This opinion will be unpublished and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 of:

Amy Sue Wozniczka, petitioner,





Michael A. Wozniczka,



Filed July 27, 2004

Affirmed in part and reversed in part;

motion granted

Forsberg, Judge*


Dakota County District Court

File No. F8-02-15010



A. Rhett Taber, Olive, Taber & Owens, P.A., Suite 300, 5270 West 84th Street, Bloomington, MN 55437 (for respondent)


Mark A. Olson, Olson Law Office, 2605 East Cliff Road, Burnsville, MN 55337 (for appellant)


            Considered and decided by Peterson, Presiding Judge; Anderson, Judge; and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal in this dissolution matter, appellant challenges several aspects of the district court’s findings of fact and conclusions of law.  Because the evidence supports the district court’s award of sole legal and physical custody to respondent and the division of the parties’ property, we affirm.  But because the district court’s findings do not sufficiently support the award of attorney fees to respondent, we reverse.  Respondent’s motion to strike portions of appellant’s brief and appendix is granted.


            Appellant Michael A. Wozniczka and respondent Amy Sue Wozniczka were married for approximately nine years and have one child, who was three years old at the time of trial.  Appellant is an airline pilot with Mesaba Airlines, based in Minneapolis.  Respondent is a pharmaceutical sales representative.  Although appellant worked with three different attorneys throughout these proceedings, he elected to represent himself at trial.

            In its findings of fact, the district court addressed each of the statutory factors for a custody determination.  Appellant sought joint physical and legal custody, while respondent requested sole physical and legal custody.  According to the record, it is undisputed that, prior to the parties’ separation, respondent was the child’s primary caretaker, but that once respondent obtained full-time employment, appellant assumed a larger role in caring for the child.  Generally, the parties’ attempts at cooperation since the separation have not been successful, and, at the time of trial, the parties did not have a method in place to resolve disputes.

            The parties acquired fairly significant assets both prior to, and during, the marriage, including a home appraised at $300,000, various 401(k) plans, and other investments.  Prior to the marriage, appellant gave respondent a diamond engagement ring valued at $7,500.

            At trial, respondent called the parties’ marriage counselor to testify.  When the counselor took the stand, the district court went off the record.  When the district court came back on the record, the judge explained that she recognized the witness as her husband’s counselor, and acknowledged that she had attended one of her husband’s sessions with the counselor.  The judge stated that she did not believe this created a conflict and asked the parties “whether this was a cause of difficulty” for them.  The parties indicated that it was not, and the counselor proceeded to testify.

            After the two-day trial, the district court told the parties to submit final arguments and proposed findings.  Appellant submitted a letter argument, while respondent submitted both a letter argument and proposed findings.  Respondent also moved for $10,000 in attorney fees. 

            The district court awarded sole physical and legal custody to respondent and divided the parties’ assets so that each received $147,834.  Further, the district court awarded $5,000 in attorney fees to respondent.


            Where, as here, there was no motion for a new trial, an appellate court may review substantive issues of law properly raised at trial, as well as whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment.  Alpha Real Estate Co. v. Delta Dental Plan, 664 N.W.2d 303, 310 (Minn. 2003); Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).

I.  Verbatim Findings

            Appellant argues that the district court improperly adopted respondent’s proposed judgment and decree in a wholesale, verbatim fashion. 

            The verbatim adoption of a party’s proposed findings of fact and conclusions of law is not reversible error per se.  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  While this practice has been recognized as acceptable, appellate courts have strongly cautioned that the “wholesale adoption of one party’s findings and conclusions raises the question of whether the trial court independently evaluated each party’s testimony and evidence.”  Id.  If, after careful review of the record, this court concludes that the findings are not clearly erroneous, the verbatim adoption, standing alone, will not provide sufficient grounds for reversal.  Id. 

            In this case, the district court did not simply adopt respondent’s proposed findings and conclusions verbatim.  Rather, as appellant acknowledges in his brief, the district court made at least 10 changes to respondent’s proposed findings and conclusions.  Appellant asserts that the changes are nothing more than “window dressing.”  But we conclude that the changes are more substantial.  For example, two of the district court’s ten changes included altering the dollar values attributed to the parties’ automobiles and explaining that appellant failed to provide sufficient documentation regarding his nonmarital claims.

