This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1

 

Donna Lee Maki, petitioner,

Respondent,

 

vs.

 

James Irving Maki,

Appellant.

 

Filed January 10, 2006

Affirmed

Willis, Judge

 

Carlton County District Court

File No. FX-02-508

 

Jill I. Frieders, Tammy L. Shefelbine, OíBrien & Wolf, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN† 55903-0968 (for respondent)

 

Walter W. Vasil, Board of Trade Building, Suite 200, 301 West First Street, Duluth, MN55802 (for appellant)

 

††††††††††† Considered and decided by Willis, Presiding Judge; Minge, Judge; and Worke, Judge.

U N P U B L I S H E D†† O P I N I O N

WILLIS, Judge

In this marital-dissolution proceeding, appellant argues that the district courtís findings regarding his income, respondentís income, and the value of certain items of marital personal property are clearly erroneous.† Appellant also argues that the district court abused its discretion by inequitably dividing the partiesí land and personal property and by ordering permanent spousal maintenance.† Because we find no error or abuse of discretion, we affirm.

FACTS

On April 18, 2002, respondent Donna Lee Maki petitioned for dissolution of her marriage to appellant James Irving Maki.† The parties had been married for 38 years and owned almost 720 acres of farmland, approximately 450 acres of which they used to produce hay.† Both parties worked on the farm throughout the duration of their marriage, but in the early 1990s, respondent stopped doing physical labor on the farm because her health had deteriorated.† The partiesí primary assets were the farmland, the farm equipment, and various life-insurance policies.†††

††††††††††† In its dissolution decree, the district court found that appellantís monthly expenses were $3,167 and that respondentís were between $3,423 and $3,623.† The district court found that appellantís taxable income for 2003 was $74,573 and that respondentís net monthly income was $490.† The district court ordered appellant to pay respondent $2,200 in monthly temporary maintenance. †The district court also awarded respondent 160 acres of the partiesí farmland and a cash equalizer payment of $320,419.50.†

††††††††††† On motions by both parties, the district court amended several of its findings of fact and conclusions of law.† It found that respondentís monthly expenses were $2,909.† The district court decreased its finding of the per-acre value of the partiesí real estate, which in turn decreased the amount of the cash equalizer payment and, therefore, respondentís ability to generate income by investing the equalizer payment.† The district court also amended its order for spousal maintenance, changing the maintenance from temporary to permanent and the maintenance amount to $1,460 monthly.† This appeal follows.

D E C I S I O N

Appellant challenges several of the district courtís findings of fact.† This court will uphold a district courtís findings unless they are clearly erroneous. †Minn. R. Civ. P. 52.01; Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).† Appellant also challenges the district courtís decisions regarding spousal maintenance and the division of the partiesí land and certain items of personal property.† This court reviews a district courtís spousal-maintenance and property-division decisions under an abuse-of-discretion standard.† Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997) (spousal maintenance); Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000) (property division), review denied (Minn. Oct. 25, 2000).† A district court abuses its discretion if its findings of fact are unsupported by the record or if it improperly applies the law.† Dobrin, 569 N.W.2d at 202 & n.3 (quoting Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)).

I.

The district court found that appellantís annual taxable income is $74,573.† Appellant argues that this finding is clearly erroneous because the district court relied on the testimony of and a report prepared by respondentís expert witness, William Seitz.† Appellant argues that the district court clearly erred because its finding regarding his income is significantly higher than appellantís three- and five-year average income.

Seitz testified that he reviewed appellantís income-tax returns for the years 1997 to 2002 and appellantís accounting records for the first ten months of 2003.† Seitz prepared a report analyzing the cash flow of appellantís hay-production business, concluding that after various adjustments for business expenses and equipment depreciation, appellant would have $74,573 of taxable income in 2003.† While this figure is higher than appellantís three- and five-year average income, Seitz testified that appellantís business was becoming more profitable.† Appellant offered no evidence contradicting Seitzís testimony or his report.† The district court incorporated portions of Seitzís report into its findings and found that appellantís 2003 taxable income would be $74,573.†

The only evidence of appellantís income is his tax returns and business records, both of which Seitz used to prepare his report.† The district courtís finding is based on uncontroverted record evidence.† This court defers to the district courtís decisions concerning the weight and credibility of evidence presented at trial.† Sefkow, 427 N.W.2d at 210.† We therefore conclude that the district courtís determination of appellantís income is not clearly erroneous.

 

II.

