This opinion will be unpublished and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

A03-864

 

Kathleen M. LaFrance, petitioner,

Respondent,

 

vs.

 

Douglas R. LaFrance,

Appellant.

 

Filed May 4, 2004

Affirmed

Hudson, Judge

 

Koochiching County District Court

File No. F3-01-412

 

Steven M. Shermoen, 501 Fourth Street, P.O. Box 1152, International Falls, Minnesota 56649 (for respondent)

 

Steven A. Nelson, 210 Fourth Avenue, International Falls, Minnesota 56649 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Hudson, Judge; and Crippen, Judge.*


U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

In this dissolution appeal appellant-husband challenges the trial court’s denial of his motion for a new trial.  Appellant argues that he is entitled to a new trial because the trial court (1) undervalued certain real property awarded to respondent-wife; and (2) used the wrong valuation date for the parties’ assets.  Because the trial court’s valuation of the real property was not clearly erroneous on the record as a whole, and because the trial court did not abuse its discretion in using the date of dissolution as the valuation date, we affirm.

FACTS

Appellant Douglas R. LaFrance (husband) and respondent Kathleen M. LaFrance (wife) married on December 26, 1987.  In July 1986 the parties were living together and discovered real property for sale in Rainy Lake, Minnesota.  The parties purchased the property—known as the Keyes Island property—for $16,500, with $5,000 down.  Husband borrowed money from a credit union and the parties both made payments on the $5,000 loan.  The property was in wife’s name, but the parties planned to put the property in both names after they were married.  The parties made several improvements on the property, which cost between $8,500 and $13,500.

The parties separated in 1999 and dissolution of their marriage commenced in 2001.  On January 28, 2002, the trial judge signed a stipulated order, which determined temporary custody of the children.  The case was originally set for trial on August 28, 2002, but it was continued, upon wife’s motion, to November 19 and 20, 2002.  On September 3, 2002, an order and judgment was entered, which dissolved the marriage, established custody of the children, and referred child support to a child support magistrate.  All other issues were left for trial. 

On September 5, 2002, the trial court also issued a scheduling and discovery order.  The order provided, among other things, that “neither party shall be allowed to have any witnesses testify at trial other than those disclosed to the other party in discovery responses prior to August 28, 2002, except for rebuttal witnesses as allowed by the court during trial.”

At trial, wife testified that the Keyes Island property should be awarded to her, and that the property should be valued by using the Koochiching County statement of property taxes payable in 2002, which indicated the estimated fair market value of the property was $63,800.  Wife added the fair market value of the improvements, which, according to wife, brought the fair market value of the property to $73,800.  Husband testified that the property had a value of $225,000, based on his determination that the property could be divided into three separate lots valued at $75,000 each.  Husband attempted to call an expert witness for “rebuttal” to corroborate husband’s opinion on the fair market value.  Based apparently on the trial court’s September 5, 2002, scheduling and discovery order, wife’s counsel objected to this previously undisclosed witness.  The district court sustained the objection, noting that the witness was not a true rebuttal witness.

The trial court disregarded husband’s estimate and determined that the value of the property was $73,800, which is the amount stated on the Koochiching County statement of property taxes payable in 2002, with $10,000 added for the fair market value of the improvements.  The trial court awarded the Keyes Island property to wife.  The trial court set the valuation date for the parties’ assets as the date of dissolution and filed the final dissolution decree.  The trial court awarded husband marital assets with a net equity valued at $118,986.56 more than those marital assets awarded to wife.  As a result, the trial court ordered that husband pay wife $59,493.28 to make the property division fair and equitable.

Husband filed a motion for a new trial on the basis of “newly discovered evidence.”  The alleged newly discovered evidence was a certified appraisal of the property, dated October 11, 2002, signed by Dennis Krantz.  Krantz valued the Keyes Island property at $128,500.  Wife opposed the motion for a new trial because husband failed to disclose the October 11, 2002, appraisal prior to trial.  The trial court denied husband’s motion for a new trial.  This appeal follows.

D E C I S I O N

I

When a marriage is dissolved, “the court shall make a just and equitable division of the marital property of the parties.”  Minn. Stat. § 518.58, subd. 1 (2002).  A trial court’s valuation of an item of property is a finding of fact and it will not be set aside unless it is clearly erroneous on the record as a whole.  Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn. 2001).  The trial court need not be exact in its valuation of assets; “it is only necessary that the value arrived at lies within a reasonable range of figures.”  Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979).

Husband argues that the trial court improperly valued the Keyes Island property at $73,800 and contends the trial court’s ability to make an equitable decision was impaired because the trial court did not base its valuation upon an appraisal.  Husband contends the property should have been valued at either $225,000, based on husband’s opinion, or $128,500, based on the October 11, 2002, Krantz appraisal attached to husband’s new-trial motion.  We conclude, however, that the trial court’s valuation of the property was not clearly erroneous on the record as a whole. 

The trial court took the current fair market value of the property from the Koochiching County statement of property taxes payable in 2002, and added $10,000 for the fair market value of the improvements, to conclude that the property value was $73,800.  Husband argues that his opinion of the property value should be used.  But the trial court found wife was “the far more credible witness” and her “estimates of the value of the property to be divided were given much more weight than the inconsistent positions taken by” husband.[1]  The trial court noted that husband’s testimony was “clearly a self serving attempt to increase the values of the property likely to be awarded” to wife and decrease the “values of the property likely to be awarded to him.”  “Deference must be given to the opportunity of the trial court to assess the credibility of the witnesses.”  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  Accordingly, we will not disturb the trial court’s determination on the value of the Keyes Island property.

