This opinion will be unpublished and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

A03-1378

 

 

In re the Marriage of:

Jualy Yang, petitioner,

Appellant,

 

vs.

 

Jer Yang,

Respondent.

 

 

Filed June 29, 2004

Affirmed in part, reversed in part, and remanded

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. DC266801

 

 

Timothy W.J. Dunn, Hlee Mai Ly, 1150 US Bank Center, 101 East Fifth Street, St. Paul, MN 55101-1808 (for appellant)

 

Thomas L. Steffens, Shannon L. Ort, Marcus P. Beyer, Steffens & Rasmussen, 300 Southdale Place, 3400 West 66th Street, Edina, MN 55435 (for respondent)

 

 

            Considered and decided by Schumacher, Presiding Judge; Lansing, Judge; and Stoneburner, Judge.


U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant-wife Jualy Yang challenges the district court judgment denying her spousal maintenance, dividing marital assets, and awarding respondent-husband Jer Yang $75,000 in conduct-based attorney fees.  Wife also argues the district court erred in denying her a Hmong interpreter and in adopting husband's proposed findings verbatim.  We affirm in part, reverse in part, and remand.

FACTS

            Both parties are Hmong immigrants and were married outside of the United States.  Thereafter, the couple immigrated and were formally married in the United States in 1981.

In 1995, wife started Hmong Senior Health Care Incorporated.  For three years, wife managed the business out of the parties' home while husband worked outside the home.  During these three years, the business's gross revenue increased from $7,000 to more than $200,000.  In August 1998, the business had grown to such a level that husband quit his outside employment and began working for Hmong Senior Health Care.

In the summer of 2000, wife left the business because of marital problems between the parties.  Husband has run the business since wife's departure.  The company has continued to grow, showing gross revenue of approximately $1,200,000 in 2000 and approximately $1,500,000 in 2001. 

            In January 2000, the parties purchased 110 acres of land in Corcoran, Minnesota.  At the time, the parties already owned a home in Minneapolis.   The Corcoran land was divided into a 30-acre parcel and an 80-acre parcel.  The parties contracted to have a $750,000 house built on the 30-acre parcel.  At the time of the dissolution, the Corcoran home was encumbered by a mortgage of approximately $165,000, and the 80-acre parcel was subject to a $390,000 contract for deed.

            Shortly after the parties moved into the Corcoran home, wife petitioned for dissolution of the parties' marriage.  The parties agreed to a bifurcated trial.  The first phase of the trial addressed the dissolution of the parties' marriage and child custody issues. 

After a three-day trial on the second phase, the district court concluded that neither party was entitled to spousal maintenance, awarded husband the 30-acres and home in Corcoran, and awarded wife the remaining 80 acres as well as the home in Minneapolis.  The court also concluded wife should pay husband $75,000 in conduct-based attorney fees and deducted the $75,000 from wife’s share of the marital assets.        

D E C I S I O N

            Wife did not move for a new trial in the district court.  Absent a motion for a new trial, our scope of review includes legal issues properly raised at trial, Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 308-11 (Minn. 2003), and whether the district court’s findings of fact support the conclusions of law.  Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989).  Findings of fact are not set aside unless clearly erroneous and, when determining whether the evidence supports the findings, we review the evidence in the light most favorable to those findings.  Minn. R. Civ. P. 52.01; Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993).

1.             Wife challenges the denial of spousal maintenance, arguing that the findings are not supported by the record and include what she argues are impermissible "fault" findings.  The district court has broad discretion in deciding whether to award maintenance.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  But the district court must make sufficient findings to permit meaningful appellate review of the issue.  See Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989) (remanding when district court failed to make adequate maintenance-related findings).

In denying wife's request for maintenance, the district court found wife's reasonable monthly expenses while residing at the parties' Minneapolis home to be $2,559 and that her annual gross income was $77,000.  The court did not determine wife's net monthly income, explain how much of wife's gross annual income was available to meet her reasonable monthly expenses, or explain how it arrived at wife's expenses or her annual income.  We remand for more explicit findings of wife's income and expenses and, if necessary, a reconsideration of whether wife is entitled to maintenance.

            We note wife's argument that two of the district court's findings are impermissible is incorrect.  She claims the district court's "finding" that discusses advances she has received from marital assets and the district court's determination that she has "married" another man in a Hmong ceremony since the district court's first order dissolving the parties' marriage are impermissible "fault" findings under Minn. Stat. § 518.552, subd. 2 (2002).  Under section 518.552, subdivision 2, the district court must determine the amount and duration of maintenance "without regard to marital misconduct."  Minn. Stat. § 518,552 subd. 2 (emphasis added).  The district court's "findings" do not involve "marital misconduct."

We also note that the district court characterized the equity in real estate award to wife as a liquid asset.  Although the supreme court has held "the district court's unwillingness to consider whether the particular real estate owned is a liquid asset constitutes a failure to exercise the court's discretion," the supreme court has made it clear that not all real estate is a liquid asset.  In re Stuart, 646 N.W.2d 520, 525-26 (Minn. 2002).

