This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In re the Marriage of:

Thomas L. Maloney, petitioner,





Anna Marie Maloney,




Filed December 3, 2002


Minge, Judge


Waseca County District Court

File No. F000698



Eric J. Mattison, Dow, Einhaus, Mattison & Carver, P.A., 202 North Cedar Street, P.O. Box 545, Owatonna, MN 55060 (for appellant)


Kelley R. Lorix, Mahoney, Dougherty and Mahoney, P.A., 801 Park Avenue, Minneapolis, MN 55404 (for respondent)


            Considered and decided by Minge, Presiding Judge, Willis, Judge, and Wright, Judge.


U N P U B L I S H E D  O P I N I O N


MINGE, Judge

            On appeal from a dissolution, appellant husband Thomas Maloney argues (a) the district court abused its discretion by awarding to respondent wife Anna Marie Maloney a one-half interest in his 401(k) plan; and (b) the award to wife of permanent maintenance was not supported by sufficient evidence.  Wife argues that (a) the district court erred in the valuation of the parties’ marital homestead; and (b) she is entitled to attorney fees on appeal.



The parties were married on March 21, 1964.  For more than 13 years before the commencement of the dissolution, the parties lived apart but were not legally separated.  Although the record is not clear as to specific dates, the parties lived together in the marital homestead in Waseca before 1987.  At some point after 1987, wife then moved from the parties’ marital home in Waseca to the Twin Cities area to pursue employment opportunities.  She lived first with her sister, next moved into an apartment, and then in 1998 purchased a condominium.  Wife testified that “for a period of time” after she moved to the Twin Cities, she came home to Waseca every weekend and on holidays.  During the time that the parties lived apart, they continued to file joint tax returns.  In addition, in 1998 the parties jointly signed a second mortgage on their Waseca home for $15,000.  Wife used the proceeds to purchase the condominium.  In 2000 husband also loaned her $8,000 to repay credit card bills.

The dissolution hearing commenced on September 27, 2001.  At that time husband was 59 years old and had been employed as an electrical maintenance technician in Waseca for Agri-Link Foods or its predecessor companies since 1977.  The district court found that his monthly income was $2,113.69 and his reasonable monthly expenses were $2,000.

During the parties’ marriage, wife was employed in various capacities, primarily in the retail-sales industry.  At the time of trial, wife was 57 years old and employed by J.C. Penney Company, Inc. as a sales associate.  The district court found that wife earned $8.53 per hour and that she had no training beyond high school.  The district court found that wife had a net monthly income of $1,388.88 and reasonable monthly expenses of $2,100.  The district court also found that she was completely disabled due to a recent surgery but that she was expected to return to full employment after a period of disability.

During his employment with Agri-Link, husband established and periodically made contributions to a 401(k) retirement account, which the district court valued at $47,125.  Husband testified he began contributing to the account in 1987, which was approximately the same time that wife moved to the Twin Cities.

The parties obtained an appraisal of the Waseca marital homestead; the value was found to be $154,000.  The district court, however, found the value of the home to be its property tax value of $117,400, and awarded the property to husband.  The court found the value of the condominium to be its property tax value of $80,700 and awarded the condominium to wife.

            After the trial, the district court awarded a one-half interest in the 401(k) account to each party and awarded wife $500 per month in permanent spousal maintenance.  Husband then moved for a new trial, or in the alternative, for amended findings of fact and conclusions of law.  The district court denied husband’s post-trial motion and this appeal followed.


Property Division

            Husband argues that the district court abused its discretion in dividing his 401(k) retirement savings account. 

District courts have broad discretion over the division of marital property, and [this court] will not disturb the division on appeal absent a clear abuse of discretion.


Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000) (citation omitted), review denied (Minn. Oct. 25, 2000).  For this court to conclude that the district court abused its discretion, the district court’s fact findings must be “against logic and the facts on [the] record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).  On appeal, we

must affirm the trial court’s division of property if it had an acceptable basis in fact and principle even though this court may have taken a different approach.


Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984) (citations omitted).

            Husband contends that the district court did not make the “just and equitable” division of property required by Minn. Stat. § 518.58, subd. 1 (2000).  Although section 518.58 requires an equitable distribution of property, a district court is not required to make an equal division of marital property.  White v. White, 521 N.W.2d 874, 878 (Minn. App. 1994).  Section 518.58 also provides that a court make its division based on a list of criteria, including

the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party.  The court shall also consider the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker.


