This opinion will be unpublished and

may not be cited except as provided by

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







In re:  Sandra M. Cunningham,
n/k/a Sandra M. Hake, petitioner,


Martin W. Cunningham,


Filed September 2, 2003


Wright, Judge


Kandiyohi County District Court

File Nos. F38933159, FX01373



Rodney C. Hanson, Anderson, Larson, Hanson & Saunders, P.L.L.P., 331 SW Third Street, PO Box 130, Willmar, MN  56201 (for appellant)


Kenneth R. White, Law Office of Kenneth R. White, P.A., 325 South Broad Street, Suite 203, Mankato, MN  56001; and


Raymond O. Walz, Walz Law Office, 230 East Third Street, P.O. Box 50, Redwood Falls, MN  56283 (for respondent)



            Considered and decided by Wright, Presiding Judge; Lansing, Judge; and Parker, Judge. *


U N P U B L I S H E D  O P I N I O N




In this marital dissolution appeal, appellant-husband argues that the district court abused its discretion by (1) denying appellant’s motion for a new trial based on newly discovered evidence and (2) valuing the farmland, stored grain, and farm machinery without considering the tax consequences of the sale of those assets.  Appellant also contends that the district court’s valuation of the farm machinery is not supported by the record.  By notice of review, respondent-wife argues that the district court abused its discretion in declining to award her conduct-based attorney fees.  We affirm. 



The marriage of appellant Martin Cunningham and respondent Sandra Hake was dissolved on June 27, 2001, reserving for trial issues related to the division of the marital estate.  The parties owned several parcels of real estate, including their home, farmland, and a lake cabin.  Each requested that the marital home be awarded to the other.  Hake requested the farmland so that she could rent the land.  Cunningham also requested the farmland and expressed his intention to continue farming.  Neither party expressed any intent to sell the farmland.  The parties stipulated to a property-valuation date of January 1, 2001. 

In December 2001, a trial was held to divide the parties’ marital estate.  The parties contested the value of the farm machinery and equipment.  After receiving valuation evidence ranging from $145,600 to $183,600, the district court valued the farm machinery and equipment at $140,000.  The district court awarded Cunningham the home, farmland, and cabin.  Cunningham was also awarded the farm machinery and equipment.  The stored grain with a stipulated valued of $156,460 was also awarded to Cunningham.  Because Cunningham would have to sell some of the grain to satisfy the property settlement, the district court reduced the grain’s value by 15 percent to account for the tax consequences Cunningham would incur from the sale.  This resulted in a valuation of $132,991. 

The district court awarded Hake a cash-equalization payment of $241,617, with $100,000 payable in two installments in 2002, and payments of $50,000 in 2003 and 2004 respectively.  The remaining amount of $41,617 was ordered to be paid in 2005.  Hake received a lien on the home for $50,000 and a lien on the farm for $141,617 to insure payment as ordered. 

Cunningham moved for amended findings of fact and conclusions of law, or alternatively, a new trial.  In support of the motion, Cunningham argued that his post-trial decisions to discontinue farming and sell the farm constitute newly discovered evidence.  He also argued that the district court’s findings failed to consider tax consequences on the future sale of the farm, machinery, and grain.  In his accompanying affidavit, Cunningham stated that, because he could not satisfy the cash-equalization payment required by the dissolution judgment if he continued farming, he accepted a position as a property adjuster.  Hake also moved to amend the district court’s findings and conclusions denying attorney fees.  The district court denied both parties’ motions, concluding, in part, that Cunningham’s “post-trial decisions concerning his occupation and liquidation of his farming operation are not the basis for a new trial.”  This appeal followed. 





Pursuant to Minn. R. Civ. P. 59.01(d), a new trial may be granted if the moving party produces “[m]aterial evidence, newly discovered, which with reasonable diligence could not have been found and produced at the trial.”  Absent an abuse of discretion, we will not disturb the district court’s denial of a new trial based on a claim of newly discovered evidence.  Hertz v. Hertz, 304 Minn. 144, 146, 229 N.W.2d 42, 44 (1975).  Evidence that is merely contradictory cannot support a new trial based on newly discovered evidence.  Albertson v. Albertson, 243 Minn. 212, 217, 67 N.W.2d 463, 467 (1954). 

Cunningham contends that his post-trial decisions to discontinue farming, sell the farm, and embark on a new career warrant a new trial.  Granting a new trial based on newly discovered evidence, however, requires a showing that the evidence was not within the petitioner’s knowledge at the time of trial.  Vikse v. Flaby, 316 N.W.2d 276, 284 (Minn. 1982).  At trial, Cunningham testified that he may need to obtain a new job to supplement his farming income and to support a cash-equalization payment, and that financial strain may influence his decision to continue farming.  With this knowledge, Cunningham testified that he intended to continue farming.  In the affidavit supporting his new-trial motion, Cunningham stated, “At the time we tried this case back in December, I was undecided about the future and in fact testified that I would continue farming.”  Cunningham’s statements that he was “undecided about the future” are inconsistent with his trial testimony that he intended to continue farming.  See Albertson, 243 Minn. at 217, 67 N.W.2d at 467 (noting that evidence which is merely contradictory cannot support a new trial based on newly discovered evidence); see also 2 David F. Herr & Roger S. Haydock, Minnesota Practice § 59.14 (1998) (“Facts which occur after the trial should generally not be considered newly discovered evidence.”).  Cunningham decided to change careers after trial.  We agree with the district court’s determination that Cunningham’s decision was not newly discovered evidence, but simply a post-trial decision.  As such, the district court did not abuse its discretion in denying Cunningham’s motion for a new trial based on newly discovered evidence.