            Because the court made significant changes to respondent’s proposed findings, we are persuaded that the district court “independently evaluated each party’s testimony and evidence.”  Id.  Therefore, the alleged verbatim adoption of respondent’s proposed findings and conclusions is not, by itself, a sufficient basis for reversal.

II.  Physical Custody

            A district court has broad discretion to provide for the custody of the parties’ minor children.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  Pursuant to statute, custody determinations are based on the best interests of the child.  Minn. Stat. § 518.17, subd. 3(a)(3) (2002) (requiring district court to consider child’s best interests when awarding custody).  Currently, the law “leaves scant if any room for an appellate court to question the trial court’s balancing of the best-interests considerations.”  Vangsness v. Vangsness, 607 N.W.2d 468 (Minn. App. 2000).

            When evaluating a child’s best interests, a district court is required to address the 13 best-interests factors enumerated in Minn. Stat. § 518.17, subd. 1 (2002).  Further, a district court is prohibited from relying on one factor to the exclusion of all others.  Minn. Stat. § 518.17, subd. 1(a).  In this case, the district court expressly addressed all 13 factors in its findings and determined that it is in the child’s best interests for respondent to have sole physical custody, with reasonable access for appellant.  Appellant now disputes several of the district court’s findings regarding the best-interests factors.

            A.         Intimacy

            While he concedes that respondent was the child’s primary caretaker, appellant argues that there was no evidence to support the finding that respondent has a more intimate relationship with the child.  We disagree.

            The district court found that respondent is “more involved with the child, and her activities with the child are those that generate emotional intimacy. . . . the child has a strong positive attachment to [respondent].”  Respondent testified that she brought the child to Early Child Family Education (ECFE) so that she would “meet children of the same developmental age.”  Respondent further testified that the child displays “safety and secure behavior” when they are together, that respondent tries to discipline her in a way that will not harm her emotionally, and respondent believes that the child trusts her. Additionally, respondent testified that the child resists going to appellant’s house.  Appellant testified that he feels he needs to be with the child and that he has the ability to care for her and participate in her development.  

            Where there is conflicting evidence, appellate courts defer to the district court’s determinations of credibility and the weight to be given witness testimony.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  In this case, the district court believed respondent’s testimony and determined that she has a more intimate relationship with the child.  We defer to the district court’s findings and conclude that they are not clearly erroneous.

            B.         Parties’ Capacities to Give the Child Love, Affection and Guidance

            In considering the “capacity and disposition of the parties to give the [child], love, affection, and guidance, and to continue educating and raising the child in the child’s culture and religion,” the district court found that the parties are Catholic and both felt that it is important to raise their child in the Catholic tradition.  Appellant argues that he “should have prevailed in being the parent who could continue the child’s religious training because [respondent] does not take the child to church while [appellant] does whenever he has her.” 

            At trial, appellant testified that it was extremely important to him that the child attend church regularly, and he faulted respondent for her lack of church attendance.  Respondent agreed that the child would be raised in the Catholic faith.  When addressing this factor, the district court also relied on respondent’s willingness to involve the child in educational experiences, such as ECFE, and her capacity and disposition to give the child affection and guidance.  Aside from religion, appellant failed to present any evidence demonstrating how he would continue raising and educating the child.

            We determine that the district court duly considered the fact that appellant takes the child to church on a regular basis.  Because religion is but one portion of this factor, we cannot conclude that the district court clearly erred in its evaluation of the parties’ capacities to give the child love, affection, and guidance.

            C.        Mental and Physical Health of Parties

            Appellant claims that he “should have prevailed in the category of the parties’ mental health” because respondent takes a low-dose prescription anti-depressant.  Appellant also argues that respondent abuses alcohol by drinking it in conjunction with the use of the anti-depressant.

