This opinion will be unpublished and

may not be cited except as provided by

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







In Re: Virginia L. Cleve, petitioner,





William J. Cleve,



Filed January 11, 2005

Affirmed in part, reversed in part

Toussaint, Chief Judge


Hennepin County District Court

File No. DW 281576


Ronald Resnik, Suite 340, 6200 Shingle Creek Parkway, Brooklyn Center, MN 55430 (for appellant)


William J. Cleve, 7709 67th Avenue North, Minneapolis, MN 55428 (pro se respondent)


            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


            On appeal in this marital dissolution matter, appellant Virginia L. Cleve challenges the district court’s apportionment of the parties’ credit card debt, maintenance-related findings of fact, and award of conduct-based attorney fees to respondent William J. Cleve.  We reverse the district court’s division of the parties’ credit card debt, but affirm on the remaining issues.


            Where, as here, there is no motion for a new trial or amended findings, this 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 of Minn., 664 N.W.2d 303, 310 (Minn. 2003); Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).  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).


            Appellant first challenges the district court’s apportionment of the parties’ $8,400 VISA debt.  The district court ordered the parties to sell their homestead, pay the existing mortgage from the real estate proceeds, and divide the balance of those proceeds as follows:

(a)               [Respondent] shall receive his non-marital share of the homestead, equal to 7.35% of the gross selling price.


(b)              $8,400 shall be paid on the existing VISA debt.  Any balance owed to VISA shall be paid by [appellant].


(c)              Each party shall be entitled to one-half of the remaining proceeds, except that if [appellant] has not otherwise satisfied the award of attorney’s fees, as otherwise specified in this Judgment and Decree, then $1,200 of [appellant’s] one-half share shall be paid to [respondent].


            Appellant argues that it was inequitable for the district court to order her to pay the balance remaining on the VISA debt where she testified that respondent incurred the debt by gambling.  Appellant further argues that respondent should be solely responsible for payment of the debt or, minimally, should be responsible for any excess of the debt not satisfied by the sale of the homestead.  

            The district court has broad discretion in apportioning the parties’ debt.  Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984).  Although the apportionment must be just and equitable, it need not be equal.  Justis v. Justis, 384 N.W.2d 885, 888 (Minn. App. 1986), review denied (Minn. May 29, 1986).  Therefore, even if the debts are marital, the district court may apportion to one party a substantial amount of the marital debt or the debt in its entirety.  See, e.g., Lynch v. Lynch, 411 N.W.2d 263, 266 (Minn. App. 1987) (affirming requirement that husband pay all marital debts), review denied (Minn. Oct. 30, 1987). 

            But in reviewing whether the debt division is equitable, this court often considers the parties’ ability to pay the debt.  See Maher v. Maher, 393 N.W.2d 190, 194 (Minn. App. 1986) (apportionment of debt upheld where district court considered husband more able to pay parties’ debts given his steady source of income); Justis, 384 N.W.2d at 889 (apportioning appellant entire marital debt was not erroneous where respondent had limited financial resources and custody of parties’ children).  This court also considers the party responsible for incurring the debt, and the nature of the debt, when reviewing the equity of the division.  See Jones v. Jones, 402 N.W.2d 146, 149 (Minn. App. 1987) (apportionment of debt to husband upheld where husband voluntarily incurred exorbitant debts and failed to show any reason why wife should be forced to pay for half); Dahlberg, 358 N.W.2d at 80 (finding no abuse of discretion in assigning entire marital debt to husband where he was awarded greater share of assets, had high-paying job, and had incurred most of marital debt without consulting his wife); Filkins v. Filkins, 347 N.W.2d 526, 529 (Minn. App. 1984) (apportionment of majority of parties’ debt to husband upheld where debts were made by him for his own purposes and where he had greater ability to pay those debts). 

            At trial, appellant testified that respondent incurred the $8,400 VISA debt during the marriage by gambling, and respondent did not address or refute this allegation.  Appellant also testified that respondent filed bankruptcy on that debt and that she did not join in that bankruptcy.  Furthermore, the district court found that respondent will have approximately $1,475 in retirement income and assets worth about $70,000, while appellant will have $570 net income and assets worth about $95,000 or more, depending on the value of her jewelry. 

            While the district court properly ordered the parties’ to pay the VISA debt with the proceeds remaining after the sale of their homestead, we reverse the apportionment of any remaining debt to appellant.  Given the nature of the debt, respondent’s responsibility for incurring it, and that both parties appear to have relatively equal ability to pay, we conclude that responsibility for the remaining debt properly rests with respondent. 



            Appellant also challenges the district court’s order that she “vacate the house no later than midnight on Monday, March 15, 2004.”  Appellant cites no authority for her position, but argues that the district court’s findings do not support its order and that the district court was biased against her.

             In an order filed February 9, 2004, the district court specifically addressed respondent’s request that appellant vacate the homestead.  There, the court noted that both parties had continued to reside in the homestead after it was placed on the market and that respondent was paying the mortgage and other homestead-related costs.  The court also found that respondent was alleging a “pattern of continuing harassment from [appellant],” that the parties could not continue living together, and that “the true issue . . . is which party should have to move first.”  The court then made the following findings:

[Appellant] has some assets (the Wells Fargo non-marital account, which was $47,000 just last October); [respondent] has no assets other than the home equity; [respondent] is making the payments on the home; [appellant] does not have employment income with which to make the house payments.  [Appellant] has previously asserted that she has no money, not taking into consideration the Wells Fargo account. . . .


