This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
In re the Marriage of:
Phillip Otto Readio, petitioner,
Theresa Myrphy Kalaher Readio,
Scott County District Court
File No: F-00-22182
Jeffrey L. Loftness, Esq., Loftness & Associates, P.A. 327 Marschall Road, Suite 370, Shakopee, MN 55379 (for respondent)
Theresa K. Readio, 4029 West 125th Street, Savage, MN 55378 (pro se appellant)
Considered and decided by Wright, Presiding Judge, Randall, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a judgment dissolving the parties’ marriage, appellant-wife argues that the district court abused its discretion (a) by awarding appellant four years temporary maintenance rather than permanent maintenance; (b) in characterizing, valuing and distributing the marital estate; (c) by not ordering an upward departure from the child support guidelines based upon the special needs of the children; (d) by admitting two checks into evidence; (e) by admitting and considering evidence concerning appellant’s religious practices; (f) by denying appellant restitution under the Crime Victims and Domestic Abuse Acts; and (g) by not awarding appellant a substantial portion of her claimed attorney fees. We affirm.
Appellant, age 45, and respondent, age 46, were married on May 28, 1977, in Englewood, Colorado. The parties have two minor children, N.A.R., age 17, and R.T.R., age 16. Although R.T.R. has been diagnosed with Attention Deficit Disorder (ADD) and N.A.R. has been diagnosed with TMJ (a jaw-related disorder), both children are active in school related activities. Respondent is an electrical engineer currently employed by Honeywell International and earning an annual gross income of $112,000. Appellant is an attorney engaged in the private practice of law and earning an annual gross income of approximately $25,000.
The parties separated on October 9, 2000, following a domestic abuse incident, and after nearly 25 years of marriage, the parties were divorced on February 21, 2002. The district court found the domestic abuse created a rebuttable presumption that it was not in the best interests of the children to award joint legal custody to the parties. Additionally, in connection with the Order for Protection, appellant sought reimbursement for lost income in the sum of $1,258.75, a $25 transcript, and the cost incurred from changing the locks totaling $124.15. The district court found that it was not reasonable to charge these items to respondent.
During the course of their marriage, the parties and their children became accustomed to a comfortable middle-class lifestyle. Respondent’s income allowed appellant to work part time, attend Mass each morning, and be readily available to meet the children’s needs. At the time of the divorce, the district court determined appellant was unable to provide adequate self-support. However, considering appellant’s skills as a lawyer had not become outmoded, the homestead mortgage requiring monthly payments of $2,100 would be paid off in four years, and the respondent’s ability to pay, the district court awarded temporary maintenance to appellant for a period of 48 months.
The parties accrued a considerable amount of assets during the course of their marriage. Although the parties agreed on the distribution of most of the marital property, the parties disagreed on the value of the personal property found within the homestead. Respondent valued the personal property found within the homestead at $17,957. In contrast, appellant valued the same property at $9,139.
Additionally, the parties disagreed on the value of the other spouse’s business. Respondent valued the personal property, including equipment and inventory of his business at $13,635 and the personal property, including law office equipment and furnishings of appellant’s private practice at $4,388. Appellant valued the property and assets of her law practice at $3,109, and the property and assets of respondent’s business at $59,745. The district court placed the value of the property located within the homestead at $9,139, the value of the property and assets of respondent’s business at $13,635, and the value of the property and assets of appellant’s private law practice at $3,109.
Finally, the parties incurred a Discover-Credit-Card debt in the sum of approximately $11,112. This amount represented primarily consolidated household and law-office debt. The district court determined that based upon the circumstances, it was fair to charge appellant with this debt.
Appellant argues the district court erred when it declined to award appellant permanent maintenance and instead awarded her four years’ temporary maintenance. This court will not reverse a district court’s determination of spousal maintenance award absent an abuse of discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). The district court’s discretion is examined in light of the controlling statutory guidelines contained in Minn. Stat. § 518.552 (2002). Id. 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 record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citations omitted).