            At trial, respondent’s sister, who is a cardiologist, testified that she would not have concerns if one of her patients had limited use of alcohol while taking a prescription anti-depressant.  Likewise, another of respondent’s sisters, who is a pharmacist, testified that the use of alcohol with an antidepressant is not contraindicated.  Moreover, respondent’s therapist testified that he does not believe that she has a problem with alcohol.  Therefore, we conclude that there is sufficient evidence to support the district court’s finding that there is “no legitimate issue relative to [respondent’s] use of alcohol.”

            D.        Access Schedule

            The district court has wide discretion in deciding visitation matters, and this court will not reverse unless the district court has abused its discretion.  Manthei v. Manthei, 268 N.W.2d 45, 45-46 (Minn. 1978). The district court’s underlying findings of fact, on which a visitation decision is based, will be upheld unless clearly erroneous.  Crosby v. Crosby, 587 N.W.2d 292, 295 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  “It is well established that the ultimate question in all disputes over visitation is what is in the best interest of the child.”  Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984), review denied (Minn. June 12, 1984).

            According to the access schedule, appellant has the child for one overnight visit three weekends a month.  The fourth weekend of the month appellant has the child beginning Friday afternoon until Sunday evening.  Appellant also has one additional overnight visit during the week, depending on his schedule as an airline pilot.

            At trial, although appellant offered a summary claiming that he had the child 52% of the days and 37% of the overnights from June 2002 through June 2003, he failed to present any evidence as to what sort of access schedule he would have preferred.  Respondent disputed the assertions of appellant’s summary and testified that appellant did not have the child that frequently.  The district court determined that, even if the child spent more overnights with appellant, respondent was still primarily responsible for the child.  We agree.  Because appellant has failed on appeal to offer any factual basis demonstrating that the current access schedule is not in the best interests of the child, we cannot conclude that the district court abused its discretion in adopting respondent’s proposed access schedule.

III.  Legal Custody

            As previously stated, district courts have broad discretion in custody matters.  Rutten, 347 N.W.2d at 50.  In addition to the 13 best-interests factors considered when evaluating physical custody, when joint legal custody is sought, the district court is required to consider the following factors:

(a)       The ability of parents to cooperate in the rearing of their children.

(b)       Methods for resolving disputes regarding any major decision concerning the life of the child, and the parents’ willingness to use those methods;

(c)       Whether it would be detrimental to the child if one parent were to have sole custody over the child’s upbringing; and

(d)       Whether domestic abuse . . . has occurred between the parents.


Minn. Stat. § 518.17, subd. 2 (2002).  The statute also mandates that, unless domestic abuse has occurred between the parents, which it has not in this case, “[t]he court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child.”  Id. 

            Appellant argues that the district court clearly erred by finding that the parties are unable to cooperate.  Specifically, the district court found:

While during the period of the parties’ separation they have attempted to cooperate in the rearing of their child, the arrangement has been a source of constant stress.  [Respondent] testified that she was unable to discuss and resolve disagreements between herself and [appellant] because of his unwillingness to compromise.  In her words, it was “his way or no way.”  [Appellant] has continually shown an inability to compromise.  For example, the parties had a major dispute over the best way to potty train their child.  Their disagreement spilled over into a confrontation in the child’s daycare center between [appellant] and the daycare provider as to the appropriate use of “Pull-Ups” versus “big girl panties.”  The inability of the parents to cooperate will be a continuing source of conflict.  [Respondent] prior to the separation would sacrifice her own feelings regarding parenting and allow [appellant] to make the decisions.


Appellant argues that the parties are able to cooperate and claims that the only evidence of a dispute in the record was their argument over whether to get pepperoni or sausage on their pizza.  We disagree. 

            According to the record, in addition to the major disagreement over the best way to toilet train their child, the parties also disagreed regarding (1) whether it was necessary to bring their child to the doctor when she had a temperature of 103°; (2) appellant’s habit of driving with the child in the front seat of their two-seater car when they also own a four-seat sedan that was available for his use; (3) appellant’s decision not to buy a “big-girl” bed for their child to keep at his residence when the child was sleeping in a “big-girl” bed at respondent’s home; (4) appellant’s refusal to take a sick day from work to care for the child when she had a fever of 102.8°; and (5) which daycare the child should attend.

