This opinion will be unpublished and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

A03-974

 

In re the Marriage of:

Janet L. LaPointe, f/k/a Janet L. Taylor, petitioner,

Respondent,

 

vs.

 

Richard F. Taylor,

Appellant.

 

Filed May 25, 2004

Affirmed in part, reversed in part, and remanded

Robert H. Schumacher, Judge

 

Isanti County District Court

File No. F301700

 

Mark W. Benjamin, Parker, Satrom, O'Neil & Benjamin, P.A., 123 South Ashland, Cambridge, MN 55008 (for respondent)

 

Michelle L. A. Kelsey, Tessneer Law Office, 126 South Adams Street, Suite B, Cambridge, MN 55008 (for appellant)

 

            Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

In this dissolution appeal, appellant Richard F. Taylor argues that the district court overvalued his 401(k) account, should not have awarded respondent Janet L. LaPointe, f/k/a Janet L. Taylor, a nonmarital interest in the parties' marital home, and abused its discretion by awarding LaPointe attorney fees and denying his motion for a new trial.  The record supports the valuation of the 401(k) account, the award to LaPointe of attorney fees, and the denial of a new trial.  It is unclear whether LaPointe traced part of the nonmarital interest in the home awarded by the district court.  We affirm in part, reverse in part, and remand.

FACTS

In June 2001, LaPointe petitioned to dissolve her five-year marriage to Taylor.  Taylor hired an attorney and gave her a box of documents containing his 401(k) statements from 1996 to 2000, bank statements, and payroll stubs.  When mediation was unsuccessful in resolving the parties' disputes regarding the values of their marital homestead and 401(k) plans, Taylor stated he wanted to obtain a second appraisal of the marital homestead and an appraisal of the marital and nonmarital values of their 401(k) plans.  Three months later, LaPointe's attorney requested a scheduling conference to set a trial date because the appraisals had not been obtained.  Trial was set for June 17, 2002. 

Taylor's attorney contacted Taylor in January 2002 to inform him that his box of documents was missing.  Taylor did not act on this information until May 2002, when his attorney informed him that the box of documents could not be found.  At that point he attempted to reconstruct the contents of the box.  The district court granted Taylor a continuance so he could reconstruct his 401(k) information, and the trial was rescheduled for August 30, 2002.

On the trial date, Taylor requested another continuance because he did not have his 401(k) information.  Taylor told the district court that Fidelity Investments, the company administering his 401(k), advised him they did not have his 401(k) information and that he should contact his employer for the information.  Taylor's employer advised him they only had 401(k) information for 1996, that his 401(k) information from 1996 to 2000 was held by Fidelity, and that Fidelity lost this information.  Taylor stated he had obtained an appraiser who was willing to reconstruct the missing 401(k) information but more time was needed to complete the reconstruction.  The district court denied Taylor's request for a continuance. 

After trial, the district court found not credible Taylor's claim that he was unable to reconstruct his missing 401(k) information before trial.  The district court used two documents submitted into evidence that showed the balance of Taylor's 401(k) account in the third quarter of 1996 and the second quarter of 2000 to reconstruct the value of Taylor's 401(k) during the marriage.  Based on these documents, the court determined that the net marital equity in Taylor's 401(k) plan was $159,214.  The district court also found that LaPointe had made nonmarital contributions to the homestead in the amount of $32,784.  The court awarded LaPointe a cash settlement of $130,208.50 and ordered Taylor to pay LaPointe $1,725.50 in conduct-based attorney fees. 

Taylor moved for a new trial on the grounds of misconduct, newly discovered evidence, excessive damages awarded due to passion or prejudice, and a verdict not justified by the evidence or contrary to law.  The district court denied these motions. 

D E C I S I O N

1.         The valuation of an asset is a finding of fact that will not be set aside on appeal unless clearly erroneous.  Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn. 2001).  A district court need not be exact in its valuation of an asset; "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).  The valuation of an asset "should be supported by either clear documentary or testimonial evidence or by comprehensive findings issued by the [district] court."  Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983); Fastner v. Fastner, 427 N.W.2d 691, 696 (Minn. App. 1988). 

Taylor argues that the district court "speculated" about the value of the 401(k) account during the marriage because the valuation was based on only two quarterly statements from his 401(k) plan provider.  But these statements are the only documentary evidence of the value of Taylor's 401(k) account.  They show the rate of return on the account in the third quarter of 1996 and in the second quarter of 2000.  Using these statements, the district court found the average rate of return for the 401(k) account during the marriage and used this average to calculate the account's value during the marriage.

The district court's valuation of the account is supported by comprehensive findings and calculations showing how the court computed the account's value.  On this limited record, the district court's valuation of Taylor's 401(k) account is logical, and the finding of $159,214 in net equity accruing during the marriage is not clearly erroneous. 

2.         Taylor argues that the district court erred by ruling that $159,214 of equity in the 401(k) account on the valuation date was marital property.  All property acquired by either spouse after the marriage and before the valuation date is presumptively marital.  Minn. Stat. § 518.54, subd. 5 (2002).  A party alleging property to be nonmarital must, by a preponderance of the evidence, show it has been kept separate from marital property or, if commingled, is readily traceable to a nonmarital source.  Freking v. Freking, 479 N.W.2d 736, 738 (Minn. App. 1992) (burden of proof); Wiegers v. Wiegers, 467 N.W.2d 342, 344 (Minn. App. 1991) (traceability).  Whether property is nonmarital is a legal question, but we defer to a district court's underlying findings of fact.  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).

