This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re the Marriage of:
Patrick Vollhaber, petitioner,
Jacqueline Pastoret (Vollhaber),
Filed September 20, 2005
Ramsey County District Court
File No. DM-F9-01-1335
B. William Ekstrum, Newquist
& Ekstrum, Chartered,
Dianne Wright, Wright Family Law & Mediation P.L.L.P., White Pine Building, 342 Fifth Avenue North, Bayport, MN 55003 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Worke, Judge; and Parker, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the district court’s division and valuation of the parties’ real and personal property and allocation of debt, wife claims that the district court erred by denying her claim for relief. We affirm.
D E C I S I O N
I. Division and valuation of property
the specific value of an asset is a finding of fact. Hertz
v. Hertz, 304
district court has broad discretion in the division of property. Bollenbach v. Bollenbach, 285
court has consistently held that the district court is in the best position to
determine witness credibility. Fontaine v. Hoffman, 359 N.W.2d 692, 694
record must be reviewed in the light most favorable to the district court’s
findings. Lossing v. Lossing, 403 N.W.2d 688, 690 (
A. Ten-acre Aitkin parcel
first argues that the district court erred by classifying as nonmarital certain
real property and in distributing it as such.
Whether property is marital or nonmarital is a question of law subject
to de novo review. Olsen v. Olsen,
562 N.W.2d 797, 800 (
property acquired during marriage is presumed to be marital property. Minn. Stat. § 518.54, subd. 5 (2004). Nonmarital property is property acquired
before the marriage, property that is acquired in exchange for property
acquired before the marriage, or the increase in the value of property that was
acquired before the marriage.
the increase in the value of nonmarital property attributable to the efforts of one or both spouses during their marriage, like the increase resulting from the application of marital funds, is marital property. Conversely, an increase in the value of nonmarital property attributable to inflation or to market forces or conditions, retains its nonmarital character.
v. Nardini, 414 N.W.2d 184, 192 (
concedes that the net equity in the ten-acre parcel at the time of the parties’
marriage is husband’s nonmarital property.
However, wife contends that the property was paid for partially with
marital assets, and thus the district court erred in finding the property
entirely nonmarital. Further, wife
argues that the district court erred in not applying the Schmitz formula. See Schmitz v. Schmitz, 309 N.W.2d 748 (
Here, the record shows that the ten-acre parcel was encumbered at the time of the marriage. Husband supplied evidence that showed that the property was purchased for $5,000 in 1988 and that there was a small balance of $578.02 due on the property at the time of the parties’ marriage. Wife provided a receipt for the warranty deed and a single check from the bank, which were dated into the next year. The district court determined husband’s evidence to be credible and found the property to be nonmarital. The district court also found husband’s property appraisal to be credible and adopted the $10,000 valuation at the time of the parties’ 2003 dissolution. Ultimately, the court awarded husband the property, without a calculation of marital interest.
upon the 2003 valuation of the property, it appears that the valuation at the
time of the parties’ 1993 marriage had not increased greatly from the 1988
purchase price of $5,000. Further, based
on the district court’s credibility determination, the amount that husband owed
at the time of the parties’ marriage was minimal. Though there was no evidence of market value
at the time of the parties’ marriage, this court declines to remand for de
minimis technical errors. Wibbens v. Wibbens, 379 N.W.2d 225, 227
B. Other Aitkin parcels
argues that the district court erred when it accepted husband’s appraised value
of the marital property located in
Highest and best use is defined as “the reasonably probable
and legal use of vacant land or an improved property that is physically
possible, legally permissible, appropriately supported, financially feasible,
and that results in the highest value.” The Appraisal of Real Estate, 305 (12th
ed. 2001). The physical possibility,
legal permissibility, and financial feasibility must first be determined before
maximum value is considered.
Here, the district court reviewed appraisals from both husband’s appraiser and wife’s appraiser. The court also heard oral testimony from husband’s appraiser, who valued parcel #2 (40-acre parcel) at $19,000 and parcel #3 (20-acre parcel) at $14,000. Wife’s appraiser did not testify. Based on the testimony and appraisal, the court adopted the valuation provided by husband’s expert witness. Wife does not argue that the expert was not qualified to state a valuation. Therefore, the credentials of the expert are not at issue.
Though wife argues that because the district court based
part of its decision to award husband the
C. Personal property
Wife challenges the district court’s distribution and valuations of a list of personal items, including three computer software programs, which were valued at $5,000 each. Wife argues that there is insufficient evidence to support the valuation of the computer software and that the district court’s amended findings are incompatible with its final conclusion. A review of the amended order reflects that the district court’s findings support the conclusion.
