This opinion will be unpublished and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: 

Amy Jo Pence, petitioner,





DuWayne Gerald Pence,




Filed March 7, 2006


Halbrooks, Judge



Hennepin County District Court

File No. DC280380



Timothy D. Lees, Hennek Klaenhammer & Lees, P.A., 2585 Hamline Avenue North, Suite A, Roseville, MN 55113 (for respondent)


DuWayne Gerald Pence, 17290 90th Avenue North, Maple Grove, MN 55511 (pro se appellant)




            Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal in this dissolution, pro se appellant argues that (1) the district court erred in calculating appellant’s maintenance and support obligations; (2) the district court erred in sequestering appellant’s interest in the home to secure his support obligation; (3) the district court erred in valuing and dividing the parties’ property; (4) respondent’s interception and use of conversations between appellant and the parties’ child was improper under Minn. Stat. § 626A.02 (2004); (5) certain findings are “scandalous” and unsupported; (6) he was not given adequate notice of the implications of a prior OFP; (7) he lacks the ability to pay respondent’s attorney fees; and (8) the district court and respondent’s attorney colluded against appellant.  We affirm.    


            Appellant DuWayne Pence and respondent Amy Jo Pence married in 1992.  They separated in September 2002, and respondent filed a petition for dissolution in December 2002.  They have one child.

            When the dissolution action was commenced, appellant was employed as a pipe fitter through Pipe Fitters Local Union 539.  In the dissolution judgment, the district court found that appellant quit his employment and claimed to be disabled.  The court also found that appellant presented no medical evidence in support of his claimed disability other than his own testimony, which the court determined was not credible. 

            The district court further found that appellant was voluntarily unemployed “in bad faith and for the purpose of attempting to evade his obligations to his child and to [respondent].”  The court therefore imputed income to appellant that was similar to what he had previously earned.  Using appellant’s prior income to calculate his earning capacity, the district court imputed a net monthly income of $5,221.97 and ordered monthly child-support payments of $1,306 and temporary spousal-maintenance payments of $500. 

            The court awarded respondent the homestead, subject to a $26,055.10 lien in favor of appellant.  Because appellant was already behind in his support obligation, the court sequestered his lien interest to ensure payment of child support and spousal maintenance, providing that “unpaid support shall be deducted [from] the lien interest as it becomes due.”  Respondent was awarded a pick-up truck and motor home, while appellant was awarded the parties’ five other vehicles.  Respondent was also awarded a one-half interest in the marital portion of appellant’s Twin City Pipes Trade pension and supplemental pension.  Finally, the district court ordered appellant to pay respondent $17,963 in attorney fees. 



            Appellant argues that (1) he is disabled, (2) the district court erred in finding him voluntarily unemployed, (3) the district court failed to use the statutory guidelines in calculating his child-support payment, and (4) the district court erred in its spousal-maintenance award.  District courts have broad discretion to determine spousal maintenance and child support.  E.g., Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997) (noting that appellate courts review a district court’s maintenance award under an abuse-of-discretion standard); Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (noting that the district court has broad discretion to provide for the support of the parties’ children).  Because there was no motion for a new trial, our scope of review includes substantive legal issues properly raised at trial, whether the evidence sustains the findings of fact, and whether such findings sustain the conclusions of law and judgment.  Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 310 (Minn. 2003) (substantive legal issues properly raised at trial); Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976) (whether the evidence supports the findings and the findings support the conclusions of law and judgment).

            The evidence in the record supports the district court’s findings that appellant was voluntarily unemployed in bad faith and that he failed to prove that he was disabled.  The court found that appellant “submitted medical evidence to substantiate his alleged disability.”  While appellant submitted physician’s notes concerning his medical issues in a March 2003 affidavit, those records were not submitted as evidence at trial, nor did appellant present testimony from the treating physician.  In fact, the only evidence appellant presented at trial concerning his alleged disability was (1) his own testimony, which the court determined was not credible; and (2) the court’s April 2003 order finding that appellant was unemployed because his doctor recommended that he not work until finishing treatment for exposure to Lyme disease.  

