further, after the order was granted, appellant returned to the house and took property without respondent’s consent.  Finally, respondent was forced to obtain an order from the court in order to require appellant to cooperate with the refinancing of the home.  We conclude that the district court did not err in concluding that appellant’s lack of cooperation and inaccurate representations unreasonably frustrated and prolonged the proceedings.


            Apportionment of marital debts is within the district court’s discretion.  O’Donnell v. O’Donnell, 412 N.W.2d 394, 396 (Minn. App. 1987).  This discretion extends to deciding whether intrafamily transactions were gifts or loans.  See Novick v. Novick, 366 N.W.2d 330, 332 (Minn. App. 1985) (holding record supported trial court’s characterization of undocumented, unsecured, and interest-free “loans” from wife’s parents as gifts).  Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the district court to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01.

            Appellant argues that the district court incorrectly treated monies that his family gave him and his wife as gifts rather than loans and erred by not requiring respondent to assist in paying back the loans.  Specifically appellant contends his family provided:  (1) a loan of $7,750 for a 1994 Chevy Blazer; (2) a loan of around $14,000 for siding on the homestead; (3) a loan of $4,500 for a fishing launch; and (4) a loan of $9,500 for a boat.  The district court found that these payments were not loans, or in the alternative, if they were loans, the district court assigned repayment to appellant. 

            Sufficient evidence exists in the record to support the district court’s characterization of the money as gifts rather than loans.  Appellant’s mother and aunt, the two family members responsible for giving the money, never requested repayment.  Moreover, appellant did not list any loans in his answers to interrogatories when questioned about debts.  Interrogatories sent to appellant asked appellant about his financial obligations and monthly expenses, and at no time did appellant claim that loans were owed to members of his family.  Therefore, we conclude that the district court did not abuse its discretion in treating the monies as gifts rather than loans.


            On appeal from the denial of a motion for a new trial, only those matters specifically alleged in the motion to constitute error may be reviewed.  Schaust v. Town Board of Hollywood Township, 295 Minn. 571, 572, 204 N.W.2d 646, 648 (1973).  The purpose of a motion for a new trial is to allow the district court an opportunity to correct its own errors without subjecting the parties and the appellate courts to the time, inconvenience, and expense involved in an appeal.  Sauter v. Wasemiller, 389 N.W.2d 200, 202 (Minn. 1986).  The requirement that a motion for a new trial specify alleged errors allows a more considered decision by the district court and more effective appellate review.  Id. at 201-02.  A motion that does not adequately identify alleged errors does not alert the district court to those errors that, if corrected, could obviate the need for an appeal.  Amatuzio v. Amatuzio, 431 N.W.2d 588, 589 (Minn. App. 1988).  When a party fails to raise an issue before the district court in a motion for a new trial, review on appeal is limited to whether the evidence supports the court’s findings of fact and whether those findings support the conclusions of law.  Hackett v. State Dep’t of Natural Res., 502 N.W.2d 425, 426 (Minn. App. 1993). 

Because the issues of the classification of property, the valuation of the homestead, the division of marital property, and the division of marital debt were not properly raised to the district court in appellant’s motion for a new trial, review of these issues must be limited to whether the evidence supports the factual findings and whether the findings of fact support the conclusions of law.

1.         Classification of property

            All property acquired by either spouse after the marriage and before the valuation date is presumed to be marital property.  Minn. Stat. § 518.54, subd. 5 (2000).  Nonmarital property includes property acquired by one spouse that

(a) is acquired as a gift * * * made by a third party to one but not to the other spouse; (b) is acquired before the marriage; (c) is acquired in exchange for or is the increase in value of property which is described in clauses (a), (b), (d), and (e); (d) is acquired by a spouse after the valuation date; or (e) is excluded by a valid antenuptial contract.


Id.  A party seeking to establish that property is nonmarital must do so by a preponderance of the evidence.  Swick v. Swick, 467 N.W.2d 328, 330 (Minn. App. 1991), review denied (Minn. May 16, 1991). 

            Appellant argues that evidence was presented that established the nonmarital character of the following property:  (1) 1979 Chevy pick-up and plow; (2) guns; (3) 1995 Ford Ranger pick-up; (4) tools; and (5) an air compressor.  Appellant contends that these items were either owned by appellant prior to marriage, were gifts, or were acquired by appellant after the valuation date.  Appellant argues that since these items are really nonmarital property, they should not have been included in the division of marital property.

