This opinion will be unpublished and

may not be cited except as provided by

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






In re:


Wallace J. McCarthy, petitioner,





Judith J. McCarthy,



Filed February 18, 2003

Affirmed in part and reversed in part

Harten, Judge


Dakota County District Court

File No. F9-97-15663


Alvin L. Katz, Robert W. Due, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 4150 First Bank Place, 225 South Sixth Street, Minneapolis, MN 55402 (for appellant)


Leo Dorfman, Dorfman and Dorfman, Ltd., 1600 South Highway 100, Suite 336, Minneapolis, MN 55416 (for respondent)


††††††††††† Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D†† O P I N I O N




††††††††††† On this appeal of proceedings on remand, appellant challenges the district courtís findings as to loans respondent procured during the marriage, the nonmarital nature of part of respondentís tax refund, and the district courtís reliance on an exhibit submitted after trial as the basis for its valuation of respondentís nonmarital securities.† Because we see no error in the findings as to the loan and no prejudice to appellant in the district courtís reliance on the exhibit submitted after trial, we affirm in part; because the finding that funds borrowed to pay taxes were a marital debt precludes a finding that part of the tax refund was not marital property, we reverse in part.



Appellant Judith McCarthy and respondent Wallace McCarthy were married in January 1990; their marriage was dissolved in May 2000.† Appellant challenged some aspects of the dissolution judgment in this court, which affirmed as to valuation of assets and remanded for re-valuation of loans, for consideration of the propriety of the March 2000 exhibit and possible adjustment of the property distribution, and for clarification of the tax issue in light of the loan issue.† McCarthy v. McCarthy, No. C3-00-1650, 2001 WL 682726 (Minn. App. 19 June 2001).† Following hearings on the remanded issues, the district court issued amended findings of fact, conclusions of law, and order for judgment.† Appellant now challenges its determinations in regard to certain loans taken out by respondent during the marriage and to the admission of an exhibit after the record had been closed.[1]


1.†††††††† Loans


Whether property is marital or nonmarital is a question of law, but we defer to the district courtís underlying findings of fact.† Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).† At the date of valuation, the balance in respondentís loan account from one of his businesses was $6,609,932.† Respondent claimed that this was a marital debt, and appellant claimed it was non-marital.† On remand, the district court found that $2,334,108 was respondentís nonmarital obligation and that $4,275,824 was a marital debt.† Appellant challenges this finding, claiming that the funds respondent borrowed to pay spousal maintenance and interest on his property settlement payments to his former wife are his personal debt, not a marital debt, and that, because respondent borrowed funds to pay taxes, and those funds were considered a marital debt, the previous yearís tax refund should be included as a marital asset.†

††††††††††† As a threshold matter, the nature of the loan incurred to pay spousal maintenance is not properly before us, because this court has already affirmed the district courtís decision:

The district court refused to exclude the amounts used to pay maintenance from the marital debt, stating ďmaintenance payments normally are paid out of marital income.Ē† Appellant alleges this improperly makes her responsible for half the maintenance owed to respondentís third wife.† On this record, we cannot say this aspect of the district courtís ruling was an abuse of discretion.† See Minn. Stat. ß 518.54, subd. 3 (2000) (defining maintenance as payment from obligorís income or earnings, not property settlement of obligorís spouse).


McCarthy, 2001 WL 682726, at *4 n.2.†

The doctrine of law of the case applies when an appellate court has ruled on a legal issue and remanded to the lower court for further proceedings.† Issues determined in the first appeal will not be relitigated in the trial court nor re-examined in a second appeal.†


In re Trusteeship of Trust of Williams, 631 N.W.2d 398, 404 (Minn. App. 2001) (citation and quotation omitted), review denied (Minn. 25 Sept. 2001).† Accordingly, this issue is not properly before us.

A. †††††† Loan to Pay Interest

††††††††††† Respondent borrowed $1,941,440 to pay interest on a $4.5 million property settlement to his former wife.† The district court explained why this loan was treated as a marital debt.[2]

By borrowing from his business to pay marital and non-marital obligations, [respondent] was able to avoid liquidating or encumbering his assets.† Those assets continued to grow in value and produce income during the marriage.† [Appellant] realized the benefit of the income as it was earned and received the benefit of the asset growth in her share of the property division.† [Respondent] should not be charged for the interest expenses, since his borrowings from his company benefited both parties.† Consequently, the court deems the interest to be a marital expense.


