This opinion will be unpublished and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:


Ronald Nelson, petitioner,





Parvaneh Nelson,




Filed March 7, 2006


Worke, Judge


Hennepin County District Court

File No. DC 284279


Elizabeth C. Henry, Henry Law Office, P.A., 600 Inwood Avenue North, Suite 250, Oakdale, MN  55128 (for respondent)


Michael L. Perlman, Karin Gjerset, Perlman Law Office, Woodside Office Park, 10520 Wayzata Boulevard, Minnetonka, MN  55305 (for appellant)


            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            Appellant-mother argues that the district court abused its discretion (1) in awarding split custody of the parties’ two children, (2) in its maintenance award by imputing income to appellant without finding that she was voluntarily unemployed in bad faith and finding that she could be self-sufficient in 12 months, (3) in its property division by considering appellant’s dissipation of assets by gambling prior to contemplation of dissolution, and (4) in awarding appellant insufficient need-based attorney fees.  We affirm. 



A district court has broad discretion in determining custody matters.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  Appellate review of a custody determination is limited to determining whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  In determining custody the district court must consider the best interests of each child.  Minn. Stat. § 518.17, subd. 3(a)(3) (2004).  The best-interests factors to be considered and evaluated by the district court are enumerated in Minn. Stat. § 518.17, subd. 1(a) (2004).

In order to successfully challenge a district court’s findings of fact, the party challenging the findings “must show that despite viewing the evidence in the light most favorable to the [district] court’s findings . . . the record still requires the definite and firm conviction that a mistake was made.”  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  An appellate court defers to the district court’s credibility determinations.  Id. at 472.  District court findings should assure that the relevant statutory factors have been addressed, satisfy the litigants that their case was fairly resolved, and permit reasoned appellate review.   Rosenfeld v. Rosenfeld, 311 Minn. 76, 82, 249 N.W.2d 168, 171 (1976).

Appellant Parvaneh Nelson argues that the district court abused its discretion by ordering split custody of the parties’ two children.  In determining custody, the district court engaged in a best-interests analysis and considered joint-custody factors.  The district court awarded the parties joint physical and legal custody of D.N, appellant’s 13-year-old son from a previous marriage whom respondent adopted, placing his primary care with appellant.  The district court awarded respondent Ronald Emil Nelson sole physical and legal custody of T.N., the parties’ 6-year-old son, with appellant receiving parenting time   and the right of first refusal to care for T.N. when respondent travels. 

As a general rule, split custody is not favored and the best interests of minor children are usually served by permitting them to remain together.  Sefkow v. Sefkow, 427 N.W.2d 203, 215 (Minn. 1988).  “However, the welfare of the child is paramount, and the decision to split custody is not conclusively erroneous.”  Id.  In appropriate circumstances, both this court and the supreme court have approved split custody.  See, e.g., Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn. 1990) (“Split custody is not favored.  Yet, . . . children come into this world one by one, and in deciding their future, this, too, must be decided one by one.”); Sefkow, 427 N.W.2d at 215 (“Other factors, such as bonding to a parent and stability of the home environment, outweigh the need for [siblings] to reside together.”); Doren v. Doren, 431 N.W.2d 558, 561 (Minn. App. 1998) (“[When] other factors outweigh the need for siblings to reside together, split custody may be appropriate.”).

            Here, the district court relied on a custody evaluation dated November 9, 2004, which found that appellant offered a less-stable environment—she gambled away the parties’ savings, she was preoccupied with gambling and if her habit continued, the children would be subjected to the emotional consequences of appellant’s illness. Appellant argues that the district court should have relied on an October 27, 2003 custody evaluation.  But the district court found the information in the first evaluation outdated.  In addressing split custody, the district court determined that despite being sensitive to a custody award that appeared to separate siblings, the children were well adjusted, and the award was appropriate because there was a liberal access schedule and the siblings did not presently have a bond developed that outweighed the need for custodial division.  Most importantly, the district court determined that appellant would be under sufficient stress with one child while she addresses her gambling addiction, assumes career responsibilities, and responds to probation—meaning that the added responsibility for the primary care of a second child would only serve to increase appellant’s stress level.  The determination to split custody in order to relieve appellant of additional stress is especially important in light of the fact that appellant suffered a relapse and her counseling sponsor testified that too much responsibility contributed to appellant’s relapse.  The district court also determined that it had more confidence in respondent’s abilities to assume primary responsibility for T.N.  The evidence supports the district court’s findings. 