            In addition to the above examples of the parties’ inability to cooperate, their marriage counselor testified that while respondent was able to compromise with appellant to reach solutions, appellant was unwilling to make compromises to reach a middle ground.  See Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993) (where evidence indicates parties’ lack of ability to cooperate and communicate, sole legal custody is appropriate).  The district court also found that the parties do not have any methods in place to resolve disputes and that it would not be detrimental to the child if respondent has sole authority over the child’s upbringing because it would “diminish an ongoing source of conflict if only one parent were to have responsibility for the major decisions affecting the child’s life.”

            The evidence in the record sufficiently rebuts the presumption of joint legal custody.  The parties’ inability to cooperate with one another is amply supported by the record.  Therefore, the district court properly awarded sole legal custody to respondent.

IV.  Nonmarital Assets

            A.         Documentation Outside the Record

            As a threshold matter, appellant argues that because he was representing himself, the district court should have allowed him some latitude in presenting his evidence.  Specifically, appellant asserts that the court should have accepted financial documents that he attached to his closing argument.  The district court, however, declined to consider the documents because the record had closed. 

            Whether to receive evidence is discretionary with the district court.  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).

            Appellant cites Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001), for the proposition that some accommodation may be made for pro se litigants.  But Fitzgerald, quoted in full, actually states that “although some accommodations may be made for pro selitigants, this court has repeatedly emphasized that pro selitigants are generally held to the same standard as attorneys and must comply with court rules.”  Id.  The district court did not abuse its discretion by declining to address the documentation submitted after the record had closed.

            Appellant submitted the same documents to this court in the appendix to his brief.  Respondent moved to strike that portion of the appendix containing the documentation.  Appendices containing information that was not before the district court should not be considered on appeal because the record on appeal consists only of papers filed in the district court, exhibits, and transcripts.  Minn. R. App. P. 110.01.  Because the documents in the appendix were not part of the court record, respondent’s motion to strike is granted.  Midwest Family Mut. Ins. Co. v. AMCO Ins. Co., 422 N.W.2d 758, 760 (Minn. App. 1988), review denied (Minn. June 29, 1988); Cressy v. Grassman, 536 N.W.2d 39 (Minn. App. 1995), review denied (Minn. Sept. 28, 1995). 

            B.         Nonmarital Interest in Credit Union Account

Whether property is marital or nonmarital is a question of law, but a reviewing court must defer to the trial court’s underlying findings of fact.  However, if we are left with the definite and firm conviction that a mistake has been made, we may find the trial court’s decision to be clearly erroneous, notwithstanding the existence of evidence to support such findings.


Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997) (quotation and citations omitted).

            Property acquired by either party after marriage and before the valuation date is presumed to be marital property.  Minn. Stat. § 518.54, subd. 5 (2002).  But the presumption of marital property may be overcome by showing that the property is nonmarital.  Id.  Nonmarital property includes property that was acquired before the marriage.  Id.

            Appellant claims that the district court disregarded relevant evidence regarding the nonmarital nature of his account at Northwest Airlines Federal Credit Union (NWA FCU).  The district court found that appellant “offered no credible evidence to support any non-marital claim to this account.” 

            The NWA FCU account was originally a Wells Fargo account and, therefore, in support of this claim, appellant introduced a photocopy of a check register from a Wells Fargo account showing a balance of $13,408.33 as of October 7, 1994, the day before the parties married.  Appellant claims in his brief that he withdrew $4,200 from the Wells Fargo account to pay for wedding expenses.  The check register indicates a withdrawal of $4,200 on that day, but the memo portion of the register is blank, and at trial, appellant did not testify that the $4,200 withdrawal represented money for wedding expenses.  Appellant did testify, however, that the account at issue “continued in existence” during the marriage and that his paychecks would go into that account.

            Because there is a presumption under the law in favor of marital property and because appellant failed to introduce any meaningful evidence demonstrating that the funds in the NWA FCU account at the time of trial were nonmarital, the district court did not err in holding that the account is marital property.