Minn. Stat. § 518.58, subd. 1.

Husband points to the period of more than 13 years in which the parties were living apart.  Because wife was not living in the marital home, and because the accumulation in the account is solely the result of his employment, he contends that the district court should have awarded him the entire 401(k) account.

The district court found, and trial record allows, a characterization of the parties’ process of separation different from what husband would have us believe.  Although husband and wife lived in different homes, they were not legally separated.  Although the record is not clear for how long, for a period of time after wife moved to the Twin Cities, she continued to return to the marital home on weekends and holidays.  The parties continued to file joint tax returns.  In 1998, they jointly signed a second mortgage on the Waseca home to finance a condominium for wife.  In addition, husband loaned wife $8,000 to pay off credit card bills.  While we acknowledge that this may not be a typical marriage, we do not conclude that this is the type of separation that required the district court, as a part of the overall property division, to award the entire 401(k) account to husband.  We hold that the district court did not abuse its discretion in dividing the 401(k) account.

Spousal Maintenance

            Husband argues there was insufficient evidence supporting the district court’s award to wife of permanent spousal maintenance.  The determination of spousal maintenance is within the district court’s broad discretion.  Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989).  This court reviews the district court’s maintenance award under an abuse of discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997); Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  For this court to conclude that the district court abused its broad discretion with respect to an award of spousal maintenance, the district court’s fact findings must be “against logic and the facts on [the] record.” Rutten, 347 N.W.2d at 50 (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). 

A district court may award maintenance if it finds that the party seeking maintenance lacks sufficient property or is not able to provide adequate support herself.  In determining whether a maintenance award is appropriate, the court considers several factors, including the (1) financial resources of the spouse seeking maintenance; (2) probability that the spouse will be able to become fully or partially self supporting, given the party’s age and skills; (3) standard of living established during the marriage; (4) duration of the marriage; (5) loss of earnings by the spouse seeking maintenance; (6) age, physical and emotional condition of the spouse seeking maintenance; (7) ability of the spouse not seeking maintenance to meet needs while supporting the spouse seeking maintenance; and (8) contribution of each spouse in the acquisition of marital property, as well as the contribution of a spouse as a homemaker.  Minn. Stat. § 518.552, subd. 2.

The district court made several findings specific to the award of maintenance.  In particular, the court found that wife had most recently earned only $8.53 per hour, that she was temporarily disabled, and that considering her age, she would not likely return to school in order to find better-paying employment.  The district court also found husband was financially able to contribute to wife’s expenses.  Considering wife’s age and the extent of her education, the district court’s finding that she will be able to engage in employment that will allow her to support herself is not clearly erroneous.  The district court did not abuse its discretion in awarding $500 per month in permanent maintenance.

Homestead valuation

            Wife argues that the district court incorrectly determined the value of the Waseca marital homestead.  She argues that, instead of adopting the property-tax value of the homestead, the district court should have assigned the value determined by the parties’ appraisal.  The property-tax value of the homestead was $117,400 and the parties’ appraisal was $154,000.

Assigning property value is a finding of fact.  Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975).  An appellate court will not reverse a district court’s valuation of an asset unless it is “clearly erroneous on the record as a whole.”  Id. (citations omitted); see also March v. March, 435 N.W.2d 569, 572 (Minn. App. 1989) (stating that assigning a value to an asset is a question of fact, not to be set aside unless “clearly erroneous”).  An appellate court does not require the district court to be exact in its valuation of assets; “it is only necessary that the value arrived at lies within a reasonable range of figures.”  Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979) (citing Hertz, 304 Minn. at 145, 229 N.W.2d at 44).

The district court’s valuation is acceptable.  In what was presumably an effort to achieve parity, the district court adopted the property-tax valuation for both the Waseca homestead and the Edina condominium.  We note that this was done in the context of the overall property division.  We do not consider the difference between the appraisal and the property tax valuation of the Waseca homestead to be so unreasonable as to be clearly erroneous.

Attorney fees

In her brief, wife also requests that appellant be ordered to pay her attorney fees incident to this appeal because of her lack of resources and because husband has asserted frivolous arguments.  “A party seeking attorneys’ fees on appeal shall submit such a request by motion under Rule 127.”  Minn. R. Civ. App. P. 139.06, subd. 1.  Because she failed to file a Rule 127 motion for attorneys’ fees on appeal, we must deny her request.  See In re Marriage of Crockarell, 631 N.W.2d 829, 837 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).