This opinion will be unpublished and

may not be cited except as provided by

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






In re the Marriage (now dissolved) of:

Richard Austin, petitioner,





Lori Austin,



Filed March 9, 2004

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge


Cook County District Court

File No. F0-01-142


Brian P. Lundgren, Fryberger, Buchanan, Smith & Frederick, P.A., 302 West Superior Street, Suite 700, Duluth, MN 55802 (for appellant)


Timothy A. Costley, The Costley Law Firm, 609 First Avenue, P.O. Box 340, Two Harbors, MN 55616 (for respondent)


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

U N P U B L I S H E D   O P I N I O N


            In this marital dissolution, the district court divided the parties’ interests in certain properties, imputed income to appellant Richard Austin, and awarded respondent Lori Austin maintenance and child support.  Appellant challenges the court’s order on all three issues.  Because the district court overstated the parties’ interest in the proceeds of the sale of a resort lodge and, in calculating appellant’s income for child support purposes, failed to account for his obligation to provide dependent medical insurance, we reverse and remand for appropriate adjustments of the relevant judgment provisions.  We affirm the remainder of the district court’s order. 


In 1979, appellant’s parents bought a resort lodge for $65,000.  The parties later met and started working at the lodge during the summer beginning in 1983.  Because of considerable effort by appellant’s parents and the parties, the lodge business prospered, and the income generated by it was used to expand that business and start others.  As of 1986, the businesses were labeled partnerships for tax purposes, but there were no partnership agreements or other documentation regarding how they were owned or operated or how the parties and appellant’s parents were compensated.  The parties and appellant’s parents never received regular paychecks from the businesses.  At the end of the year, appellant’s parents generally divided any profits among the four of them.  After the parties married in 1989, they worked full-time for the family businesses with the lodge paying their expenses during the tourist season.

In 1999, appellant’s parents sold the lodge and the house in which they had been living for approximately $1.7 million.  They moved to a house purchased with funds generated by the lodge and transferred some of the lodge’s sale proceeds to appellant, who invested the funds.

Appellant petitioned to dissolve the parties’ marriage in August 2002.  The parties stipulated to joint physical custody of their three children and the division of certain personal property.  After a trial on contested issues, the district court adopted the parties’ partial stipulation and (a) treated the multiple family businesses as a partnership between the parties and appellant’s parents, meaning that the parties had interests in the funds generated by the businesses and the assets purchased with those funds; (b) ruled that the parties had one-half interest in a number of properties that had been the subjects of the family’s efforts; (c) ruled that the parties had one-half interest in the remaining amount due on the lodge contract; (d) imputed $40,000 annual income to appellant; (e) awarded respondent $600 permanent monthly maintenance; and (f) set appellant’s net monthly child support payment at $265.  This appeal follows. 


            Appellant did not move for a new trial.  Absent a motion for a new trial, appellate courts can review substantive issues of law properly raised at trial.  Alpha Real Estate Co. v. Delta Dental Plan, 664 N.W.2d 303, 310 (Minn. 2003).  Appellate courts can also review whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment.  Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976). 


            By treating the businesses as a partnership, the district court ruled that the parties were entitled to interests in both the profits of the businesses and the underlying properties.  Citing the testimony of himself and his parents that his parents owned the properties underlying the businesses, appellant challenges the determinations that the parties had interests in the business properties. 

A.        Quitclaim Deed and Bethany Property

            In a March 10, 2000 quitclaim deed, appellant’s parents transferred to themselves and the parties as joint tenants an island with cabins and the property on which the parties built their homes.  The district court included in the parties’ marital estate one-half interest in both the island property and the homestead lots.  Appellant argues that any conveyance by his parents via the quitclaim deed was done as an inheritance device in case the parents passed away and that his parents lacked the donative intent necessary to make a gift in light of testimony that they intended to transfer nothing to appellant before death.  See Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997) (noting donative intent is necessary for existence of a gift).  But the district court found not credible the testimony of appellant and his parents that respondent was not intended to have interests in the homestead and island properties.  And we defer to district court credibility determinations.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).[1] 

Noting that the deed tax on the quitclaim deed was $1.65, appellant argues that the quitclaim deed could not have transferred substantial interests in any property.  But this record is overwhelmingly clear that, amongst themselves, any attention by appellant’s parents and the parties to the legal formalities of ownership, title, and similar questions has been virtually nonexistent.  On this record, we will not second-guess the district court’s refusal to put significant weight on the importance of the amount of the deed tax.[2] 

            In 1998, appellant’s parents and the parties purchased land known as the Bethany property with the intent of developing the area for home construction and resale.  The down payment was split between the two couples with sale proceeds from the lodge.  All four individuals signed the promissory note and the property is registered in all of their names.  Additionally, appellant’s father testified that appellant’s name is on the certificate of title because he was to be a partner in the property’s development and sale. 