In Minnesota, appellate courts uphold findings of fact unless they are “clearly erroneous.” Minn. R. Civ. P. 52.01. A finding is clearly erroneous if the reviewing court is left “with the definite and firm conviction that a mistake has been made.” Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987). Evidence is viewed in the light most favorable to the district court’s findings and this court defers to the district court’s credibility determinations. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000). Although the district court, as the fact-finder, is charged with reconciling conflicting evidence, the fact “[t]hat the record might support findings other than those made by the trial court does not show that the court’s findings are defective.” Id. at 474 (citations omitted).
Appellant argues the court clearly erred by finding she was deliberately underemployed, and imputing additional income to her, simply because she was an attorney, for the purpose of determining reasonable maintenance. We disagree. The district court never found that appellant is deliberately underemployed, never found that she was acting in bad faith, and did not “impute” income to her. To the contrary, the court recognized that by agreement of the parties, appellant was afforded the opportunity to work just part time to be available for the needs of the minor children. The court recognized this and found that presently, appellant is unable to provide adequate support for herself and, thus, awarded her maintenance. The issue is simply whether it should be temporary or permanent.
The record supports the court’s
finding that appellant will become self-supporting. Appellant is a lawyer, still practices law part time, and the
record supports the finding that, “her skills as an attorney have not become
outmoded.” The court recognized that in
a few years the children will no longer be in school, and appellant will not
need to limit her work
to be available to her children. The district court’s recognition of appellant’s present needs and economic future is reasonable.
When addressing spousal maintenance, the district court must consider “the financial resources of the party seeking maintenance * * * and the party's ability to meet needs independently.” Minn. Stat. § 518.552, subd. 2(a) (2002). Here, the court calculated appellant’s ability to meet her expenses based on the monthly child support and the spousal maintenance. After considering these factors, along with the children’s ages and appellant’s testimony regarding her law practice, the court determined that appellant will become self-supporting in a few years. The court did not impute income to appellant, and did not find bad faith underemployment. Appellant mistakenly views the court’s findings as to her present income and her potential future income as equating to a finding that she is, at this time, voluntarily and in bad faith, underemployed. The district court made no such finding, nor do we. Appellant and respondent worked out a rational agreement between two working professionals to provide for the needs of their children. It is not unreasonable for the district court to assume that as the children become young adults, appellant will become able to continue her present career and work more hours.
Appellant argues the court abused its discretion when it awarded four years of temporary maintenance rather than permanent maintenance. To establish the amount and duration of an award of spousal maintenance, the district court must consider and make findings on the statutory factors outlined in Minn. Stat. § 518.552. Reinke v. Reinke, 464 N.W.2d 513, 514-15 (Minn. App. 1990). These factors include: (a) the financial resources of the party seeking maintenance; (b) the time necessary for the party seeking maintenance to acquire education or training; (c) the standard of living established during the marriage; (d) the duration of the marriage; (e) the contributions and economic sacrifices of a homemaker; (f) the age and physical and emotional condition of the spouse seeking maintenance; (g) the resources of the spouse from whom maintenance is sought; and (h) the contribution of each party to the amount or value of the marital property. Minn. Stat. § 518.552, subd. 2 (2002). The issue is, in essence, a balancing of the recipient’s need against the obligor’s ability to pay. Erlandson, 318 N.W.2d at 39-40. Thus, spousal maintenance is determined on the facts of each case, and no single fact is dispositive. Id. at 39.
In determining the amount and duration of the spousal maintenance in the present case, the district court considered the appropriate factors. The court found that appellant is presently unable to meet her current monthly expenses. However, the court recognized that the homestead would be paid off within the next four years and that both children would be emancipated in that time period. In addition, the court found that appellant is a licensed attorney operating her own firm, that she is in good health, capable of working full time, and her skills as a lawyer have not become outmoded. The court recognized that the parties were accustomed to a fairly comfortable standard of living during their marriage. The court made note of the parties’ considerable assets, and of appellant’s capabilities of working part time now, and up to full time in the future.