            In contrast, a witness testified that appellant told him that appellant quit his employment to avoid paying child support, was working as a sheetrocker, and went on a canoeing trip to the Boundary Waters during the summer of 2003.  The witness also testified that appellant had taken a $25,000 line of credit against the homestead, saying he would need the money to support himself.  Finally, the witness testified that appellant said he would burn the house down if it were awarded to respondent.

            The district court imputed appellant’s income at a level consistent with his demonstrated earning capacity as evidenced by his tax returns from 1998-2002.  And while appellant argues that this court must remand because the district court failed to show the deductions it took in arriving at the imputed net monthly income, the district court’s finding unequivocally referred to the deductions it adopted from exhibit 13:  “[Appellant] is able to earn $44.10 per hour for a net monthly income of $5,221.97 per month per Exhibit 13.” 

            The district court made explicit and detailed findings regarding spousal maintenance according to the factors set forth in Minn. Stat. § 518.552, subd. 2 (2004), and the evidence supporting those findings is undisputed on appeal except for appellant’s arguments regarding his unemployment. 

            Finally, appellant’s contention that the court failed to use the statutory guidelines in calculating his child-support payment lacks merit.  The evidence of appellant’s prior earnings supports the district court’s imputation of a $5,221.97 net monthly income.  The child-support obligation of $1,306 per month represents the statutory guideline support of 25% of net monthly income set forth in Minn. Stat. § 518.551 (2004) (i.e., $5,222 x .25 = $1,306).

            The evidence and testimony presented at trial support the district court’s findings concerning appellant’s credibility, his ability to work, and his imputed income.  Those findings in turn support and sustain the district court’s conclusions of law concerning child support and spousal maintenance.       


            Appellant argues that the district court’s decision to sequester his interest in the homestead to secure his support obligation amounts to an inequitable property disbursement.  In the alternative, appellant argues that even if the district court acted properly, this court should reverse the decision based on appellant’s desire to pay back his parents and look for a home of his own. 

            Because appellant fails to cite factual or legal authority in support of his argument that sequestration is inappropriate here, we decline to address the issue.  See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (noting that this court need not address issues unsupported by legal analysis or citation).


            Appellant argues that the district court erroneously divided the parties’ property by (a) improperly dividing the interests in the parties’ home, (b) improperly apportioning an alleged $25,000 marital debt to appellant, (c) misvaluing property and awarding respondent an inequitably large share of that property, and (d) improperly valuing and apportioning appellant’s pension.  “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.”  Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn. App. 2005) (citing Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000), and Ebnet v. Ebnet, 347 N.W.2d 840, 842 (Minn. App. 1984)).  A division of marital property must be “just and equitable.”  Minn. Stat. § 518.58, subd. 1 (2004).  

A.        Nonmarital investment in the homestead.

            First, appellant argues that he is entitled to his traceable nonmarital investment in the homestead.  Under Minnesota law, it is presumed that property acquired by a married couple during their marriage is marital property.  Minn. Stat. § 518.54, subd. 5 (2004).  “The burden of establishing the nonmarital character of an asset acquired during the marriage is on the party claiming the asset as nonmarital.”  Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn. App. 1989) (citing Minn. Stat. § 518.54, subd. 5 (1988)).  When marital and nonmarital property are commingled, the nonmarital portion of the property loses its character as such unless it can be readily traced by a preponderance of the evidence.  See Kottke v. Kottke, 353 N.W.2d 633, 636 (Minn. App. 1984), review denied (Minn. Dec. 20, 1984).