            In light of our limited scope of review, we conclude that sufficient evidence exists to support the district court’s decision.  Appellant stated in his own proposed findings of fact that he was “okay” with respondent’s proposed property division.  Because of that, the district court incorporated respondent’s proposed property division into the court’s findings.  The district court therefore classified the property based on the apparent agreement between the parties.  Thus, because the district court’s findings are supported by evidence in the record they must be affirmed.

2.         Division of property

            For similar reasons, we also affirm the district court’s division of property.  Again, appellant stated in his proposed findings to the district court that he was “okay” with respondent’s proposed division of property.  If appellant had objections to the division of property that respondent proposed and that the district court adopted, appellant should have raised the objections before the district court divided the marital property.  At the very least, appellant should have included that issue in his motion for a new trial to the district court.  Because appellant did neither, our review is limited.  Because the district court’s findings are supported by the record, we affirm the division of property.

3.         Valuation of property

            Appellant argues that the district court’s valuation of the home was based on three errors of law.  First, the district court reduced the equity value of the home for a projected realtor’s fee.  Second, the district court reduced the equity value of the home for a projected repair of the septic system.  Third, the district court used the date of separation as the valuation date.  Again, none of these arguments was presented to the district court in appellant’s motion for a new trial.  Therefore, the scope of review is limited to whether the evidence supports the district court’s findings of fact and whether those findings support the conclusions of law.

            Here, appellant’s proposed findings requested a sale of the homestead.  Thus, there is evidence to support the deduction for a realtor’s fee.  And the reduction for repair of a septic system was based on an estimate given by a repairman.  Thus, it also has support in the record.  Finally, a court may choose a valuation date other than the day of the initially scheduled prehearing settlement conference if “the court makes specific findings that another date of valuation is fair and equitable.”  Minn. Stat. § 518.58, subd. 1 (2000).  Here the district court chose January 2001 as the valuation date because that was the date when the parties divided their incomes and separated.  Given the broad discretion the district court has in setting the valuation date and our limited scope of review, we conclude that the valuation date selected by the district court was not an abuse of discretion.

4.         Apportionment of marital debt

            Appellant contends that the district court erred in allocating a nonmarital debt to appellant.  We disagree.  Because the debt was incurred on January 31, 2001, right before the valuation date, it can be classified as a marital debt.  Moreover, the district court “has the discretion to award debts to one party only.”  Meyer v. Meyer, 375 N.W.2d 820, 828 (Minn. App. 1985) (citation omitted), reviewdenied (Minn. Dec. 30, 1985).  We thus conclude the evidence supports the district court’s findings and these findings support the court’s conclusion of law.


            An appendix to a brief may only contain portions of the record.  Minn. R. Civ. App. P. 130.01.  Further, the record on appeal is only “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.”  Minn. R. Civ. App. P. 110.01.  “Only matters before the trial court may be considered by the reviewing court.”  In re Conservatorship of Foster, 535 N.W.2d 677, 684 (Minn. App. 1995), aff'd, 547 N.W.2d 81 (Minn. 1996).  An appellate court “may not consider matters not produced and received in evidence below.”  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (citations omitted).  “The court will strike documents included in a party’s brief that are not part of the appellate record.”  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992) (citation omitted), aff'd, 504 N.W.2d 758 (Minn. 1993).  But this court has stated that there are exceptions to this rule.  “‘[A]ppellate courts, in order to sustain verdicts and judgments, will permit omissions to be supplied by documentary evidence of a conclusive nature.’”  Chahla v. City of St. Paul, 507 N.W.2d 29, 33 (Minn. App. 1993) (quoting Mattfeld v. Nester, 226 Minn. 106, 123, 32 N.W.2d 291, 303-04 (1948), review denied (Minn. Jan. 20, 1994)) .

            Here, the documents at issue cannot be considered part of the record because they were not introduced into evidence.  Moreover, they are unnecessary to sustain the verdict. Therefore, we grant appellant’s motion to strike pages 22 through 27 of the appendix to respondent’s brief.

Affirmed; motion granted.