The district court ruled that the parties have a one-half interest in the Bethany property.  Appellant challenges this ruling for the same reasons he challenges the treatment of the properties involved in the quitclaim deed.  But the record clearly supports the district court’s findings and the findings support the court’s conclusion.

B.        Extent of Marital Interest in Parties’ Homestead

            Appellant alleges that if the quitclaim deed is valid, the district court erred in treating the entire homestead as marital property because appellant’s parents were named as transferees on that deed.  The homes of both the parties and appellant’s parents were purchased, directly or indirectly, with earnings from the lodge.  In including the entire value of the parties’ homestead in the marital estate, the district court (a) stated that the parties have a one-half interest in their homestead; (b) concluded that not including all of the homestead’s value in the marital estate would create a windfall for appellant because his parents would then be entitled to part of the property’s increased value attributable to the parties’ construction of their home and appellant’s parents would eventually transfer that interest to appellant; and (c) refused to treat any of the equity in the home of appellant’s parents as part of the parties’ marital estate.  Because there is no argument that the equity in the two properties is substantially different, any error in treating as marital all of one property, but none of the other is harmless or de minimis.  See Minn. R. Civ. P. 61 (requiring harmless error to be ignored); Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis technical error); cf. Minn. Stat. § 518.58, subd. 3 (2002) (stating, in context of pensions, if sufficient liquid assets exist, one party is to be awarded entire pension while other party is to be awarded an equivalent amount of nonpension assets).  Because any error has not been shown to be prejudicial, we need not address appellant’s argument that the district court erred by invoking equity to circumvent what it concluded was his parents’ plan to convey their interest in the homestead to appellant. 

C.        Stock Accounts

            The district court ruled that the parties’ marital estate includes appellant’s investment accounts purchased with the share of the proceeds from the lodge’s sale.  Appellant argues that the accounts are his nonmarital property because his parents conveyed those funds to him alone.  Property acquired by a party to a marriage during the marriage is presumed to be marital.  Minn. Stat. § 518.54, subd. 5 (2002).  Appellant’s argument assumes that the proceeds of the lodge belonged to his parents and that they could convey them in the manner they saw fit. 

In one of a series of findings in which the district court explicitly rejected the testimony of appellant and his parents that respondent was not intended to have an interest in the assets of the family businesses, the district court found that “[n]ot withstanding the testimony of [appellant] and his parents to the contrary, [the parties and appellant’s parents] treated the [lodge] business as an equal partnership between the couples” and that “[t]he Court is satisfied that the treatment of [the lodge] as a four person equal partnership accurately reflects the circumstances.”  Because the lodge was a partnership, the parties had an interest in the lodge and, hence, in the proceeds of its sale.  Because the funds transferred to appellant were funds in which respondent has an interest, any intent of appellant’s parents to transfer those funds to appellant alone is irrelevant.  See Mitchell v. Hawley, 83 U.S. 544, 550 (1872) (noting principle that one cannot convey what one does not own). 


            Appellant’s parents bought the lodge for $65,000 in 1979 and sold it for $1.7 million in 1999.  At the time of sale, there was a balance of $375,000 due on a contract for deed.  Upon closing, appellant and respondent received $200,000 in cash, as did appellant’s parents.  At the time of the dissolution, $351,423 of the sale price was unpaid.  The district court ruled that one-half of the remaining proceeds from the lodge sale ($175,711) is the parties’ marital property.  Appellant argues that all of the balance belongs to his parents and that he and respondent have no interest in that balance because his parents bought the lodge before respondent met appellant and his parents, the lodge was titled in the name of appellant’s parents, the deed by which appellant’s parents sold the lodge listed only appellant’s parents as sellers, and the note from the buyers was made out only to appellant’s parents.  The district court’s award is based on its determination that the parties and appellant’s parents equally contributed to the increase in the value of the lodge and that there is “no evidence offered indicating that the increase in value of the assets held by the parties in the form of the [lodge] or otherwise came from any source other than the efforts of the parties and general inflationary increases.”  The court found that the parties reported one-half of the sale proceeds on their income tax return with appellant’s parents reporting the other one-half.  The district court’s findings are supported by the record. 

