This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-391

 

 

David Heth Som,

Respondent,

 

vs.

 

Bunphalliny Chhoum,

Appellant.

 

Filed January 20, 2004

Affirmed

Lansing, Judge

 

Scott County District Court

File No. DC 200201787

 

 

Vicki Fagre-Stroetz, Suite 101, 333 North Washington Avenue, Minneapolis, MN† 55401 (for respondent)

 

John T. Burns, Burns Law Office, 115 Midway Bank Building, 14300 Nicollet Court, Burnsville, MN† 55306 (for appellant)

 

††††††††††† Considered and decided by Lansing, Presiding Judge, Minge, Judge, and Wright, Judge.

U N P U B L I S H E D†† O P I N I O N

LANSING, Judge

††††††††††† This appeal from the denial of an alternative motion for amended findings or a new trial in a marital dissolution proceeding challenges the division of proceeds from the sale of the marital home, the computation of child support, and the amount and duration of spousal maintenance.† Because the district court did not misapply the law, abuse its discretion, or make a decision against logic and the facts, we affirm.

F A C T S

††††††††††† David Som and Bunphalliny Chhoum dissolved their four-year marriage in November 2002.† Som and Chhoum stipulated to joint physical and legal custody of their three-year-old daughter, to the division of Somís pension plan, to the sale of the homestead, and to the amount of Somís income.† They also agreed that Chhoum, who was unemployed at the time of dissolution, had an earning capacity.† The remaining issues of property division, child support, and maintenance were submitted for trial.

In dividing the proceeds from the sale of the marital home, the district court found that Som had used $8,983.22 of his premarital funds as part of the down-payment and that an additional $50,000 of the down-payment was an unsecured loan from Somís sister.† The court rejected Somís claim that his other sister had loaned the couple an additional $30,000 to purchase the home.

In determining child support, the court imputed to Chhoum a monthly gross earning capacity of $1,473.33 with a net earning capacity of $1,201.62.† Applying the Hortis-Valento formula to the stipulated joint physical custody resulted in Somís paying Chhoum $67.17 monthly for child support.† The judgment also ordered Som to pay Chhoum spousal maintenance of $300 a month for eighteen months.

Chhoum moved for amended findings or a new trial.† The district court denied the posttrial motions, and Chhoum appeals (1) the division of the proceeds from the sale of the marital home, (2) the child support computation, and (3) the spousal maintenance amount and duration.

D E C I S I O N

I

††††††††††† Chhoum challenges the district courtís division of the proceeds of the marital home on two bases:† allocating $10,265.74 to Som for his adjusted nonmarital contribution to the down-payment and determining that a $50,000 check from Somís sister used for the down-payment was an unsecured loan and not a marital gift.†

††††††††††† The district court has broad discretion in dividing property in a marital dissolution proceeding, and the property division will be upheld if it has an acceptable basis in fact and principle.† Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002).† Whether property is marital or nonmarital is a question of law, but appellate courts must defer to the district courtís underlying findings of fact.† Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).† The district courtís fact determinations shall not be set aside unless the findings are clearly erroneous in view of the complete record.† Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn. 2001).

††††††††††† Som and Chhoum agreed to sell the marital home and received $195,000 for the sale.† Som and Chhoum had purchased the home in 2001 for a total price of $170,638.22.† The purchase included a down-payment of $92,983.22.† At the contested hearing Som contended that $80,000 of the down-payment came from two unsecured loansó$30,000 from one sister and $50,000 from the other.† The court rejected the contention of the $30,000 loan but accepted the contention of the $50,000 loan.† Som also maintained that he contributed $8,983.22 to the down-payment taken from his premarital savings.† The district court accepted this contention and allocated Som $10,265.74 for his adjusted nonmarital contribution.

††††††††††† Chhoum first challenges the district courtís finding that Som used $8,983.22 of his premarital funds as a down-payment on the marital home.† Chhoum did not raise this challenge in her posttrial motions.† In fact, she requested that the court ďrequire the parties to divide equally all remaining sums after Petitionerís [David Somís] non-marital contribution of $10,265.74 is identified.Ē† Whether or not this request constitutes waiver, Chhoumís failure to challenge the finding in her posttrial motion narrows the scope of review to whether the evidence sustains the findings and whether the findings sustain the conclusions and judgment.† See Minn. R. Civ. P. 52.02 (noting that question of sufficiency of evidence to support findings may be raised even if not included in posttrial motion).

††††††††††† In finding that Som used his premarital savings as part of the down-payment, the district court relied on Somís testimony, his bank records admitted as exhibits, and the Housing and Urban Development settlement statement also admitted as an exhibit.† The testimony and exhibits sufficiently support the courtís finding that $8,983.22 of the down-payment came from funds that Som had on deposit in a bank account before his marriage to Chhoum.† Property acquired by either spouse before marriage is, by definition, nonmarital property.† See Minn. Stat. ß 518.54, subd. 5 (2002) (defining nonmarital property).† The district court did not abuse its discretion in designating as nonmarital property Somís contribution together with the increase in value attributable to it.