             The issue has no easy answer.  Considering all the circumstances, it is appropriate for [appellant] to move immediately.  She has some cash assets; she is likely to be staying in the Twin Cities upon sale of the homestead; her immediate move is something which the Court presumes she has considered and planned.  Her plan to stay in the homestead by buying out [respondent’s] interest was not feasible; when given the opportunity, she was unable to implement that plan.  Further, the Court is concerned that were she in the homestead without [respondent], there is the risk that she will obstruct the sale process; she does not want the homestead to sell.  [Appellant’s] credibility has been damaged; it is more likely than not that [appellant] has engaged in the harassment complained of by [respondent].


            This court gives due regard to the district court’s opportunity to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01.  Consequently, the district court could properly conclude that respondent’s claims of harassment were more credible than appellant’s denial.  Furthermore, appellant’s claims of bias are unsubstantiated.  Therefore, because the record supports the district court’s findings, and because the findings support the court’s conclusion that appellant should vacate the homestead, we affirm on this issue.


Next, appellant challenges the district court’s spousal maintenance award.  The decree awarded permanent maintenance to appellant in the amount of $250 per month, beginning February 1, 2004.  Respondent testified that he planned to retire from Honeywell, after 41 years of service, “as soon as the divorce is final.”  The district court specifically found that respondent “intends to retire . . . on or about January 1, 2004” and that this decision was “not in bad faith.”  Consequently, the maintenance award was based on 15 percent of respondent’s net monthly income from his retirement plan, not on his current net income.  Although appellant cites no authority supporting her position, she argues that respondent’s maintenance obligation should be based on his current net income, rather than the income he will receive upon his imminent retirement.

            A district court may award spousal maintenance if it finds that the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs or is unable to provide adequate self-support through appropriate employment.  Minn. Stat. § 518.552, subd. 1(a), (b) (2002).  When determining the amount and duration of maintenance, a district court must consider the factors in Minn. Stat. § 518.552, subd. 2 (2002), but the basic issue in setting maintenance “is the financial need of the spouse receiving maintenance, and the ability to meet that need, balanced against the financial condition of the spouse providing the maintenance.”  Novick v. Novick, 366 N.W.2d 330, 334 (Minn. App. 1985); see also Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).  In order to determine a spouse’s ability to pay, “the court must make a determination of the payor spouse’s net or take-home pay.”  Kostelnik v. Kostelnik, 367 N.W.2d 665, 670 (Minn. App. 1985), review denied (Minn. July 26, 1985).  Here, the district court found that the parties relied solely on respondent’s income during the marriage, that appellant lacked sufficient resources to provide for her reasonable needs, and that while appellant is capable of working, her income from self-employment would be “low.”  Therefore, the district court’s decision to award maintenance was appropriate.  Furthermore, in setting the amount of that award, the district court properly considered the statutory factors.  See Minn. Stat. § 518.552, subd. 2.  Ultimately, the district court concluded that appellant required maintenance to meet her needs, and then balanced this need against respondent’s ability to pay.  The court concluded that an award of $250 per month, representing 15 percent of respondent’s net monthly income from his retirement plan, was equitable.  The court noted that this award would leave respondent with $1,475 in retirement income and cash assets of about $70,000, while appellant would have $570 net income, from maintenance and her half of respondent’s pension benefit (per QDRO), and assets worth approximately $95,000, depending on the value of her jewelry.  The court also specifically noted that both parties’ expenses exceed their income and that its maintenance award required the parties to “shar[e] the financial burden on a fair basis.”  Because the record supports the district court’s findings, and because the findings support the district court’s maintenance award, we affirm on this issue.   


            Appellant also challenges the district court’s finding that she “provided no proper medical evidence as to her claimed physical disability, nor as to the diagnosis and/or prognosis for any claimed emotional disability.”  Appellant argues that because she testified about these disabilities at trial, and because that testimony was uncontroverted, the district court’s finding is erroneous.  But appellant ignores that while she may have testified extensively about her conditions, she did not provide the district court with any medical documentation or testimony from medical experts corroborating her testimony at trial.  See Varner v. Varner, 400 N.W.2d 117, 120 (Minn. App. 1987) (stating district court need not accept uncontroverted testimony if reasonable grounds for doubting its credibility exist).  Furthermore, the district court specifically denied appellant’s “untimely offer of unsworn letters from medical providers, and various MRI/radiology reports.”  Therefore, we conclude that the record supports the district court’s finding that appellant did not provide proper medical documentation supporting her claimed physical and emotional disabilities.  


Lastly, appellant challenges the district court’s award of attorney fees to respondent.  Minn. Stat. § 518.14, subd. 1 (2002), allows for both conduct-based and need-based attorney fees.  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.  Id.; Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001).  An award of conduct-based fees under the statute “may be made regardless of the recipient’s need for fees and regardless of the payor’s ability to contribute to a fee award.”  Id. at 818.

Here, the district court made extensive findings supporting its award of conduct-based attorney fees, including that (1) the amount of fees requested were reasonable; (2) appellant had failed to comply with four prior orders requiring the exchange of information; and (3) appellant had failed to reveal her $46,000 Wells Fargo asset until the date of trial, which was unfair to respondent and likely interfered with settlement efforts.  Because the record supports these findings, and the findings support the district court’s conclusion that conduct-based attorney fees were appropriate, we affirm on this issue. 

            Affirmed in part, reversed in part.