The district court also found that even though appellant was the primary homemaker and caregiver, she was rarely absent from her employment. The court considered that during the marriage, appellant was able to attend law school and establish her legal career. Although appellant’s partial loss of earnings was a function of her working part time to raise the children, the court found that based upon her legal background and experience, appellant has the ability to become financially independent in approximately four years. The court found that respondent has the ability to pay temporary maintenance and that both parties contributed significantly to the housekeeping duties. Based upon the factors set forth in Minn. Stat. § 518.552, subd. 2(a)-(h), the trial court awarded appellant temporary maintenance for a period of 48 months.
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 record.” Rutten, 347 N.W.2d at 50 (citation omitted). The district court made sufficient findings based on evidence in the record to show that the court considered and applied all the relevant statutory factors to the facts of this case when it ordered temporary spousal maintenance. The district court did not clearly err in either its findings or abuse its discretion in awarding temporary rather than permanent maintenance.
Next, appellant challenges the trial court’s characterization, valuation, and division of property. “District courts have broad discretion over the division of marital property.” 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 findings of fact must be “against logic and the facts on record.” Rutten, 347 N.W.2d at 50 (citation omitted). On review, this court must affirm the district court's property distribution “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). The record must be reviewed in the light most favorable to the district court's findings. Lossing v. Lossing, 403 N.W.2d 688, 690 (Minn. App. 1987).
Under Minnesota law, the district court must make a “just and equitable division of the marital property.” Minn. Stat. § 518.58, subd. 1 (2002). A property division need not be mathematically equal as long as it is just and equitable. Vinnes v. Vinnes, 384 N.W.2d 589, 592 (Minn. App. 1986).
Appellant again raises a myriad of issues in her challenges to the trial court’s characterizing, valuing, and allocating the various items of the marital estate. However, a significant amount of the asset division was stipulated to by the parties and entered into the record early in the trial proceedings. Stipulations in dissolution cases are favored by the courts because they simplify and expedite litigation. Anderson v. Anderson, 303 Minn. 26, 31, 225 N.W.2d 837, 840 (1975). “Stipulations are therefore accorded the sanctity of binding contracts.” Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997) (citing Ryan v. Ryan, 292 Minn. 52, 55, 193 N.W.2d 295, 297 (1971)). Nevertheless, “if the stipulation was improvidently made and in equity and good conscience ought not to stand,” it may be vacated. John v. John, 322 N.W.2d 347, 348 (Minn. 1982) (quotation omitted).
There is nothing in the record that shows the trial court failed to divide the property in a just and equitable manner. Respondent was awarded marital property with a total value of $244,910, less undetermined debt, and appellant was awarded marital property with a total value of $265,981, less the credit card debt of $11,112. In addition, the court considered the condition and liquidity of the property based upon the exhibits and testimony of the parties, and distributed the property in accordance with the parties’ stipulations. The court established in the findings of fact that the parties had agreed to the distribution of the retirement incomes.
Appellant contends the district court erred by adopting the valuations respondent provided for his property. An assignment of value, which can never be more than an approximation, “should be sustained if it falls within the limits of credible estimates made by competent witnesses even if it does not coincide exactly” with any given estimate. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). These findings should not be set aside unless they are clearly erroneous. Id. Both parties provided estimates regarding the value of certain pieces of property. As the trier of fact, the court made its determinations regarding the value of the property. The court’s valuations have a basis in fact, are not patently wrong on their face, and are based on a district court’s assessments of credibility. The district court did not clearly err by adopting the valuations provided by respondent.
Appellant argues further that the court erred by improperly imputing income from the office property awarded to her, and improperly including insurance proceeds on the homestead awarded to appellant. First, as discussed earlier, the court did not impute income to appellant. Second, the parties agreed that appellant would be awarded insurance proceeds valued at $5,772, and that appellant would be awarded the homestead with a net value of $168,539. The court accepted the parties’ testimony and documentation regarding the homestead. The court's valuation of the homestead is easily within the limits of credible estimates made by competent witnesses.