But because appellant’s parents original purchase of the lodge is nonmarital relative to the parties, appellant’s parents are entitled to recover their $65,000 investment and the inflationary increase in the value of that investment.  Cf. Nardini v. Nardini, 414 N.W.2d 184, 192 (Minn. 1987) (stating, regarding Schmitz analysis, “an increase in the value of nonmarital property attributable to inflation or to market forces or conditions, retains its nonmarital character”).  Therefore, we remand this aspect of the property division for the district court to recalculate and clarify the portion of the lodge proceeds belonging to the parties and to adjust the property division accordingly. 


            The district court ruled that one-half of the values of the island and mini-storage properties are marital property.  Appellant argues that these valuations must be reduced by 30% for lack of marketability and lack of control.  A determination of an asset’s value is a finding of fact and is affirmed if it is within the limits of a credible estimate made by competent witnesses “even if it does not coincide exactly with the estimate of any one of them.”  Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975).  The basis for a marketability discount is that shares in closely held corporations cannot be sold as readily as shares in a corporation with securities traded in an exchange or established market.  Advanced Communication Design, Inc. v. Follett, 615 N.W.2d 285, 291 (Minn. 2000).[3] 

The valuation of the island property did not treat the property as a business; it treated the property as land with cabins on it and valued the property as a non-business asset.  Therefore, the district court was not required to discount its value for lack of control.  See Nardini, 414 N.W.2d at 189 (stating value of family business “cannot” be less than the value of its assets less its liabilities); cf. Follett, 615 N.W.2d at 291 (stating marketability discount adjusts for “lack of liquidity in one’s interest in an entity”) (emphasis added; quotations omitted). 

            Because the mini-storage property was valued by an income analysis, it was arguably valued as a business.  On this record, however, it is not clear that appellant will sell his interest in the business or that, if he does, he would sell it to someone other than his parents.  Therefore, appellant has not shown that the district court was required to discount the value of the mini-storage property.  Cf. Nardini, 414 N.W.2d at 189 (noting there is no reason to discount shares in business when all shares are held by party to dissolution). 


            Appellant challenges the division of marital property.  A division of marital property is discretionary with the district court, is to be equitable, and will be affirmed if it “has an acceptable basis in fact and principle even though [the appellate court] might have made a different disposition of the problem.”  Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986) (quotation omitted); see also Minn. Stat. § 518.58, subd. 1 (2002).  Because we affirm the bulk of the district court’s rulings regarding the content of the marital estate, the parties were married for 12 years when they separated, and the district court attempted to equally divide the marital estate, appellant has not shown the non-contract-for-deed portions of the property distribution to be inequitable.  See Miller v. Miller, 352 N.W.2d 738, 742 (Minn. 1984) (stating that, upon dissolution of long-term marriage, an equal division of marital property is presumptively equitable). 


            The judgment (a) imputes a $40,000 annual income to appellant, based in part on income he will receive from various assets awarded to him in the judgment and in part on what he could earn if he were employed full-time; (b) awards appellant almost all of the real-property interests deemed marital; (c) awards respondent a $512,000 lien on property awarded to appellant; and (d) requires that appellant pay one-half of respondent’s lien within 18 months of the judgment and the other one-half within 36 months of the judgment.  Appellant challenges the imputation of a $40,000 annual income to him, arguing that respondent’s lien will require him to liquidate much of his property and that he will not receive income from the liquidated property.  The finding of appellant’s income will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  Appellant’s challenge to the amount of income imputed to him is premature.  If he liquidates property, the extent of any decrease in his income will be known and he can then move to reduce his income-based obligations accordingly. 

            Noting that income may be imputed if it is impracticable to determine actual income or income is unjustifiably self-limited, appellant argues that imputing income to him is improper because he fits neither category.  Appellant also contends that imputing a $40,000 annual income to him is inconsistent with his tax return.  The record shows that (a) “[appellant’s] income has never been accurately determined or reported”; (b) there were no written agreements regarding appellant’s compensation or other aspects of the family’s businesses, and appellant was never formally paid for his work for the businesses; (c) during the tourist season, the resort business paid most of the parties’ expenses; and (d) appellant’s tax returns are prepared by an accountant and appellant signs them without checking their accuracy.  Because the record supports the district court’s order, we conclude that it is not erroneous.