            C.        Fidelity Investment Account

            Appellant has a Fidelity investment account set up for passive reinvestment.  At the time of trial, the account was valued at $102,152.  Respondent submitted into evidence a 1995 investment report statement indicating that the Fidelity account balance as of January 1, 1995, was $18,872.24.  Because the parties married in 1994, the district court determined that any increase in the value of the Fidelity account after that point is marital.  Therefore, the district court subtracted $18,872.24 from $102,152 and declared the remaining $83,280 to be marital property. 

            Appellant claims that exhibit 31 shows that appellant transferred $37,512.76 into the IRA portion of the account at the end of 1995 and that the transfer was “clearly from pre-existing non-marital sources” because “the maximum contribution to an IRA account was $2,000 in 1995.”  Appellant, however, did not make this claim to the district court, and this court will generally not consider matters not argued and considered below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Moreover, appellant asks this court to make several assumptions as to what the nonmarital portion of the Fidelity account could be.  We decline to second-guess the findings of the district court.  Appellant failed to rebut the presumption that all of the money submitted into the Fidelity account after the marriage is marital property.

V.  Wells Fargo Account

            District courts have broad discretion over the division of marital property, and appellate courts will not alter a district court’s property division absent a clear abuse of discretion or an erroneous application of the law.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000) (clear abuse of discretion), review denied (Minn. Oct. 25, 2000); Ebnet v. Ebnet, 347 N.W.2d 840, 842 (Minn. App. 1984) (misapplication of the law).  A district court abuses its discretion regarding a property division if its findings of fact are “against logic and the facts on [the] record.”  Rutten, 347 N.W.2d at 50.  We “will affirm the trial court’s division of property if it had an acceptable basis in fact and principle even though [the appellate court] might have taken a different approach.”  Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002).

            Respondent testified that she maintains a Wells Fargo checking account to pay her bills, and, therefore, the account has a minimal balance that varies throughout the month.  Because the account is almost exclusively used to pay for household bills, we conclude that district court’s decision to forego dividing the account is not “against logic and the facts on the record,” and, therefore, not an abuse of discretion.

VI.  Appellant’s Net Monthly Income

            A district court’s findings on net income for purposes of child support will be affirmed on appeal if those findings have a reasonable basis in fact and are not clearly erroneous.  State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).  “Net income” is defined as the obligor’s total monthly income less 

(i) federal income tax (ii) state income tax (iii) social security deductions (iv) reasonable pension deductions (v) union dues (vi) cost of dependent health insurance coverage (vii) cost of individual or group health/hospitalization coverage or an amount for actual medical expenses [and] (viii) a child support or maintenance order that is currently being paid.


Minn. Stat. § 518.551, subd. 5(b) (2002).

            In this case, the district court found appellant’s gross monthly income to be approximately $4,937 and net monthly income to be approximately $2,991.  Appellant argues that the district court erred by averaging his income from the years 1999-2002 based on federal tax returns because his income has been steadily declining.  At trial, appellant failed to introduce any evidence of his current income.  Respondent, however, submitted a copy of appellant’s check stub dated March 7, 2003 (a date four months before trial) as proof of appellant’s health and dental insurance, 401(k) contribution, and pilots’ union contribution.  Appellant now argues that based on this single check stub, his gross monthly income is $4,330 and therefore, his net monthly income is $2,503.

            Appellant’s reliance on a single check stub is misplaced.  As demonstrated by the federal tax returns and as conceded by appellant, his income has varied over a range of several thousand dollars over a four-year period.  Therefore, we conclude that the district court’s calculation of appellant’s income has a reasonable basis in fact and is not clearly erroneous.

VII.  Child Support

            A district court has broad discretion to determine child support, and we will not reverse its decision absent an abuse of discretion.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).  An abuse of discretion occurs when the district court “resolves the matter in a manner that is against logic and the facts on the record.”  In re Paternity of J.M.V., 656 N.W.2d 558, 562 (Minn. App. 2003), review denied (Minn. Apr. 19, 2003).  An abuse of discretion also occurs when the district court improperly applies the law to the facts.  Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998).