Finally, appellant claims the court erred by improperly allocating to her $11,112 of credit card debt. A district court has broad discretion in apportionment of debts, and will be reversed only for abuse of discretion. Jones v. Jones, 402 N.W.2d 146, 149 (Minn. App. 1987). The district court heard specific evidence regarding the credit card debt pertaining to consolidated household and law-office debt. It engaged in significant discussion with respondent about his corporation’s liability for tax debts, and the fact that appellant will be held harmless for any such liability. Based upon the evidence and testimony presented at trial, the court determined that it was fair to allocate the Discover-Credit-Card debt to appellant. The district court did not abuse its discretion in awarding the credit-card debt to appellant.
III. Child Support
Appellant contends that the district court should have ordered an upward deviation in child support. A district court has broad discretion to provide for the support of the parties’ children, and abuses that discretion only when it sets child support in a manner that is against logic and the facts on the record. Rutten, 347 N.W.2d at 50.
According to Minn. Stat. § 518.551, subd. 5(i) (2002), the statutory child support guidelines create a rebuttable presumption that the prescribed amount is owed. See Rogers v. Rogers, 622 N.W.2d 813, 819 (Minn. 2001) (citing Minn. Stat. § 518.551, subd. 5(i)). To impose an upward deviation from the child support guidelines, the court must determine that the deviation best serves the interests of the children. Id. A party who requests departure from the child support guidelines should provide evidence regarding the parties' financial situations, the child's needs, and standard of living to which the child is entitled that would justify departure. Minn. Stat. § 518.551, subd. 5(c).
Appellant argues that due to the special needs of the children, the district court should have ordered an upward deviation in child support. However, appellant fails to provide any evidence that would justify the departure. The district court specifically noted that neither ADD nor TMJ constitutes “special needs” that would require an upward departure. In accordance with Minnesota law, the court ordered respondent to continue to maintain medical insurance coverage for both children. See Minn. Stat. § 518.171, subd. 1(a)(2) (2002) (stating the court shall order the parent with the better health plan to name the children as beneficiaries on an insurance plan that is available to him on a group basis or through an employer or union). The district court did not abuse its discretion by declining to award an upward deviation in child support.
IV. Evidence (Documents)
Appellant claims the district court abused its discretion by receiving into evidence unauthenticated copies of documents that were vague and potentially prejudicial. Absent erroneous interpretation of law, the question of whether to admit or exclude evidence is within the district court’s discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997). “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.” Id. at 46 (quotation omitted).
Appellant contends the documents were prejudicial because they insinuated that appellant misappropriated $18,000 in checks, thus affecting her credibility in the eyes of the court. Appellant has failed to demonstrate any prejudicial error. See Custom Farm Servs, Inc. v. Collins, 306 Minn. 571, 572, 238 N.W.2d 608, 609 (1976) (stating error will not be presumed). The documents were offered in support of respondent’s non-marital claim. The claim was ultimately denied by the trial court. There is no evidence to support appellant’s assertion that the admission of the evidence prejudiced her for the remainder of the case.
V. Evidence (Religion)
Appellant argues next that the district court abused its discretion by admitting evidence of, considering, and referring to appellant’s religious practices in connection with maintenance, child support and property division issues. Absent an erroneous interpretation of law, the question of whether to admit or exclude evidence is within the district court’s discretion. Kroning, 567 N.W.2d at 45-46. For improper evidentiary rulings, the complaining party must demonstrate prejudicial error. Id. at 46 (quotation omitted).