††††††††††† Chhoumís second challenge is to the district courtís finding that $50,000 used for the down-payment was an unsecured loan from Somís sister.† The court relied on the testimony of Som and his sister and exhibits that included a copy of a cashierís check for $50,000 dated February 20, 2001, and a note signed by Som on the same date promising to repay the $50,000.† Chhoum disputed the validity of this note at the contested hearing and argued that the check was a marital gift.† Although the mortgage application listed the $50,000 check as a ďgift not deposited,Ē Som and his sister each testified that the mortgage broker wrote this reference on a copy of the application and told them that it was necessary to include that reference to obtain the financing.† Both Som and his sister testified that this reference did not alter Somís obligation to repay the loan.

††††††††††† The district court credited the testimony of Som and his sister.† Due regard must be given to the district courtís opportunity to judge the credibility of the witnesses.† Gully v. Gully, 599 N.W.2d 814, 824 n.3 (Minn. 1999).† The testimony and the promissory note reasonably support the district courtís finding that the money was a loan.

II

 

In Minnesota a guideline child support obligation is rebuttably presumed to be appropriate in all cases.† Minn. Stat. ß 518.551, subd. 5(i) (2002).† The Hortis-Valento method for calculating child support is an application of the guidelines for setting support when parents have joint physical custody of a child.† Rogers v. Rogers, 622 N.W.2d 813, 816 (Minn. 2001).† Under the Hortis-Valento method, each parent is required to pay support as indicated by the child support guidelines, reduced by the percentage of time that the parent has physical custody of the child. †Id.† Minnesotaís child support statutes expressly provide for the imputation of income for a voluntarily unemployed or underemployed obligor.† Minn. Stat. ß 518.551, subd. 5b(d) (2002).

Chhoum raises two challenges to the district courtís computation of child support.† First, she challenges the amount of income imputed to her and, second, she challenges the application of the Hortis-Valento formula.

At trial Chhoum acknowledged that she had an earning capacity of $1,000 a month.† She challenges, however, the district courtís finding that she has a net earning capacity of $1,201.62.† The record is undisputed that Chhoum first gained employment two weeks after coming to the United States in December 1998 and was then employed for three years.† She voluntarily ended her employment.† The court computed Chhoumís earning capacity by using Chhoumís evidence of her earnings over the three-year period, which were $1,473.33 a month gross and $1,201.62 net.† The court did not err in imputing income in this amount.

It is also undisputed that Chhoum and Som stipulated to joint physical custody of their child and that the district court incorporated this stipulation into the judgment.† Because the Hortis-Valento offset is an application of the guidelines when the parents share joint custody of a child, it was not an abuse of the district courtís discretion to apply the formula in computing Somís child support obligation.

III

 

A district court has broad discretion in determining spousal maintenance, and we will uphold a maintenance decision absent an abuse of the courtís discretion.† Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).† This exercise of discretion must be viewed in light of the statutory criteria for spousal maintenance contained in Minn. Stat. ß 518.552, subd. 1(b) (2002).† See Erlandson, 318 N.W.2d at 38-39 (applying earlier version of statute).† Before determining whether the court abused its discretion in determining the amount and duration of maintenance, we first determine whether the court made a clearly erroneous conclusion against logic and the facts on the record.† Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).† Even if this court may have found differently, the district courtís decision must be affirmed if there is a reasonable basis in fact and principle.† Dubois v. Dubois, 335 N.W.2d 503, 507 (Minn. 1983).

The district court ordered Som to pay Chhoum spousal maintenance of $300 a month for eighteen months.† The court reasoned that Chhoum needed ďshort-term maintenance . . . to better get on her feet and until she can become more proficient in the English language . . . to avail herself of better job opportunities.Ē† In denying the motion for amended findings or a new trial the court indicated that it had taken into account Chhoumís capabilities and the division of marital assets in determining the length and amount of maintenance.† Chhoum received approximately $23,000 in marital property, and the district court ordered Som to pay her $4,000 for attorneysí fees.

Chhoumís past employment record demonstrates a gross monthly earning capacity of $1,473.33 or $1,201.62 net.† Although she had been unemployed for ten months at the time of trial, she had previously been employed for three years and had no debt.† She voluntarily left employment.† Chhoum estimated her expenses at $2,636 a month, but the district court rejected this estimate and instead found that her expenses were minimal.† At the time of the hearing Chhoum was living with members of her family.† Som was also living with members of his family but had a rent obligation for his living space.† Som and Chhoum stipulated that Somís net monthly income is $1,738.96.† The district court found that Somís reasonable expenses substantially exceeded his income.† The court recognized in its denial of the posttrial motions that in light of the limited availability of income ď[t]here is no perfect answer.Ē

Taking into account Somís limited ability to provide maintenance, Chhoumís employment history, her age (24), her apparent good health, and the short duration of the marriage, the district court applied the proper statutory factors and did not abuse its discretion in determining the amount or duration of maintenance.

††††††††††† Affirmed.