            The district court ordered appellant to pay child support in the amount of $748 per month, or 25% of his net monthly income, in accordance with the guidelines.  See Minn. Stat. § 518.551 (2002).  The “guidelines” amount is a rebuttable presumption.  Id., subd. 5(i).  “If the court does not deviate from the guidelines, the court shall make written findings concerning the amount of the obligor’s income used as the basis for the guidelines calculation and any other significant evidentiary factors affecting the determination of child support.”  Id. 

            Appellant argues that the court failed to consider the expenses of the child and the parent pursuant to Minn. Stat. § 518.551, subd. 5(c), in setting child support and in awarding the dependency exemption to respondent.  But the court made findings regarding the income and expenses of both parties:  (1) appellant’s net monthly income is $2,991, with monthly expenses of approximately $2,777; and (2) respondent’s net monthly income is approximately $3,583, with monthly expenses for herself and the child of $4,044.  Therefore, the district court did not abuse its discretion in ordering appellant to pay child support in the amount recommended by the guidelines. 

VIII.  Engagement Ring

            Appellant argues that the district court abused its discretion by categorizing respondent’s engagement ring as nonmarital property. 

            As previously stated, whether property is marital or nonmarital is a question of law.  Olsen, 562 N.W.2d at 800.  But appellate courts defer to the district court’s underlying findings of fact and will not find the court’s decision to be clearly erroneous unless it is left with the definite and firm conviction that a mistake has been made.  Id.

            Appellant relies on Benassi v. Back & Neck Pain Clinic, Inc., 629 N.W.2d 475, 484 (Minn. App. 2001), review denied (Minn. Sep. 11, 2001), for the proposition that an engagement ring becomes marital property once the parties marry.  But Benassi is inapposite here because it addressed the rightful owner of an engagement ring when the engagement is broken.  The facts of Linderman v. Linderman, 364 N.W.2d 872, 877 (Minn. App. 1985), are more similar to the facts of this case. 

            In Linderman, the husband claimed that his wife’s engagement ring and wedding band were his nonmarital property because he bought them prior to the marriage with nonmarital funds.  Id.  This court, relying on Minn. Stat. § 518.54, subd. 5(b), concluded that, because the property was acquired by the wife before the marriage, the engagement ring and wedding band were her nonmarital property.  Id.

            Similar reasoning applies here.  Respondent acquired the engagement ring prior to the marriage and it became her nonmarital property.  Therefore, the district court did not clearly err in classifying the engagement ring as respondent’s nonmarital property.

IX.  Respondent’s Nonmarital Interest in Former Homestead

            District courts have broad discretion over the division of marital property, and appellate courts will not alter a district court’s property division absent a clear abuse of discretion or an erroneous application of the law.  Chamberlain, 615 N.W.2d at 412.

            Respondent introduced into evidence, without objection from appellant, a computation of her nonmarital interest in property that she owned prior to the marriage.  Respondent testified that she purchased the former homestead in 1993 for $85,000 and lived there for approximately one year before appellant moved in.  She further testified that the home sold in 1999 for $136,000.  To calculate her nonmarital interest, respondent subtracted the purchase price from the sale price ($136,000 - $85,000), resulting in a difference of $51,000.  She then divided the difference by 5.25, the years of ownership, resulting in an average increase per year of $9,714.  Respondent then added $9,714 to the purchase price ($85,000) to account for the one year that she lived in the house alone prior to the marriage and ended up with a market value on the date of marriage of $94,714.  Therefore, appellant had $9,471 in equity on the date of the marriage or approximately 10% of the value of the house.  When the house sold in 1999 for $136,000, therefore, respondent’s 10% nonmarital interest in the house equaled $13,600.

            Appellant argues for a more exact calculation, claiming that the house appreciated more in the later 1990s than it did in the earlier 1990s.  But neither party introduced any evidence regarding the rate of appreciation at trial.  To consider such evidence on appeal would be outside the scope of this court’s review. 

