This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In re the Marriage of:


Rebecca Jeanne Nosbisch, petitioner,





Jeffrey Claude Nosbisch,



Filed September 27, 2005


Kalitowski, Judge


St. Louis County District Court

File No. F7-02-601018


Shelly M. Marquardt, 1000 Torrey Building, 314 West Superior Street, Duluth, MN 55802 (for respondent)


Patrick J. Roche, Paul D. Cerkvenik, The Trenti Law Firm, 1000 Lincoln Building, 225 North First Street, P.O. Box 958, Virginia, MN 55792 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court’s property division, arguing that the district court erred (1) in treating the appreciation value of the parties’ real property, outbuildings, and improvements as marital property; and (2) in disallowing a $10,000 award to appellant based on a contribution of nonmarital materials to the parties’ marital residence.  We affirm.


The district court has broad discretion in the division of property upon dissolution of a marriage.  Bollenbach v. Bollenbach, 285 Minn. 418, 426, 175 N.W.2d 148, 154 (1970).  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 v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).  Even if this court would have done things differently, we will affirm the district court’s division of property if it has an acceptable basis in fact and principle.  Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984). 

The district court must make a “just and equitable” division of the marital property of the parties.  Minn. Stat. § 518.58, subd. 1 (2004).  And all property acquired during marriage is presumed to be marital property.  Minn. Stat. § 518.54, subd. 5 (2004).  But one way to overcome this presumption is to show that the property meets one of the classifications of nonmarital property provided in section 518.54, subdivision 5.  Gottsacker v. Gottsacker, 664 N.W.2d 848, 853 (Minn. 2003).  The statute enumerates several exceptions to the presumption, including “the increase in value” of nonmarital property.  Minn. Stat. § 518.54, subd. 5(c).

            With regard to this exception, the supreme court has stated that

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.


Nardini v. Nardini, 414 N.W.2d 184, 192 (Minn. 1987).

“A party seeking to establish the nonmarital character of an asset must do so by a preponderance of the evidence.  In order to maintain its nonmarital character, nonmarital property must be kept separate from marital property or, if commingled, must be readily traceable.”  Wopata v. Wopata, 498 N.W.2d 478, 484 (Minn. App. 1993) (citation omitted); see also Carrick v. Carrick, 560 N.W.2d 407, 413 (Minn. App. 1997) (noting that standard required is not “strict tracing” but a preponderance of the evidence).


The district court credited appellant with a nonmarital interest in the real property of $35,000 based on the 1993 value of the land, outbuildings, well, and driveway.  Neither party disputes that the residence, which is located on the property, is a marital asset because the parties constructed the residence during the marriage with marital funds.  But appellant argues that the district court erred in not crediting him with the value of the appreciation of the land, outbuildings, and improvements to the land because he owned those assets before the marriage.  We disagree.

 Appellant bore the burden of proving the continuing nonmarital character of the real property, well, and outbuilding.  See Van de Loo v. Van de Loo, 346 N.W.2d 173, 177 (Minn. App. 1984) (stating that “[t]he burden of proving the purpose of part or all of the recovery . . . is on the party seeking a nonmarital classification.”).  And based on the evidence, “[w]hether 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 [unless they are clearly erroneous].”  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997) (citations omitted).

Thus, appellant had the burden to show that during the marriage, the property he claimed as nonmarital was kept separate from marital property or was easily traceable.  Wopata, 498 N.W.2d at 484.  But the record indicates that (1) appreciation of these assets occurred during the marriage; (2) therefore, the appreciation is presumptively marital; (3) the parties used marital funds to pay real estate taxes and to improve the real property by adding a septic system, a new shed, a new guest cabin, and performing road maintenance; (4) in light of the marital contribution to these assets, the evidence appellant presented to the district court was insufficient to allow the district court to apportion the appreciation between its marital and nonmarital components; and therefore (5) appellant cannot complain about the district court’s failure to award him a nonmarital interest in the appreciation.  See Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003) (stating “[o]n appeal, a party cannot complain about a district court’s failure to rule in her favor when one of the reasons it did not do so is because that party failed to provide the district court” with the necessary evidence), review denied (Minn. Nov. 25, 2003).


            We review the district court’s findings of fact underlying this determination for clear error.  Olsen, 562 N.W.2d at 800.  Appellant argues that the district court clearly erred by finding that he contributed $10,000 in nonmarital materials to the parties’ residence, but then failing to award appellant $10,000 for the nonmarital contributions.

In Finding 11, the district court found “[t]hat [appellant] can trace personal property and building materials into the new home having a realistic value of $10,000, but that this $10,000 is also represented by the premarital value of the property as noted below.”  Consistent with this finding, in Finding 13, the court found that in 1993 appellant had a nonmarital interest in the property that included $20,000 for land; $10,000 for buildings; and $5,000 for the well and driveway, for a total of $35,000.

            We conclude that the district court’s findings are not clearly erroneous.  Evidence in the record supports the district court’s finding that the nonmarital building materials that appellant contributed to the new home were part of the nonmarital outbuildings for which appellant had already received a $10,000 credit. 


            Respondent seeks an award of attorney fees but does not provide a substantive basis for the request.  We will treat respondent’s request as a request for conduct-based fees under section 518.14, subdivision 1.  See Minn. Stat. § 518.14, subd. 1 (permitting a court to award fees against a party “who unreasonably contributes to the length or expense of the proceeding”).  Here, appellant’s arguments were not frivolous or made in bad faith.  Nor do the relative resources of the parties indicate that an award is warranted.  We deny respondent’s request because it is unsupported by the record.