This opinion will be unpublished and

may not be cited except as provided by

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






In re: Sandra Lee Bateman, petitioner,





Dale George Bateman,



Filed May 13, 2003

Affirmed in part, reversed in part, and remanded

Stoneburner, Judge


Becker County District Court

File No. F501899


James W. Shoemaker, Shoemaker & Ziegler, 1009 Lake Avenue, Box 1026, Detroit Lakes, MN 56502 (for respondent)


Carol Grant, Kurzman, Grant & Ojala, Suite 403, 219 Southeast Main Street, Minneapolis, MN 55414 (for appellant)


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

U N P U B L I S H E D  O P I N I O N



            Dale George Bateman (husband) appeals from a dissolution judgment arguing that the district court abused its discretion by (1) requiring him to pay a disproportionate amount of the parties’ debts; (2) awarding respondent Sandra Lee Bateman (wife) permanent maintenance; and (3) admitting various testimony and exhibits that wife had failed to produce in discovery.  Because the district court did not abuse its discretion, we affirm the district court’s debt apportionment.  But because the district court failed to make findings of fact regarding husband’s net monthly income, reasonable monthly expenses, and ability to pay maintenance, and did not consider the effect of nonretroactive social security payments on wife’s need for maintenance, we reverse the award of maintenance and remand for additional findings. 



            On appeal from a judgment where there has been no motion for a new trial, the only questions for review are whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment.  Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 117 (Minn. App. 2001); Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989).  On appeal, we will not alter a district court’s finding of fact unless the finding is “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.  When determining whether findings are clearly erroneous, the appellate court views the record in the light most favorable to the trial court’s findings.  Also, appellate courts defer to trial court credibility determinations.


Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (quotations and citations omitted).  Additionally, “[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).

1.         Evidentiary issues

            Husband makes a number of challenges to various evidentiary rulings made by the district court.  The supreme court has stated that

“matters such as trial procedure, evidentiary rulings and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error.”  This rule applies whether trial is to the court or a jury.


Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 56 (Minn. 1993) (quoting Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986)).  Because husband did not seek a new trial, his evidentiary challenges are not properly before this court and will not be addressed.

2.         Apportionment of debt

            Husband and wife had been married for 18 years and separated for 15 years at the time wife petitioned for marriage dissolution.  The district court made each party responsible for the debts he or she had incurred during the separation.  Husband is responsible for $18,050.03, which includes $5,500 for dissolution-related attorney fees, and wife is responsible for $569 for debts she incurred to a telephone company and a jewelry store.  Husband alleges that because wife was awarded the parties’ only major asset, a mobile home valued at between $3,000 and $5,900, making him responsible for so much of the debt results in an inequitable division of marital property.  See Minn. Stat. § 518.58, subd. 1 (2002) (requiring an equitable division of marital property); Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986) (stating apportionment of marital debt to be treated as distribution of property), review denied (Minn. May 29, 1986); see also Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984) (stating district court’s division of property is not altered absent abuse of discretion).  Husband testified that an unspecified portion of the debt in his name was generated in caring for the parties’ children while they were minors and in paying a portion of wife’s expenses, which he continued to do until shortly before trial.

            “[A]ttorney fees incurred in a dissolution are not part of the marital estate, and thus are not apportionable as property in a property settlement.”  Bone v. Bone, 438 N.W.2d 448, 452 (Minn. App. 1989) (citation omitted).  And a district court may consider the parties’ relative earning capacities when it apportions debts.  See Kreidler v. Kreidler, 348 N.W.2d 780, 783 (Minn. App. 1984) (affirming award of more of the property to one party and most of the debts to the other because, among other things, party to whom debt was awarded had greater earning capacity).  Here, the district court found that husband has a greater earning capacity than wife.  We conclude that the district court did not abuse its discretion by making each party responsible for the debts incurred by that party during the separation and that the debt division does not render the division of marital property inequitable.  The district court’s apportionment of debt is affirmed.

3.         Maintenance award

            The district court awarded wife $178.33 permanent monthly maintenance.  This amount is the amount of monthly financial assistance that husband voluntarily provided wife during the parties’ separation and is apparently based, at least partially, on his testimony that, but for the dissolution of marriage, he would have continued to provide wife with that amount of support.

            Absent an abuse of the district court’s “wide discretion” in awarding maintenance, its determination “is final.”  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  An abuse of discretion occurs if the district court resolves the matter in a manner that is “against logic and the facts on the record.”  Rutten, 347 N.W.2d at 50.  An appellate court will not disturb a maintenance award if the award “has a reasonable and acceptable basis in fact and principle.”  DuBois v. DuBois, 335 N.W.2d 503, 507 (Minn. 1983).  Minn. Stat. § 518.552, subds. 1, 2 (2002) list factors to be considered in setting the amount and duration of a maintenance award.  But no single factor is dispositive, and the issue is basically the recipient’s need balanced against the obligor’s financial condition.  Erlandson, 318 N.W.2d at 39-40. 

            Husband first argues that wife is not entitled to an award of permanent maintenance because, in her petition, she asked only that maintenance be reserved.  Wife did not amend the petition and, husband asserts, she did not formally request maintenance until closing argument.  But the record reflects that the issue of maintenance was tried and argued to the district court without objection from husband. 