Husband also argues that a witness called for rebuttal should have been allowed to testify regarding the value of the property.  Wife’s attorney objected to this witness, because husband never disclosed the witness during discovery or on husband’s witness lists.  Wife’s attorney noted that the “only testimony on value has been the two parties.  They have each done it.  This is an effort to back door an expert in.”  The trial court sustained the objection noting that the witness is not offering rebuttal testimony, stating “[t]here is no rebuttal there.  [Wife] has given her testimony as to what she thinks it is.  [Husband] has given his testimony.  I don’t see any rebuttal there.”  Absent erroneous interpretation of law, the question of whether to admit or exclude evidence is within the trial court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  The trial court, in its discretion, ruled that the proposed testimony would not constitute a rebuttal of wife’s testimony as to her opinion of the property, because husband also testified as to his opinion of the property.  Although we might have ruled otherwise, because we review the trial court’s evidentiary rulings under a deferential “abuse of discretion” standard and because the trial court heard both parties testify as to their opinions on the value of the property, we will not disturb the trial court’s ruling.

Husband also argues that this court should reverse and remand for a new trial because the certified appraisal is newly discovered material evidence.  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.”  Minn. R. Civ. P. 59.01(d).  To qualify as newly discovered evidence, the evidence must have been in existence at the time of trial and cannot be expert testimony procured after the trial.  Swanson v. Williams, 303 Minn. 433, 436, 228 N.W.2d 860, 862 (1975).  Had husband used reasonable diligence, the appraisal could have been conducted and produced at trial; but husband failed to have the appraisal conducted before the August 28, 2002, discovery deadline.  Moreover, the appraisal is dated October 11, 2002—thus it was in existence and available more than a month prior to the November 19, 2002, trial date.  As wife rightly notes, husband could have notified the trial court and wife that an appraisal had been conducted, or brought a motion to allow the appraisal into evidence despite the discovery deadline; husband did neither.  Indeed, husband did not produce the appraisal until he filed his motion for a new trial.  Furthermore, the appraisal is not newly discovered evidence because it constitutes expert testimony procured after the trial.

The trial court’s valuation of the property was not clearly erroneous on the record as a whole; the trial court did not abuse its discretion in disallowing husband’s proffered “rebuttal” witness; and husband’s appraisal does not qualify as newly discovered evidence.  Therefore we affirm the trial court’s denial of husband’s motion for a new trial.

II

            Husband argues that the valuation date should have been January 28, 2002, the date the trial court signed the stipulated order determining temporary custody of the children.  Husband contends the stipulated order was essentially a prehearing conference, and Minnesota law provides that the valuation date must be the day of the initially scheduled prehearing unless the court makes specific findings that another date of valuation is fair and equitable.

A trial court has broad discretion in dividing property and in setting a valuation date, and its decision will stand unless it has abused that discretion.  Desrosier v. Desrosier, 551 N.W.2d 507, 510 (Minn. App. 1996).  The statute provides:

The court shall value marital assets for purposes of division between the parties as of the day of the initially scheduled prehearing settlement conference, unless a different date is agreed upon by the parties, or unless the court makes specific findings that another date of valuation is fair and equitable.

 

Minn. Stat. § 518.58, subd. 1 (2002).

            Here, there was no prehearing settlement conference.  As the trial court specifically noted in denying husband’s new trial motion:  “[t]here was no pretrial conference held . . . [and] using the date of dissolution, a date three months prior to trial, was fair and equitable.”  In a similar case where there was no prehearing settlement conference, this court upheld the trial court’s decision, noting, “the trial court exercised discretion and . . . adopted the date of separation as the valuation date.  This substitution was fair and equitable and not an abuse of discretion (although it should have been supported by findings).”  Desrosier, 551 N.W.2d at 510.  Although the trial court failed to make the statutorily required finding that a date other than the prehearing conference date was fair and equitable, the trial court stated so and, on this record as a whole, we see no abuse of discretion in the trial court’s selection of the date of dissolution as the valuation date.

            We note, as well, that our ruling here is influenced by the fact that husband has not demonstrated that he was prejudiced by the valuation date selected by the trial court.  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 minimus error).  Husband argues that the valuation date should exclude monies he placed in his business operating account after the date of dissolution (August 2002) and prior to trial.  Husband states that at the time of trial, he had approximately $13,500 in the operating account of his business; husband speculates that he had a similar amount three months earlier on the date of dissolution.  But the record indicates that the trial court did not include in its marital asset valuation any monies placed in husband’s business account between the date of dissolution and the time of trial.  Moreover, although the record is not entirely clear, it appears husband had less in the business account at the time of trial than he did at the end of August 2002 when the marriage was dissolved—i.e., there was no increase in valuation after August 2002.  Thus, husband’s argument that he was somehow harmed by the trial court’s valuation date has no merit.  Therefore, we conclude that the trial court did not abuse its discretion in using the date of dissolution as the valuation date for the parties’ assets.

Affirmed.

 



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

[1] In a property list husband prepared on August 26, 2002, two days before the originally scheduled trial date, husband valued the Keyes Island property at $55,300.  In a commercial financial statement husband prepared on February 14, 2000, and provided to a financial institution to seek a loan, he valued the property at $70,000.  Husband testified at trial that the property was valued at $225,000.