Appellant also argues that if the district court determined that split custody was in the best interests of the children, then she should have sole physical custody of D.N. because he had expressed a preference to remain with appellant.  Best-interests factors include the reasonable preference of the child.  Minn. Stat. § 518.17, subd. 1(a)(2).  The child’s custodial preference, however, is only one of many best-interests factors.  Lundell v. Lundell, 387 N.W.2d 654, 658 (Minn. App. 1986).  “Although it is important to consider the wishes of a child of suitable age, it is seldom in a child’s best interest to place upon him or her the entire burden of such a difficult decision as custody.”  Id.  A child’s preference “should be given weight to the extent that it might bear on the child’s emotional well-being when the court is convinced that [the preference] is not the product of manipulation by [a] parent.”  Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989), review denied (Minn. June 21, 1989). 

Here, the district court considered D.N.’s preference, but found that D.N. and appellant are “emotionally unmeshed” and that it is difficult to separate D.N.’s feelings from appellant’s feelings.  The district court also found that appellant had coached D.N. in an attempt to align him against respondent and had unreasonably interfered with respondent’s access schedule.  Further, the district court found that appellant made comments to D.N. that caused D.N. to look unfavorably on respondent.  The district court’s findings are supported by the record and are not clearly erroneous.   

Appellant next argues that the district court improperly penalized her because of her gambling addiction.  The district court found that appellant’s gambling addiction was relevant to the following best-interests factors: interactions and interrelationships, stable environment, and health.  Despite appellant’s claim that her gambling no longer affects her relationships the district court was not convinced.  The district court determined that a gambling addiction is a serious illness.  Appellant’s sponsor at her counseling services stated that despite appellant’s love for her children, too much responsibility contributed to appellant’s admitted relapse.  Appellant suggests that the district court did not consider the testimony from her relatives, her doctor, and her sponsor that she was a responsible parent.  The record, however, supports the district court’s findings and conclusion that appellant’s gambling would interfere with her relationship with her children and jeopardize a stable environment.  See Minn. R. Civ. P. 52.01; Sefkow, 427 N.W.2d at 210 (stating that deference must be given to the district court’s witness credibility determinations).  The district court did not abuse its discretion in considering how appellant’s gambling addiction affects the best interests of her children. 

Spousal Maintenance

To reverse the district court’s determination on spousal maintenance, we would have to conclude that the district court abused its discretion by resolving the issue in a manner “that is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  To determine whether findings are clearly erroneous, we view the record in the light most favorable to the district court’s findings and defer to the district court’s credibility determinations.  Vangsness, 607 N.W.2d at 472.

A district court may order maintenance if a party “lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs” or if a party is unable to provide self-support through adequate employment.  Minn. Stat. § 518.552, subd. 1 (2004).  In making this determination, the district court must consider “all relevant factors” including available financial resources, the probability of self-support, the contributions of each party to marital property, marital property apportioned to the spouse requesting maintenance, the standard of living established during the marriage, the duration of the marriage, and the proposed obligor’s ability to meet his or her needs.  Minn. Stat. § 518.552, subd. 2 (2004).   

The district court awarded appellant temporary spousal maintenance.  Appellant argues that the district court abused its discretion when it imputed income to appellant without finding that she was voluntarily unemployed in bad faith.  Imputing income for spousal-maintenance determinations is derived from caselaw.  See Warwick v. Warwick, 438 N.W.2d 673, 677-78 (Minn. App. 1989) (stating that earning-capacity-measurement rules from child-support cases are appropriate in spousal-maintenance determinations).  A district court may impute income to a party based on earning capacity for the purposes of setting maintenance, if it first finds that the party was unemployed in bad faith.  See Bourassa v. Bourassa,481 N.W.2d 113, 116 (Minn. App. 1992) (reversing a maintenance award when the district court failed to make a finding that the obligor was underemployed in bad faith). 