††††††††††† Appellant argues that respondent could have paid the interest on the property settlement with funds from other sources.† Assuming this is true, appellant cites no case law stating that respondent was obliged to use other sources.† Appellant also argues that she did not benefit from an increase in value in the company from which respondent borrowed the funds, but she does not refute the district courtís finding that the value of this company ďdeclined by $220,076 during the marriage, and no marital interest has been created during the marriage.Ē† Appellant had no marital interest in the business because it decreased in value during the marriage, not because respondent borrowed from it.†

††††††††††† We conclude that the district court did not err in finding the $1,941,440 borrowed to pay the interest on respondentís former wifeís property award to be a marital debt.

B.††††††† 1998 Tax Refund

††††††††††† On remand, the district court found that the $5,396,000 respondent borrowed to pay his 1998 taxes was a marital component of the loan (or marital debt).† He received a tax refund of $267,059.[3]† The district court found only $130,247 of this amount was a marital asset.† We conclude that, because the entire $5,396,000 respondent borrowed to pay taxes was considered a marital debt, the entire tax refund should be considered a marital asset, and reverse this finding.[4]

2.†††††††† Nonmarital Securities Exhibit

††††††††††† The district court found that respondentís nonmarital securities had a value of $1,226,929.† This finding was based on an exhibit submitted after trial showing the value of the securities on the valuation date.† An exhibit received during trial, Exhibit 138, showed that, as of 31 December 1997, the securities had a value of $1,033,000.† Appellant argued that the district court erred in using a subsequent updated exhibit, and the issue was remanded.† In its opinion on remand, the district court said it ďreopened the entire trial record during the remand hearings and the exhibit was properly received and relied upon by the court.Ē†

Although the exhibits received during remand do not include this exhibit, the transcript of the remand hearing indicates that respondentís accountant had a copy of it with him when he testified:

Q.††††††† And you are prepared, or have you submitted, I canít recall, the valuation then for those securities on the [valuation] date?


A.††††††† I have a copy of it in front of me.

The accountant also testified that he had made up the exhibit when he was preparing for trial and ďthe error was one of it just didnít getóit didnít get submitted.Ē

Although the accountant referred to the exhibit and had it in his possession as he was testifying, appellantís attorney offered no objection to its unadmitted status.† ďFailure to object to the admission of evidence generally constitutes waiver of the right to appeal on that basis.Ē† State v. Vick, 632 N.W.2d 676, 684 (Minn. 2001) (citation omitted).† The district courtís opinion on remand shows an unequivocal belief that the exhibit was part of the record.† In light of the use of the exhibit at the hearing and the testimony about its late submission, that belief is understandable.

Moreover, appellantís chief objection to the district courtís reliance on the exhibit is that appellant had no opportunity to conduct cross examination concerning it.† But appellant had that opportunity:† her attorney cross-examined the accountant who had prepared the exhibit and had a copy of it.† While the district courtís use of an exhibit that had not been formally admitted was procedural error, the error did not prejudice appellant.† Entitlement to† a new trial on the basis of an evidentiary decision rests on the complaining partyís ability to show prejudice.† Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).††

The district courtís reliance on an exhibit that was inadvertently not entered into the record but had been presented in testimony was not unreasonable in a trial of this complexity.[5]† Given the absence of objection to a witnessís use of the unadmitted exhibit at the remand hearing and the absence of cross-examination when there was opportunity for it, appellant has failed to show prejudice.

We affirm the district courtís findings as to the loan procured to pay interest on respondentís property settlement with his former wife and the value of respondentís nonmarital securities, and we reverse the finding that only part of the 1988 tax refund was marital property.†

Affirmed in part and reversed in part.

[1] Although respondent filed a Notice of Review of all but three provisions of the 24 May 2002 Order, respondentís brief does not address any of those provisions.† Issues not briefed on appeal are waived.† Melina† v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).†

[2] Appellant misreads this courtís earlier opinion when she says that the treatment of interest was ďone of the primary errors the Court of Appeals detected in the original analysis.Ē† This court did not conclude that the treatment of interest was reversible error; it remanded for an explanation, which the district court provided.

[3] Respondentís accountant testified that it was respondentís consistent practice to overpay his taxes, making refunds inevitable: his 1999 refund was $411,072.

[4] We note that this increases the marital estate by $136,812 and respondentís equalizing payment by half that amount, or $68,406.

[5] In its prior opinion, this court ďnote[d] the magnitude of this record, as well as the number and complexity of the financial transactions involved in this case, and * * * applaud[ed] the district courtís efforts thus far.Ē† McCarthy, 2001 WL 682726, at *7.