 

††††††††††† Appellant also challenges the district courtís finding regarding respondentís income.† But appellant points to no error in the district courtís finding.† He instead argues that it would be ďmore fairĒ to impute $16,640 of annual income to respondent.† Whether the district courtís determination of respondentís income is equitable is not for this court to decide; we review the district courtís findings of fact for clear error.† See Gessner, 487 N.W.2d at 923.

††††††††††† An evaluator prepared a vocation-assessment report to determine respondentís earning capacity.† The evaluator concluded that respondent could earn between $7 and $8 an hour, which, based on a standard work year, would amount to between $14,560 and $16,640 of income annually.† But the evaluator noted that because of her age and physical condition, respondent did not think that she could work full time, in which case he would reduce his calculations by one-half to reflect half-time employment.† The record shows that respondent was earning $490 monthly babysitting her grandchildren.

The district courtís finding regarding respondentís income reflects the evaluatorís conclusions.† It noted that respondent cannot work full time at a job that would yield $16,640 annually and found that respondentís then-current monthly net income was $490.† Because the district courtís finding is supported by record evidence, we find no error.

III.

 

††††††††††† Appellant also challenges the district courtís findings regarding the value of various items of farm equipment.† Respondent hired an appraiser, who determined that the total value of the partiesí personal property was approximately $149,000.† Appellantís valuation of the partiesí personal property was between $6,000 and $10,000 lower. †The district court rejected appellantís valuation and used the appraiserís valuation for purposes of the property division.

††††††††††† As stated above, this court defers to the district courtís decisions regarding the weight and credibility of evidence.† Sefkow, 427 N.W.2d at 210.† Because record evidence supports the district courtís findings regarding the value of the partiesí personal property, we conclude that the district court did not clearly err.

IV.

 

††††††††††† Appellant also challenges the district courtís division of the partiesí marital property.† He first argues that division of the partiesí real estate is inequitable.† Appellant asserts that because the district court awarded respondent 160 acres of the partiesí farmland, appellantís ability to produce hay, and therefore his ability to generate income, will be reduced.† He also argues that the property division denies him access to certain parts of the farm.

††††††††††† The district court awarded respondent one 80-acre parcel of land and two 40-acre parcels.† The record shows that most of the 160 acres awarded to respondent are either wooded or swampland and are unsuitable for hay production.† The remaining farmland, which was awarded to appellant, contains the vast majority of the partiesí hay-producing land.† There is no evidence showing that appellantís hay production will be diminished by the district courtís property division.† Nor is there any evidence that appellant will be denied access to the land awarded to him by the district court.† Appellantís arguments are without merit, and we conclude that the district court did not abuse its discretion in its award of 160 acres to respondent.

††††††††††† Appellant also challenges the district courtís award of personal property.† His challenge is based on his claim that the district courtís findings regarding the value of the personal property are clearly erroneous and his testimony that he did not want certain items of personal property.† But, as discussed above, the district courtís findings regarding the value of the partiesí personal property are not clearly erroneous.† And appellantís argument that the district court abused its discretion by awarding appellant rather than respondent certain items of personal property is unsupported by legal authority.† We therefore conclude that the personal-property division was not an abuse of discretion.

V.

 

††††††††††† Appellant also challenges the district courtís award of spousal maintenance.† He first argues that the $1,460 maintenance award is an abuse of discretion because the district court did not consider the effect of the property award and because appellant cannot make the maintenance payments.†

††††††††††† Among the factors to be considered by the district court when determining the amount of spousal maintenance is ďthe ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance.Ē† Minn. Stat. ß 518.552, subd. 2(g) (2004).† Appellant argues that because respondent was awarded 160 acres of the partiesí farmland, his ability to produce hay, and therefore to generate income, is diminished. †But, as discussed above, this argument is unsupported by record evidence.†

††††††††††† Because we conclude that the district courtís findings regarding the partiesí incomes are not clearly erroneous, and nothing in the record shows that appellant cannot make the ordered maintenance payments, we conclude that the district court did not abuse its discretion by ordering $1,460 per month in spousal maintenance.

††††††††††† Appellant also challenges the district courtís decision to award permanent spousal maintenance.† ďWhere there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for later modification.Ē† Minn. Stat. ß 518.552, subd. 3 (2004). †This statutory provision ďrequires that a [district] court order permanent maintenance if the court is uncertain that the spouse seeking maintenance can ever become self-supporting.Ē †Aaker v. Aaker, 447 N.W.2d 607, 611 (Minn. App. 1989), review denied (Minn. Jan. 12, 1990).†

††††††††††† The district court found that because of her age and physical condition, respondent will not be able to support herself financially.† The record supports this finding.† Permanent spousal maintenance is, therefore, appropriate, and the district court did not abuse its discretion by making such an award.

Affirmed.