The district court found that, although appellant was unemployed at the time of dissolution, she had good prospects for employment.  The district court imputed income to appellant in the amount of a reasonable salary for a dental assistant after finding that appellant was a student and that she would soon finish her externship and take the state board examination.  Appellant argues that she cannot take the state board examination because she has a felony conviction that will not be reduced to a misdemeanor because she violated her probation.  The district court found that appellant was unemployed in bad faith, highlighting that any inability to find employment because of her criminal background is of her own doing and cannot be a basis for awarding permanent spousal maintenance. 

Appellant also argues that the district court abused its discretion when it awarded appellant $750 per month for only 12 months.  The district court found (1) the couple did not enjoy a high standard of living during their marriage because appellant gambled away all of the parties’ savings; (2) the seven-year marriage was not a long-term marriage; (3) appellant was self-sufficient prior to the marriage and did not have a long history of being a homemaker; (4) appellant had not forgone any earnings, benefits, or employment opportunities as a result of the marriage; and (5) appellant is healthy and capable of maintaining full-time employment.  Appellant challenges the duration of maintenance based on her felony conviction, but as the district court determined, appellant’s problem has nothing to do with respondent, and employment issues resulting from appellant’s criminal history are her responsibility.  Because these findings are not clearly erroneous they must be upheld.   Minn. R. Civ. P. 52.01; Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992). The district court did not abuse its discretion in imputing income to appellant and awarding her temporary maintenance for 12 months.

Property Division

            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.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000); Ebnet v. Ebnet, 347 N.W.2d 840, 842 (Minn. App. 1984).  A district court abuses its discretion regarding a property division if its decision is “against logic and the facts on [the] record.”  Rutten, 347 N.W.2d at 50.  Appellate courts “will affirm the [district] court’s division of property if it had an acceptable basis in fact and principle even though [the appellate court] might have taken a different approach.”  Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002).  The district court’s findings of fact will not be set aside unless they are clearly erroneous.  Id. 

            Appellant argues that the district court abused its discretion by taking into consideration appellant’s dissipation of marital assets because appellant did not dissipate marital assets in contemplation of dissolution.  Minn. Stat. § 518.58, subd. 1a (2004), limits the time period in which the district court can determine that dissipation of assets occurred when determining a property division to a time when dissolution is contemplated or during the course of dissolution proceedings.  But the district court relied on Minn. Stat. § 518.58, subd. 1 (2004), in finding that appellant’s financial contribution to the marriage was negative.  Upon dissolution of a marriage, the district court must equitably divide marital property and shall consider, among other things, “the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property[.]”  Minn. Stat. § 518.58, subd. 1.

            The district court heard testimony from an Eden Prairie detective that appellant had been charged with three counts of felony theft and was ordered to pay restitution.  Additionally, appellant had lost a significant amount of money gambling in the beginning of 2002, and the parties’ credit-card debt—approximately $32,400—arose principally as a result of appellant’s gambling.  There was also evidence that appellant had at least 25 transactions at a pawn shop.  The record supports the conclusion that appellant did not preserve any of the parties’ assets during the marriage.  The district court did not abuse its discretion in the division of marital property.

Attorney Fees

 An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2004), “rests almost entirely within the discretion of the [district] court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  A district court “shall” award attorney fees when such award is necessary for a party to assert his or her rights in an action, the payor has the financial means to pay the fees, and the payee lacks the means to pay the fees.  Minn. Stat. § 518.14, subd. 1.

            Appellant argues that the district court abused its discretion by ordering respondent to contribute only $1,500 to appellant’s attorney fees.  The district court found that respondent’s net monthly income was $7,760, that respondent’s budget may include contribution to a savings account in order to restore his prior savings depleted by appellant, but that respondent could contribute $1,500 to appellant’s attorney fees.  Although the district court found that appellant did not currently have adequate resources, appellant is able to find gainful employment and can pay her own expenses.  There is nothing in the record to indicate that the district court’s award of $1,500 in attorney fees was insignificant.  The district court did not abuse its discretion in ordering respondent to contribute $1,500 to appellant’s attorney fees.