Alternatively, Cunningham argues that the district court abused its discretion by denying his motion to amend the findings of fact as to the valuation of the farm, machinery, and stored grain.  The value of an asset is a factual finding, which we will not set aside unless clearly erroneous on the record as a whole.  Hertz, 304 Minn. at 145, 229 N.W.2d at 44.  “[V]aluation is necessarily an approximation in many cases.”  Id.  As such, the value arrived at need only fall “within a reasonable range of figures.”  Id.  It is within the district court’s discretion to determine whether to consider future tax consequences when valuing property in conjunction with its division.  Maurer v. Maurer, 623 N.W.2d 604, 607-08 (Minn. 2001); O’Brien v. O’Brien, 343 N.W.2d 850, 854 (Minn. 1984).  Future tax consequences may be considered when doing so would not be speculative.  Maurer, 623 N.W.2d at 607; Miller v. Miller, 352 N.W.2d 738, 744 (Minn. 1984); see also Aaron v. Aaron, 281 N.W.2d 150, 153 (Minn. 1979) (stating that the district court should consider tax consequences of a real estate sale that is required and likely to occur a short time after dissolution). 

Cunningham contends that the district court abused its discretion by failing to consider the tax consequences resulting from the future sale of the farmland and machinery.  At trial, neither party expressed any intention to sell the farm or machinery in the immediate future.  Hake testified that she would rent the farmland to generate income if the court awarded the property to her.  Cunningham expressed his intent to continue farming and specifically requested that the district court award the farm and machinery to him.  In denying Cunningham’s motion for amended findings as to the value of the farm and machinery, the district court correctly concluded that the record contains no valid basis for projecting tax liability on the potential sale of these assets.  Thus, the district court’s valuation of these assets was not an abuse of discretion. 

The district court also determined that Cunningham would have to sell grain in order to satisfy the property settlement and, therefore, reduced the grain’s value by 15 percent to account for the tax consequences of the sale.  Cunningham contends that the 15-percent reduction is unsupported by the record.  Hake’s accountant testified that, based on Cunningham’s tax returns for 1996 through 2000, Cunningham’s tax liability averaged 14.49 percent of the income generated from the sale of grain; and Cunningham’s grain sales and the resulting tax liability generally maintained a consistent level for that time period.  In contrast, Cunningham’s accountant projected a tax rate of “30 some percent” based on Cunningham’s net annual income.  But his projection did not consider the income and expenses of Cunningham’s farming operation.  Because the district court’s reduction of the grain’s value by 15 percent to account for future tax consequences resulting from its sale is supported by logic and the record, the district court’s valuation was not an abuse of discretion. 

Cunningham next argues that the district court clearly erred in valuing the farm machinery and equipment at $140,000.  Cunningham asserts that the district court failed to consider a professional appraisal prepared by Farm Credit Services.  This appraisal, however, is not a part of the record.  The evidence received on this issue consists of Cunningham’s opinion regarding the machinery’s value, along with financial statements submitted by both parties.  Cunningham submitted a 1997 balance sheet valuing the machinery at $183,600.  This valuation inflates the value of Cunningham’s interest, however, because the balance sheet inadvertently included interests owned by others.  Hake submitted 1999 and 2000 FINPAK[1] balance sheets, certified as true and correct by Cunningham, valuing his interest in the equipment at $150,000.  Cunningham testified that the 2000 FINPAK balance sheet submitted by Hake was, at the time, a fair estimate of the machinery’s value.  Hake also submitted Cunningham’s 2001 tax return, which assigned a value of $145,600 for less than all of Cunningham’s machinery and equipment.  The district court’s valuation falls within a “reasonable range of figures.”  Hertz, 304 Minn. at 145, 229 N.W.2d at 44.  Accordingly, we conclude that the district court did not clearly err in valuing the equipment.



By notice of review, Hake argues that the district court erred by denying her motion to amend its findings of fact and conclusions of law to award her $4,522.50 in conduct-based attorney fees.  Under Minn. Stat. § 518.14, subd. 1 (2002), a district court, “in its discretion,” may award “fees, costs and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.”  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.” Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987), review denied (Minn. July 14, 1987).  Upon careful review of the record in light of Hake’s specific claims, we conclude that the district court’s decision was well within its broad discretion. 


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1]  FINPAK assists farmers in determining the net value of their farming operation.