This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-03-244

 

 

In re the Marriage of:

 

Lori A. Kramer, petitioner,

Respondent,

vs.

Dale L. Kramer,

Appellant.

Filed July 29, 2003

Affirmed

Lansing, Judge

 

Redwood County District Court

File No. F401692

 

 

Patrick J. Leary, 109 South Fourth Street, Marshall, MN  56258 (for respondent)

 

J. Brian O’Leary, Box 76, Springfield, MN  56087 (for appellant)

 

            Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The district court dissolved Dale and Lori Kramer’s marriage, divided the marital property, and ordered the payment of spousal maintenance.  Dale Kramer appeals the property division and the spousal-maintenance determination.  Because the district court did not abuse its discretion in dividing the property or in ordering maintenance, we affirm.

F A C T S

            Dale and Lori Kramer were married in 1980, and Lori Kramer petitioned for dissolution in December 2001.  During the marriage, the parties established a trucking business, which they operated out of facilities located on the marital homestead.  The evidence at the contested dissolution hearing established that the business produced assets worth more than a half-million dollars, but its income began to decline in the summer of 2001 when Dale Kramer “lost interest in it.”  The company ceased operations in January 2002, prior to the hearing.  At the time of the hearing, Dale Kramer was not working regularly, and he testified that he had no income other than eighty dollars in trailer-rental income.  He also testified that because his son paid his necessary expenses, he currently had no living expenses.

            The district court allocated to Lori Kramer marital property valued at $411,930 including the homestead, a lakeshore property, and certain personal property.  The court allocated to Dale Kramer marital property valued at $390,429 consisting primarily of the trucking company’s remaining assets.  The court also ordered that Dale Kramer provide Lori Kramer permanent spousal maintenance of $400 per month.  Dale Kramer now appeals the district court’s denial of his motion for a new trial or amended findings.


D E C I S I O N

 

I

            District courts have broad discretion over the division of marital property, and we will not overturn that division absent a clear abuse of discretion.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000).  A district court’s valuation of an asset will be sustained unless it is “clearly erroneous on the record as a whole.”  Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975) (citations omitted).  And even though we might have taken a different approach to the property division, we will “affirm the [district] court’s division of property if it had an acceptable basis in fact and principle.”  Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984) (citations omitted).

            Dale Kramer contends that the district court erred in dividing the Kramers’ real property, household goods, and trucking-company assets rather than ordering a sale, because the parties had “agreed” that the property should be sold and the proceeds divided.  The record does not support Dale Kramer’s characterization of the parties’ intentions.

            In her petition for dissolution, Lori Kramer asked the court to provide her an equitable share of the marital property, and she presented an exhibit at trial listing the value of the property and her proposals for its division.  Although on cross-examination Lori Kramer stated that she would be “willing” to have the court order sale of various items of marital property, she also testified that she would only agree to a sale conducted in a commercially reasonable manner.  She then stated that she did not believe that this would be possible because Dale Kramer was “hiding assets, dragging out this divorce, and avoiding disclosing these matters.”  Because Lori Kramer’s agreement was contingent on a commercially reasonable sale that appeared unlikely, the district court did not abuse its discretion in dividing the marital property between the parties rather than ordering its sale.

            In determining the value of the trailers used in the parties’ trucking business, the district court relied on Lori Kramer’s testimony.  Dale Kramer contends that her testimony lacked foundation and was insufficient to support the court’s property division.  We do not consider the challenge to the foundation of Lori Kramer’s valuation evidence because Dale Kramer did not object to its admission at trial.  See Estate of Hartz v. Nelson, 437 N.W.2d 749, 752-53 (Minn. App. 1989) (holding that evidence admitted without objection may not be challenged for the first time in a motion for new trial or on appeal).

            Dale Kramer casts his insufficiency argument as a challenge to Lori Kramer’s credibility.  To the degree it is based on credibility, this argument is unavailing because credibility determinations are within the province of the district court and will not be reassessed on appeal.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (“Deference must be given to the opportunity of the trial court to assess the credibility of the witnesses.”).  To the degree the challenge is to the adequacy of the testimony to support the valuation, it also fails.  Lori Kramer was the bookkeeper for the trucking business from 1985 until it ceased operations.  She provided a detailed list of the assets and their approximate value.  The evidence is sufficient to support the district court’s finding on valuation of the assets.  Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979) (citation omitted) (“Exactitude is not required * * * in the valuation of assets in a dissolution proceeding[.]”); Bury v. Bury, 416 N.W.2d 133, 136 (Minn. App. 1987) (noting parties are presumed competent to testify to the value of their property).

II

 

Dale Kramer challenges the district court’s order of spousal maintenance on grounds that it is improperly calculated on his earning capacity and his expenses at the time of trial, rather than on his actual income and potential future expenses.  Determination of spousal maintenance is within the district court’s broad discretion.  Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989).  For this court to conclude the district court abused that discretion, the district court’s findings of fact must be “against logic and the facts on [the] record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted). 

At the hearing Dale Kramer testified that he could earn $2,000 a month if he began driving for another company and that he currently had no living expenses because his expenses were paid by his son.  He offered no testimony on his future living expenses, nor did he indicate to the district court that his expenses would increase if he returned to full-time employment or when he moved from the marital homestead.  While either of these events may provide grounds for a modification of the maintenance amount under Minn. Stat. § 518.64 (2002), the district court cannot be expected to make findings when it has no evidence on which to base the findings or when the events are theoretical rather than real. The district court’s finding on Dale Kramer’s ability to pay maintenance at the time of trial is adequately supported by the testimony and other evidence in the record.  See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (stating party’s failure to produce evidence, which caused denial of motion to modify maintenance, precluded party from complaining about denial on appeal).

Dale Kramer also contends that the district court should not have determined the parties’ expenses and income before the division of the marital property was “complete.”  In support of this contention, he points to Minn. Stat. § 518.552, subd. 1(a), which establishes that a court may order maintenance for either spouse if it finds that the spouse seeking maintenance “lacks sufficient property, including marital property apportioned to the spouse, to provide for [his or her] reasonable needs.”  Minn. Stat. § 518.522, subd. 1(a) (2002) (emphasis added).  He argues that this statutory language indicates that maintenance must be deferred until the consequences of the property settlement can be fully determined.  But that argument overlooks subdivision 1(b) of the statute, which provides that the district court may also order maintenance when the spouse seeking maintenance “is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment.”  Minn. Stat. § 518.522, subd. 1(b) (2002).

Dale Kramer’s remaining arguments on spousal maintenance were neither raised at the contested hearing nor in posttrial motions.  Consequently those arguments may not be considered on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (holding that arguments not presented below cannot be raised for the first time at the appellate level).

            Affirmed.