            Here, appellant and respondent purchased the homestead together when they were married.  Appellant testified that the down payment on the home came from the proceeds of the sale of the parties’ previous home, which appellant purchased in 1988 and the parties lived in for four years after getting married.  While appellant argues that he is entitled to his nonmarital portion of the homestead, he failed to present sufficient documentation proving that interest, thereby making it impossible for the district court to determine the marital/nonmarital division.  Appellant testified that he did not know the exact amount of money from the first house that was used for the down payment on the homestead, but that it was close to $80,000.  But appellant failed to introduce any documentation supporting that claim.  Appellant simply did not meet his burden of proving a traceable nonmarital interest in the homestead by a preponderance of the evidence.  Therefore, we conclude that the evidence supports the district court’s findings of fact and that the findings of fact support the conclusions of law concerning the division of the homestead.

B.        Allocation of the $25,000 taken from a line of credit on the homestead.

            Appellant argues that the district court erred in finding that he took $25,000 in marital assets for himself, claiming that the $25,000 was taken to repay a marital debt.  In October 2002, prior to the commencement of the dissolution action, appellant withdrew approximately $25,000 in marital assets and purportedly tendered the money to Daniel Lohse as payment for what appellant classifies as marital loans.  Appellant made this claim in a March 2003 affidavit, to which he attached a letter from Daniel Lohse addressed to appellant and respondent stating that the loans Lohse made from 1997 through 2002 were paid in full as of December 1, 2002. 

            In calculating the property division, the district court credited appellant with the money, finding that “[t]here was no evidence of any loans other than [appellant’s] self-serving testimony.”  At trial, appellant testified that Lohse is a friend who had lived with appellant from 1993 through 1996.  Appellant testified about receiving three separate loans from Lohse; he claimed that there were no promissory notes, no terms of repayment, no interest, no demands for repayment from 1993 to 2002, and no written documentation of any of the loans.  Appellant testified inconsistently about whether Lohse ever made a demand for repayment of the loans, first claiming that Lohse had not and then stating that Lohse had demanded repayment when he found out that respondent had “walked out on [appellant].”  Further, the district court heard testimony from Jason Truax that appellant told Truax he had taken the $25,000 to support himself; Truax testified that “[h]e said he was going to need it to live off of.” 

            Accordingly, the district court found that appellant’s claim that he used the $25,000 to repay Lohse was neither proven nor credible.  The district court also found that appellant took the money and dissipated it “in anticipation of [the] divorce and after he was served with the Order for Protection setting forth his child support obligation.” 

            Given the paucity of credible evidence proving the existence of the loan, the evidence that appellant intended to use the money to support himself, and the district court’s credibility determination, we conclude that the evidence supports the district court’s findings and that the findings support the conclusions of law concerning the $25,000 that was credited to appellant.

C.        Valuation and respondent’s share of property.

            Appellant argues that the district court misvalued the parties’ property and awarded respondent an inequitably large share.  A district court’s valuation of an item of property is a finding of fact and it will not be set aside unless it is clearly erroneous on the record as a whole.  Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn. 2001).  An appellate court does not require the district court to be exact in its valuation of assets; “it is only necessary that the value arrived at lies within a reasonable range of figures.”  Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979).

            Appellant’s general criticism concerning the district court’s valuation of the parties’ property lacks citation to either factual or legal authority.  We therefore decline to address the issue, as a mere assertion of error unsupported by argument or authority is generally waived.  State v. Modern Recycling, 558 N.W.2d 770, 772 (Minn. App. 1997).

            Appellant’s argument that respondent received an inequitably large share of the property appears to stem mainly from the fact that the judgment and decree does not specifically list and award each item of marital property acquired throughout the parties’ ten-year marriage.  While the judgment and decree only specifically awards seven items (the parties’ vehicles), the order includes a provision awarding the parties all property in their respective possession that is not otherwise dealt with in the judgment and decree. 

            Appellant argues that he should have been awarded possession of certain firearms that he claims were given to him prior to his marriage.  During trial, respondent testified that the firearms were in a closet at the homestead before she left in September 2002 and that they were not at the homestead when she returned in October 2003.  She also testified that she was not in possession of the firearms, that she did not direct anyone else to take possession of them, and that she did not know where the firearms were.  Given respondent’s testimony that she was not in possession of the firearms, the district court’s order awarding the parties the property in their respective possession does not rise to the level of a clear abuse of discretion. 