2.            Wife also argues the district court abused its discretion in dividing the marital property.  When a marriage is dissolved, the district court "shall make a just and equitable division of the marital property of the parties."  Minn. Stat. § 518.58, subd. 1 (2002).  "[E]qual division of the wealth accumulated through the joint efforts of the parties is appropriate on dissolution of a long term marriage."   Miller v. Miller, 352 N.W.2d 738, 742 (Minn. 1984).  Because the parties' marriage lasted more than 20 years, it was a long-term marriage.  See id. at 741 (noting parties had been married for 20 years).  Thus, we conclude the district court's equal division of the marital assets was a fair and equitable property division.

Wife argues the district court erred when it did not include as a marital asset $5,000 husband loaned his sister.  Assuming the district court should have included the loan in the marital assets, in light of the more than $2,000,000 in marital assets, the omission of $5,000 is de minimis error and does not make the division unjust or inequitable.  See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis error).

Wife also argues the district court erred in not including the value of the corporate savings account as a marital asset separate from the value of the business.  The district court awarded husband "the parties' business at its appraised value of $440,000 including all assets, accounts receivables, financial accounts, furniture, furnishings, and fixtures" and credited husband with receiving $440,000 worth of marital assets.  The appraisal of the company provides it is based in part on the "value of the tangible assets as represented on the books of the company and financial condition of the business."  The corporate savings account is a tangible asset of the business represented on the books of the business.  When the district court credited husband with receiving $440,000 in marital assets, that number properly included the value of the corporate savings account. 

Wife also contends that the district court's property division is impermissibly based on "fault."  But the behavior to which the district court referred to was wife's dissipation of the marital assets and not the marital misconduct that Minn. Stat. § 518.58, subd. 1, makes an impermissible consideration in dividing marital property.  When a party improperly transfers, encumbers, conceals, or disposes of marital assets in connection with a dissolution, the district court is required to charge the dissipating party for the lost marital assets.  Minn. Stat. § 518.58, subd. 1a .  Here, the district court did that.

            3.            Wife also argues the district court erred in awarding husband $75,000 in attorney fees.  An award of attorney fees "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion."  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  The district court may award conduct-based attorney fees against a party who unreasonably contributes to the length or expense of the litigation.  Minn. Stat. § 518.14, subd. 1 (2002).  But "conduct-based attorney fees under Minn. Stat. § 518.14, subd. 1, are to be based on behavior occurring during the litigation process, behavior occurring outside the litigation process is not a basis for a conduct-based fee award under that provision."  Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn. App. 2001). 

            The record supports the district court's award of conduct-based attorney fees.  It is unclear, however, how the court determined husband incurred $75,000 in attorney fees and whether the district court charged wife for attorney fees that husband incurred for actions outside the litigation process.  See Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992) (findings must permit meaningful review); see also Minn. R. Gen. Pract. 119.02 (motion for attorney fees shall be accompanied by affidavit specifically describing basis for amount sought).

We affirm the district court's award of conduct-based attorney fees but remand for findings regarding the appropriate amount.  We note that the attorney fees were included in the property division.  On remand, the district court has the discretion to adjust the property division in light of any changes made in the award of attorney fees.

            4.            Wife also argues the district court erred in not allowing a Hmong interpreter to directly translate for her.  She bases her argument on Minn. Stat. § 611.30 (2002).  Section 611.30 is part of chapter 611, which is labeled "Rights of Accused."  The purpose of this provision is to provide an interpreter to persons, who because of their limited knowledge of the English language are incapable of understanding the criminal charges against them, fully presenting a defense to those charges, or assisting in the presentation of their defense.  State v. Perez, 404 N.W.2d 834, 838 (Minn. App. 1987), review denied (Minn. May 20, 1987).  Here, wife was not a defendant in a criminal case, and there were no charges against her.  She was not entitled to an interpreter under this section.

Wife's claim is more appropriately analyzed under Minn. Stat. § 546.43, subd. 1 (2002), which provides, "In a civil action in which a handicapped person is a litigant or witness, the presiding judicial officer shall appoint a qualified interpreter to serve throughout the proceedings."  A person is handicapped in communication if "because of difficulty in speaking or comprehending the English language, [the person] is unable to fully understand the proceedings in which the person is required to participate, or when named as a party to a legal proceeding, is unable by reason of the deficiency to obtain due process of law."  Minn. Stat. § 546.42 (2002).

Here, wife did not ask the district court to appoint an interpreter.  Thus, the propriety of appointing an interpreter is not properly before us and we need not address that question.  See Doan v. Medtronic, Inc., 560 N.W.2d 100, 107 (Minn. App. 1997) (concluding appellant's failure to raise the need for an interpreter before the district court prevented this court from addressing issue on appeal), review denied (Minn. May 14, 1997).  Further, we note the record indicates that the district court believed wife was not handicapped in communication: wife testified she had worked as an interpreter (apparently a Hmong-English interpreter) in the past, and the court both took judicial notice of prior instances when wife had corrected the translation made by a court appointed interpreter and allowed wife to use her interpreter when she had difficulty with particular words or phrases.

5.            Wife also argues the district court committed reversible error by what she claims was a "wholesale adoption" of husband's proposed findings of fact and conclusions of law.  Verbatim adoption of proposed findings is not reversible error, but it raises "the question of whether the trial court independently evaluated each party's testimony and evidence." Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  Here, the district court adopted large parts of the husband's proposed findings of fact.  The fact that the court eliminated some of husband's language in the findings it did adopt and added its own findings demonstrates the court independently evaluated the evidence. 

            Affirmed in part, reversed in part, and remanded.