In the amended order’s findings, the district court specifically addressed the computer software, stating,
[a]lthough she testified and otherwise stated several times that she could not locate after diligent search and did not have the five computer programs sought by [husband], [wife] was able, after entry of the Decree, to locate two of the programs and to locate other computer programs. [Wife] has made a good faith effort to locate the computer programs sought by [husband]. [Wife] is in substantial compliance with the provision of the Judgment and Decree that she deliver the five computer programs to [husband]. It is no longer just that the financial penalty imposed on [wife] in the Decree for failure to deliver the programs have prospective application. Although she testified and otherwise stated that she could not locate and did not have other items of personal property which were either [husband’s] non-marital property or belonged to [his] daughter, [wife] was able, after entry of the Decree, to locate some of the personal property items and deliver them to [husband]. Findings of Fact 18 and 25 and Conclusions of Law 8 and 9 should be amended.
in the Conclusions section, the court assigned the
4. Finding of Fact 18 is amended to add the following sentence: “The award to [husband] of the Aitkin County Parcel 2 and Aitkin County Parcel 3 reflects off-set of the missing personal property of [husband] . . . (approximately $14,000) as well as the three (of orginal five) computer programs which remain missing (valued by [husband] at $15,000).
5. Finding of Fact 25 is amended. The final sentence of the finding[] is changed and an additional sentence is added, as follows: From [husband’s] estimates alone, the values of which were not disputed, [wife] used or disposed of or withheld or hid or failed to make a diligent search for $25,000 worth of business programs, and an additional $14,410 worth of personal property. Through post-trial diligent search, [wife] successfully located two of the five business programs and successfully located a number of items of personal property, although many items remain missing.
Though the court mentions the computer software in its conclusion, there is no indication that the court awarded husband the $15,000 value for the software. Instead, the court accepted husband’s appraisal of the Aitkin county parcels—valued at $33,000. A division of this real property would entitle each party to one-half of the value, which is $16,500. The court concluded that $16,500, the wife’s share, would be offset against husband’s personal property, which was valued at approximately $14,410.
$14,410 valuation of the other personal property is also supported by the
record. Husband introduced a list and
valuations of a number of personal property items. Wife did not object to the estimated valuations. The district court found husband’s valuations
to be credible. See Fontaine, 359 N.W.2d at 694 (holding that district court is in
best position to determine witness credibility). Ultimately, the district court accepted
husband’s valuations, which were “within a reasonable range of figures.” See
Johnson v. Johnson, 277 N.W.2d 208, 211 (
II. Division of debt
wife argues that the district court abused discretion in requiring her to pay
the parties’ marital debt. The district
court has broad discretion in apportioning the parties’ debt. Dahlberg
v. Dahlberg, 358 N.W.2d 76, 80 (
Wife argues that the district court abused discretion in not crediting her for payments that she made against the mortgage on the homestead while the parties were separated and for making her responsible for the parties’ entire credit card debt.
The district court specifically addressed wife’s payments toward the mortgage, stating that, “[s]ince the parties’ separation, [r]espondent has made payments which have reduced the amount of the mortgage by an unknown amount. [Wife] should be given credit for these payments in the property distribution.” Thus, it is clear that the district court addressed wife’s claim and actually gave her credit toward the payments that she made toward the mortgage.
Regarding the credit card debt, the district court determined that
[t]he parties have a credit card obligation to Commerce Bank MasterCard, with a current balance of $3,718.51. The [r]espondent has been paying on this obligation during the pendency of the marriage dissolution. The parties also have an approximated balance of $2,000 on a Sears credit card, most of which paid for property in [r]espondent’s possession.
[T]he [r]espondent presented testimony as to the payment of various obligations during the pendency of this marriage dissolution, and particularly since the separation of the parties. During this period of time, [p]etioner has not been able to earn substantial income, and it would not be appropriate for the [c]ourt to make any retroactive order regarding reimbursement for debts paid.
As a result, the district court determined that husband should not be responsible for the debt paid by wife during the parties’ separation and wife should be responsible for the entire debt after the dissolution. According to the record, husband was out of work as a result of a medical condition. The court also noted that at the time of the dissolution, wife provided health and medical insurance coverage for husband through her employer and that “[w]ithout agreement from the [husband] or authorization of the [c]ourt, [wife] canceled [husband’s] health and medical coverage.” And, as a result, “[husband] has not had the funds to seek needed medical care since that time.” The district court relied on these facts when making the decision regarding the parties’ joint marital debt. We conclude that the district court did not abuse discretion in the distribution of marital debt.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
As summarized, the Schmitz formula states that
[t]he present value of a [nonmarital interest in property acquired before the marriage] is the proportion the net equity . . . at the time of [the marriage] bore to the value of the property at the time of [the marriage] multiplied by the value of the property at the time of separation. The remainder of equity increase is characterized as marital property.
645 N.W.2d 96, 102 (
 The 2003 finding of fact 25 final sentence read: “From the [husband’s] estimates alone, the values of which were not disputed, [wife] has either used, disposed of, withheld, or hidden $25,000 worth of business programs, and an additional $14,410 worth of personal property.”