Appellant challenges his maintenance obligation.  While Minn. Stat. § 518.552 (2002) lists factors to be considered in setting the amount and duration of maintenance, no single factor is dispositive, and the issue is basically the recipient’s need balanced against the obligor’s financial condition.  Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982).  Absent an abuse of its “wide discretion,” a district court’s maintenance award “is final.”  Id. at 38.  Here, after accounting for maintenance and child support, appellant has a monthly deficit of $965, while respondent has a monthly deficit of $1,005.  Appellant argues that his reasonable monthly expenses exceed his net monthly income and that awarding maintenance to respondent is inappropriate because he lacks the ability to pay it.  See Zagar v. Zagar, 396 N.W.2d 98, 101 (Minn. App. 1986) (reciting general prohibition on setting maintenance at a level requiring obligor to liquidate assets to pay maintenance).  But the mere existence of a monthly deficit does not preclude an award of maintenance to respondent.  Ganyo v. Engen, 446 N.W.2d 683, 687 (Minn. App. 1989); Justis v. Justis, 384 N.W.2d 885, 891-92 (Minn. App. 1986), review denied (Minn. May 29, 1986).  And here the maintenance award gives the parties’ approximately equal monthly deficits. 

Appellant also argues that respondent does not need maintenance because she has sufficient assets to provide for herself.  But the bulk of the assets to which appellant refers is respondent’s $512,000 lien.  Because she will not start to receive payment of her lien for 18 months, any assertion that respondent derives income from that asset is premature.  Most of the rest of the assets awarded to respondent are investment accounts that either are retirement accounts or are accounts appellant purchased for retirement purposes that respondent wants to retain for retirement purposes.  On this record, we cannot say that the district court abused its discretion by not requiring respondent to use the interest or principal of those accounts to support herself currently.  The remaining assets appellant notes were awarded to respondent are of limited value and do not significantly alter her monthly expenses. 


            In addressing child support, the district court (a) noted the parties stipulated to joint physical custody; (b) reduced appellant’s $40,000 annual imputed income by one-third to account for taxes and retirement contributions; (c) found appellant’s net monthly income for support purposes to be $2,200 and applied the Hortis/Valento formula; (d) set appellant’s net monthly support payment at $265; and (e) made appellant responsible for providing medical insurance for the children.  Appellant argues that his net monthly support payment should be $155.  The crux of his argument is that, in calculating his net monthly income for support purposes, the district court should not have used the imputed income figure and should have allowed him a deduction for dependent medical insurance.  But, as noted above, the court’s difficulty in determining appellant’s actual income renders imputation of income to him proper.  Appellant is correct, however, in asserting that he is entitled to a deduction for dependent medical insurance.  See Minn. Stat. § 518.551, subd. 5(b)(vi) (2002) (defining net monthly income as total monthly income less, among other things, “Cost of Dependent Health Insurance Coverage”).  Therefore, we remand for the district court to re-address this component of the support calculation.

            Affirmed in part, reversed in part, and remanded.

[1]Another aspect of the district court’s ruling is that the assets accumulated by appellant’s parents and the parties were acquired as a result of the success of the lodge, that the lodge was a partnership in which respondent had an interest, and therefore, that respondent had interests in the proceeds of the lodge and whatever was acquired with those proceeds.  While this analysis applies to the land on which the parties’ homestead was built because that land was acquired after respondent worked for the lodge, we note that the island property was acquired in the late 1980s as a result of a lawsuit, not from proceeds of the lodge. 

[2]  Appellant cites unpublished opinions to support his challenge to the district court’s rulings.  Unpublished opinions are of limited value in deciding an appeal.  See Minn. Stat. § 480A.08, subd. 3(c) (2002) (stating “[u]npublished opinions of the court of appeals are not precedential”) (emphasis added); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App. 1993) (stating dangers of mis-citation and unfairness associated with use of unpublished opinions and that while persuasive, “[t]he legislature has unequivocally provided that unpublished opinions are not precedential”).  Additionally, the unpublished opinions cited are distinguishable. 

[3] Follett distinguishes a lack of marketability discount from a lack of control discount.  615 N.W.2d at 291.  Appellant, however, does not make separate arguments for the two types of discounts.