            Respondent deposited the $13,600 from the sale of the former homestead into a Fidelity investment account and rolled over $5,592 into the account from a job she held prior to the marriage.  Respondent, therefore, asserted to the court that the total nonmarital contributions to her Fidelity account amounted to $19,192, leaving a marital interest in the account of $2,285.  Appellant suggests that respondent should not be able to claim the $13,600 as a nonmarital portion of the Fidelity account because she failed to account for $28,000 of the $48,000 net proceeds that were paid from the sale of the former home.  But appellant fails to cite any support for the proposition that failure to account for proceeds from a transaction is a basis to deny a nonmarital tracing claim.

            Appellant also claims that respondent failed to introduce evidence regarding the value of the former home and instead introduced a “summary,” which is not considered evidence.  But respondent testified that she believed the document represented, to the best of her memory, her nonmarital interest in the property.

            We conclude that there is a reasonable basis for the district court’s determination that respondent is entitled to a nonmarital claim of $19,192.

X.  Recusal

            Appellant argues that the district court judge should have recused herself when she realized that the parties’ marriage counselor, who was called to testify by respondent, was her husband’s therapist, and that she accompanied her husband to one of his sessions.  But appellant did not make this claim to the district court.  This court generally will not consider matters not argued and considered in the court below.  Thiele, 425 N.W.2d at 582.  Even if we were to consider the issue, the district court did not abuse its discretion by not recusing.

            Whether a judge should recuse from a case is discretionary with the district court.  Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).  Judges should be sensitive to the appearance of impropriety and should take measures to assure that litigants have no cause to think their case is not being fairly judged.  Id.  But “a judge who feels able to preside fairly over the proceedings should not be required to step down upon allegations of a party which themselves may be unfair or which simply indicate dissatisfaction with the possible outcome of the litigation.”  Id.

            In this case, appellant has not demonstrated that he was prejudiced by the district court judge’s decision to hear this case.  Appellant had the opportunity to object to the court’s decision not to recuse and failed to do so.  The district court judge did not abuse her discretion in deciding not to recuse.

XI.  Attorney Fees

            By posttrial motion and affidavit, respondent requested $10,000 in attorney fees.  The district court granted respondent $5,000 in attorney fees, stating that a “large portion of the [attorney] fees incurred was due to the contentious nature of the proceedings caused by [appellant’s] unwillingness to compromise.  Additionally, it would be an unfair hardship upon [respondent] to be responsible for all of her fees.”  Appellant claims that neither the record nor the law supports the award of attorney fees.

            The award of attorney fees is governed by Minn. Stat. § 518.14, subd. 1 (2002), which allows for the award of both conduct-based and need-based attorney fees.  Because the standards for granting conduct-based and need-based fee awards are different, fee awards made under Minn. Stat. § 518.14, subd. 1, must indicate to what extent the award was based on need or conduct or both.  Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001).  To award fees based on need, the district court must find that (1) the award is necessary to the recipient’s good-faith assertion of rights, (2) the payor has the ability to pay the fees, and (3) the recipient does not have the means to pay them.  Minn. Stat. § 518.14, subd. 1.  “Conclusory findings on the statutory factors do not adequately support a fee award.”  Geske, 624 N.W.2d at 817.  The court must make specific findings regarding the parties’ respective incomes and expenses.  See id. at 817-18 (discussing findings necessary to support need-based award under Minn. Stat. § 518.14, subd. 1).
            To award conduct-based fees, the district court must identify the offending conduct, the conduct must have occurred during the litigation process, and the conduct must be found to have unreasonably contributed to the length or expense of the proceeding.  Minn. Stat. § 518.14, subd. 1; Geske, 624 N.W.2d at 819.  Because respondent requested attorney fees, the burden was on her to show that appellant’s conduct unreasonably contributed to the length or expense of the proceeding.  Geske, 624 N.W.2d at 818.

            Here, the district court failed to indicate to what extent the $5,000 fee award was based on need, conduct, or both, and, therefore, we are precluded from effectively reviewing the fee award.  Moreover, although the court suggests that appellant’s unwillingness to compromise lengthened the proceedings, the district court does not explain how that unwillingness to compromise extended the proceedings.  Thus, we conclude that the district court abused its discretion by awarding attorney fees to respondent.

            Affirmed in part and reversed in part; motion granted.


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