Here, because neither party submitted evidence showing a nonmarital interest in the portion of the 401(k) account accruing during the marriage, the presumption that those funds were marital was not rebutted, and we affirm the district court's treatment of that portion of the account as marital property.

Taylor also challenges the award to LaPointe of a $32,784 nonmarital interest in the parties' homestead.  He argues that LaPointe did not trace to a nonmarital source most of the funds that she claims she expended on the homestead.  At trial, LaPointe testified to, and entered documents supporting, a tracing of $14,586.54 in improvements of the marital home to the sale of her nonmarital home.  Therefore, the district court did not clearly err by finding that LaPointe successfully traced a nonmarital interest in the marital homestead of $14,586.54.  See Doering v. Doering, 385 N.W.2d 387, 391 (Minn. App. 1986) (deferring to district court's ability to judge credibility and affirming finding of nonmarital interest in property where sole evidence of tracing was party's testimony). 

LaPointe also submitted documents showing that, between 1996 and 2000, she had written $26,283.52 in checks for other improvements to the marital home.  The district court found that LaPointe successfully traced $18,197.46 of these improvements to nonmarital funds in her individual checking account.  The record shows that LaPointe's paychecks were deposited into her individual checking account during the marriage, as were payments from her retirement fund after she retired in 1996.  These payments fit the definition of marital income.  Minn. Stat. § 518.54, subd. 6 (2002).  Thus, LaPointe commingled marital and nonmarital funds in her checking account during the period when she wrote the checks for this set of improvements.

Because the account used to pay for these improvements contained commingled funds and because the district court did not address the ultimate source of the funds used for these improvements, we cannot address whether LaPointe successfully traced the $18,197.46 to nonmarital funds.  Therefore, we reverse the finding that LaPointe successfully traced the $18,197.46 of improvements to the marital home and remand for the district court to address whether LaPointe used marital or nonmarital funds to pay for these improvements and to make any necessary adjustment in the property distribution. 

3.         Taylor challenges the award to LaPointe of conduct-based attorney fees.  See Minn. Stat. § 518.14, subd. 1 (2002) (allowing awards of conduct-based attorney fees).  We will not alter a district court's fee award absent an abuse of the district court's discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  The district court found that LaPointe unnecessarily incurred attorney fees due to Taylor's "bad faith, misrepresentations and delay" in obtaining an appraisal of his 401(k) account and that Taylor was not credible when he testified that he had no records in his possession showing the balance of his 401(k) account, that Fidelity could not provide the history of the account, and that he needed more time to have an appraisal completed.  Because we defer to district court credibility determinations, Taylor has not shown that the fee award was an abuse of the district court's discretion.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). 

4.         At the hearing on his new-trial motion, Taylor testified that, two days before trial, he received information showing his 401(k) account was worth less than the value found by the district court, but that he did not present the information to the district court.  In this court, he states that, after trial, he acquired an expert valuation of the account, and argues that he was entitled to a new trial under Minn. R. Civ. P. 59.01(d) for newly discovered evidence.  Neither the information nor the appraisal was newly discovered evidence.  See Minn. R. Civ. P. 59.01 (defining newly discovered evidence as evidence that "with reasonable diligence could not have been found and produced at trial"); Swanson v. Williams, 303 Minn. 433, 436, 228 N.W.2d 860, 862 (1975) (holding expert testimony procured after trial is not newly discovered evidence under rule 59.01).  Therefore, Taylor was not entitled to a new trial for newly discovered evidence.

Arguing that the cash settlement and the attorney fees the district court awarded LaPointe are excessive, Taylor alleges he should have been awarded a new trial under Minn. R. Civ. P. 59.01(e) for excessive damages.  LaPointe's cash settlement is supported by the district court's calculations, which show how the marital estate was divided.  And an affidavit submitted to the district court by LaPointe's attorney shows the attorney fees and costs LaPointe incurred due to Taylor's failure to produce information about his 401(k) account in a timely manner.

The district court did not abuse its discretion by denying Taylor's motion for a new trial on the grounds of excessive damages.  See Advanced Training Sys., Inc. v. Caswell Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984) (stating district court's decision regarding whether to grant new trial for excessive damages will not be altered absent abuse of discretion).

Taylor argues that the district court abused its discretion by failing to grant him a new trial under Minn. R. Civ. P. 59.01(g) on the grounds that the "verdict" is not justified by the evidence or is contrary to law.  To the extent Taylor argues the evidence does not justify the valuation of his 401(k) account because the findings are based on speculation and that the record does not support the finding that LaPointe traced $32,784 in nonmarital contributions to the homestead, those arguments are addressed above. 

Finally, Taylor also alleges that the district court awarded LaPointe a portion of his nonmarital funds due to hardship and that this award is contrary to law because the district court failed to make the findings required for such an award by Minn. Stat. § 518.58, subd. 2 (2002).  Taylor fails to identify what portion of LaPointe's settlement he claims is his nonmarital property, and we see no indication that the district court awarded LaPointe any of Taylor's nonmarital property for reasons of hardship or otherwise. 

Affirmed in part, reversed in part, and remanded.