            When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings [and] * * * amendment to the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of a trial of these issues.


Minn. R. Civ. P. 15.02 (emphasis added).  We conclude that the issue of maintenance was litigated by consent, that a formal amendment of wife’s pleadings was not necessary under rule 15.02, and that the lack of an amendment is not fatal to the district court’s ruling on maintenance.

            Husband next argues that he was prejudiced by not being able to acquire the evidence necessary to address wife’s maintenance request.  But this lack-of-evidence theory was not presented to the district court and is therefore not properly before this court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating party may not, on appeal, switch to a new theory on an issue).

            Husband asserts that wife’s failure to request maintenance in her petition shows that she does not need maintenance and that this fact, combined with wife’s lack of credibility when testifying about her need for maintenance at trial, renders the maintenance award defective.  Although wife admitted that she lied when she testified that she voluntarily quit a job from which she was, in fact, fired, that false testimony does not necessarily render all of her additional testimony incredible, as husband asserts.  To the extent that the district court explicitly or implicitly found wife’s testimony credible, we defer to the district court’s credibility determinations.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  And the district court found that wife only changed her request from a reservation of maintenance to a request for maintenance because after the petition was filed, husband stopped making payments he had made on wife’s behalf throughout the parties’ separation.  Husband’s argument that failure to plead permanent maintenance demonstrates wife’s lack of need is without merit.[1]

            The district court found that given the determination by an administrative law judge that wife lacks the capacity to perform more than a restricted range of sedentary work and has no transferable work skills, wife’s part-time work three days per week, working eight hours per week is the maximum amount of work that she can do based on her current physical limitations.  Husband argues that wife can work 40 hours per week based on a recommendation by wife’s doctor.  Husband is essentially attacking the district court’s implicit credibility determinations.  Based on the record and deferring to the district court’s credibility determinations, we conclude that the finding is not clearly erroneous.

            The district court found that wife’s net monthly earnings are $258 to $301, not including $173 in social security disability payments.  Husband argues that the district court erroneously reduced the amount of social security payments by concluding that a portion of the payments received were retroactive payments and that if the district court had correctly determined the nonretroactive portion of her social security payments, her monthly income, even if she only works 8 hours per week, will exceed what the district court found to be her reasonable monthly expenses.  On the record before us, it is not possible to determine the merits of this claim.  On remand, the district court shall re-examine its determination of wife’s social security income in assessing her need for maintenance.

            The district court found that wife’s reasonable monthly expenses are $852.  Husband challenges this amount based on wife’s check register and his claim that wife’s budget contains improper items.  Reasonable monthly expenses for maintenance purposes are not measured by actual expenditures, but by the marital standard of living.  Minn. Stat. § 518.552, subds. 1, 2(c) (2002); see Chamberlain v. Chamberlain, 615 N.W.2d 405, 409–12 (Minn. App. 2000) (discussing importance of marital standard of living when addressing maintenance recipient’s reasonable monthly expenses), review denied (Minn. Oct. 25, 2000).  Husband has failed to show that the district court’s finding of wife’s reasonable monthly expenses requires a remand.  See Minn. R. Civ. P. 52.01 (stating findings of fact are not set aside unless clearly erroneous); see also Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis error).

            Husband correctly notes that the district court’s failure to make findings regarding his net monthly income and his reasonable monthly expenses makes the maintenance award defective.  The district court found husband’s gross income in 2001 to be $18,748.81, but absent findings of husband’s net income, monthly expenses and ability to pay maintenance, the balancing of wife’s need and husband’s financial condition that is necessary to properly evaluate a maintenance award cannot occur.[2]  See e.g., Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989) (remanding maintenance where district court found parties’ incomes but failed to find their expenses and obligor’s ability to pay).  Also, absent findings regarding husband’s net income, expenses and ability to pay, future motions to modify maintenance will be difficult to evaluate.  See generally Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997) (noting, in context of stipulated maintenance award, that stipulated judgment sets baseline circumstances against which claims of changed circumstances are evaluated).  We reverse and remand the maintenance determination for the district court to address husband’s net income, reasonable monthly expenses, and ability to pay maintenance and for a reexamination wife’s nonretroactive social security payments, which may affect the determination of need for maintenance.

            Affirmed in part, reversed in part, and remanded.


[1] Husband also asserts that a permanent award is unfair because he will have to pay her for the rest of her life.  But this argument misunderstands the law of permanent maintenance.  See Poehls v. Poehls, 502 N.W.2d 217, 218 (Minn. App. 1993) (stating “permanent maintenance” is a term of art placing burden on obligor to show that maintenance should be modified due to changed circumstances).

[2] We reject husband’s argument that if he cannot meet his own expenses he cannot be required to pay maintenance.  See Ganyo v. Engen, 446 N.W.2d 683, 687 (Minn. App. 1989) (affirming maintenance award even though it left obligor with a $201 monthly deficit); Justis v. Justis, 384 N.W.2d 885, 891-92 (Minn. App. 1986) (affirming maintenance award that left obligor with about $143 monthly deficit), review denied (Minn. May 29, 1986).