Generally, to preserve issues for appeal that arise at trial, including evidentiary rulings, counsel must make timely objections and move for a new trial. Sauter v. Wasemiller, 389 N.W.2d 200, 202 (Minn. 1986). Failure to do so precludes review. See Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 660 (Minn. 1987). Appellant failed to object to the admission of evidence regarding her religious practices. In fact, it was appellant who offered the testimony regarding her religious practices. Accordingly, by failing to object to the admission of evidence concerning her religious practices, appellant waived the issue on appeal. Town of Forest Lake v. Minnesota Mun. Bd., 497 N.W.2d 289, 290 (Minn. App. 1993), review denied (Minn. April 29, 1993).
Appellant argues that a domestic-assault victim has a right to receive restitution once the accused is convicted. The Minnesota Domestic Abuse Act stipulates that upon notice and a hearing, a court may order an abusing party to pay restitution to the petitioner. Minn. Stat. § 518B.01, subd. 6(a)(10) (2002). An order for restitution may include, but is not limited to, “any out-of-pocket losses resulting from the crime, including medical and therapy costs, replacement of wages and services * * *.” Minn. Stat. § 611A.04, subd. 1(a) (2002). Restitution is not to be awarded loosely as a form of punitive damages. State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984). Restitution is appropriate where the defendant's conduct, for which he was convicted, directly caused the victim’s losses. State v. Olson, 381 N.W.2d 899, 901 (Minn. App. 1986).
Appellant contends that she is entitled to restitution for costs incurred by changing the locks. District courts have broad discretion in deciding whether to award restitution. State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999). Respondent’s keys were confiscated when he was arrested. Respondent also testified that he was at appellant’s place of employment only to plow the snow, a service appellant requested through respondent’s attorney. Thus, the court determined that the locks were changed unnecessarily.
Appellant asserts that she is entitled to restitution for a $25 transcript. The court found that appellant did not hire an attorney and is thus not entitled to restitution for the transcript. Furthermore, appellant requested reimbursement for lost income in the sum of $1,258.75 (13.125 hours at $95 per hour). After a lengthy discussion on the record, the court determined that it was not reasonable to award appellant restitution for her lost wages. The court noted that appellant works part time and does not charge by the hour. Based upon the district court’s findings, the court did not abuse its discretion by denying restitution to appellant.
VII. Attorney Fees
Finally, appellant claims the district court’s award to her for attorney fees was unreasonably low, and she should have been awarded a substantial portion of her attorney fees at trial. An award of attorney fees under Minn. Stat. § 518.14, subd. 1, “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.” Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).
In a dissolution proceeding, the district court may require one party to pay reasonable need-based attorney fees for the other after considering the financial resources of both parties. Minn. Stat. § 518.14, subd. 1 (2002). Attorney fees may also be awarded if the court finds a party unreasonably delayed the proceeding. Id. However, an attorney fees determination will rarely be overturned on appeal. Burns v. Burns, 466 N.W.2d 421, 424 (Minn. App. 1991).
Appellant argues that based upon respondent’s conduct during the dissolution proceeding, the district court should have awarded appellant a substantial portion of her attorney fees. Upon reviewing the evidence regarding appellant’s request for attorney fees, and considering all the facts of the case, the district court awarded appellant $1,000 in attorney fees. On this record, the district court did not abuse its discretion; the court’s award of attorney fees to appellant was reasonable.
Appellant requests an award for her costs on this appeal. Minn. R. Civ. App. P. 139.06 dictates that a party seeking attorney fees on appeal “shall submit such a request by motion under [Minnesota] Rule [of Civil Appellate Practice] 127.” Johnson v. Johnson, 627 N.W.2d 359, 364 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001) (quoting Minn. R. Civ. App. P. 139.06). In Johnson, the appellant in a dissolution action sought attorney fees incurred on appeal. Id. The court held that because the appellant did not submit a request for attorney fees by motion under the Minnesota Rules of Civil Appellate Practice, her request for attorney fees on appeal was denied. Id. at 364-65.
Here, appellant did not submit a request for attorney fees by motion as prescribed by Minnesota Rule of Civil Appellate Practice 127. Appellant’s request for appellate attorney fees is not properly before this court. We affirm the district court’s order in its entirety.