D.        Valuation of appellant’s pension.

            Appellant argues that the district court improperly valued and apportioned appellant’s pension between the parties.  Pension division is generally discretionary with the district court.  Faus v. Faus, 319 N.W.2d 408, 413 (Minn. 1982); Johnson v. Johnson, 627 N.W.2d 359, 362 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001).

            First, appellant contends that the district court erred by failing to utilize Minn. Stat. § 518.582 (2004) to appoint an actuary to value his pension benefits.  But while that statute provides that a court may appoint an actuary to assist in the valuation of pension benefits, it does not require the court to do so.  Minn. Stat. § 518.582, subd. 1; see Minn. Stat. § 645.44, subd. 15 (2004) (defining “[m]ay” as permissive).  There is no evidence that the district court’s failure to appoint an actuary here was an abuse of discretion.    

            Second, appellant generally asserts that the district court’s pension division was unfair and inequitable.  We decline to address the issue because appellant fails to present any authority in support of this assertion.  See Modern Recycling, 558 N.W.2d at 772. 


            Appellant argues that the tape-recorded conversations used by respondent to impeach his testimony at trial were illegally obtained and used and, therefore, inadmissible.  On appeal, this court generally considers only those issues presented to and considered by the district court.  Thiele v. Stitch, 425 N.W.2d 580, 582 (Minn. 1988).  And evidentiary matters are generally not subject to review when there has been no motion for a new trial.  Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986). 

            Because there is no indication on the record before us that the district court considered the issue of whether the tape was illegally obtained or presented, we conclude that appellant has waived this issue on appeal.  See Thiele, 425 N.W.2d at 582. 


            Appellant takes issue with the judgment and decree’s inclusion of “numerous scandalous and hateful statements towards [appellant] and his relationship with his daughter which [have] never been proven as true.”  He asserts that his affidavits make “it [] absolutely clear that [he] would never cause any undue harm or duress towards his daughter.” 

            Appellant fails to cite any meaningful factual or legal authority in support of his contentions.  We decline to address the issue because it is inadequately briefed and a mere assertion of error unsupported by argument or authority is generally waived.  Modern Recycling, 558 N.W.2d at 772.


            Appellant’s argument that he “was never informed or aware of any potential ramifications by simply agreeing to an order for protection” does not present an issue for this court to consider.


            Appellant contends that the district court erred in ordering him to pay one-half of respondent’s attorney fees and that “it is absolutely ridiculous to even think that [he] ‘has the means to pay’” them. 

            An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2004), “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999); see Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001) (addressing 1990 amendments to Minn. Stat. § 518.14 as well as recovery of attorney fees under Minn. Stat. § 518.14, subd. 1, in both district court and appellate court).  Here, the district court awarded respondent need-based attorney fees after finding that appellant has the ability to pay for them.  The award is supported by the findings, and there is no indication that the award of attorney fees constituted an abuse of the district court’s discretion.


            Appellant contends that respondent’s attorney and the district court colluded against him because he alleges that the district court adopted word-for-word respondent’s proposed findings of fact, conclusions of law, order for judgment, and judgment and decree.  Alternatively, he argues that the district court and respondent’s attorney committed a fraud when respondent’s attorney submitted and the district court allowed the use of the taped conversations. 

            Appellant failed to raise the issue of the illegality of the tape and, therefore, waived that issue on appeal.  And appellant fails to present any evidence of fraud or collusion.  Finally, appellant’s argument that the district court adopted verbatim respondent’s proposed order lacks merit, as a simple comparison between the proposed and final orders shows that while the district court adopted some of respondent’s proposed findings, the two orders are not the same, and there are numerous and significant changes to respondent’s proposed order.