This opinion will be unpublished and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

A05-1158

 

In re the Marriage of:

Stephen Edward Wilson, petitioner,

Respondent,

 

vs.

 

Julie Ann Wilson,

Appellant.

 

Filed April 11, 2006

Affirmed

Randall, Judge

 

Mower County District Court

File No. F9-04-1574

 

Thomas C. Baudler, Baudler, Baudler, Maus & Blahnik, L.L.P., 108 North Main Street, Austin, MN† 55912 (for respondent)

 

Scott Richardson, Richardson Law Office, 132 Third Avenue Northwest, Austin, MN55912 (for appellant)

††††††††††† Considered and decided by Minge, Presiding Judge; Randall, Judge; and Collins, Judge.*

 

 

U N P U B L I S H E D†† O P I N I O N

RANDALL, Judge

††††††††††† On appeal in this property-division dispute, appellant-wife argues that the district court abused its discretion by awarding respondent-husband grossly more property than was awarded to wife because of the possibility that husband may need knee surgery in the future.† We find the district courtís division of property has an acceptable basis in fact.† Affirmed.

FACTS

††††††††††† Respondent Stephen Wilson and appellant Julie Wilson were married on November 28, 1969.† Throughout the marriage, respondent was employed by George A. Hormel & Company, where his various employment duties required him to perform physically strenuous activities, such as lifting large amounts and doing repetitive stooping, bending, and twisting.† In February 1991, respondent suffered numerous injuries when the truck he was driving was struck by a snowplow.† According to respondent, the injuries included broken ribs, lacerations on his face, a bruised lung, five herniated discs, and stretched spinal cord.† Despite the severity of his injuries, respondent returned to work full-time four months after the accident.

††††††††††† On February 17, 2004, respondent filed a petition to dissolve the marriage.† Prior to trial, the parties stipulated to the value of all assets to be divided, leaving the division of the assets to be decided by the district court.† The district court issued its order dissolving the marriage on April 29, 2005.† The court found the stipulated value of the partiesí assets to be $588,861.40.[1]† The court then awarded respondent the marital homestead and appellant a more substantial share of the partiesí liquid assets.† Respondent was awarded approximately 57% of the partiesí assets.† The district court based the property division on respondentís poor health that resulted from the 1991 accident.† This appeal followed.††††††††

D E C I S I O N

††††††††††† ďDistrict courts have broad discretion over the division of marital property and appellate courts will not alter a district courtís property division absent a clear abuse of discretion or an erroneous application of the law.Ē† Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn. App. 2005).† A district court abuses its discretion regarding a property division if its findings of fact are ďagainst logic and the facts on [the] record.Ē† Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).† Appellate courts ďwill affirm the trial courtís division of property if it had an acceptable basis in fact and principle even though [the appellate court] might have taken a different approach.Ē† Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002).

††††††††††† Appellant argues that the district courtís division of the partiesí martial assets was an abuse of discretion because respondent received substantially more property than appellant.† When dividing marital property, the district court is required to ďmake a just and equitable division.Ē† Minn. Stat. ß 518.58, subd. 1 (2004).A court must take into account various factors, such as the health of the parties, vocational skills, and employability.† Id.† But ďthe property division need not be mathematically equal to be just and equitable.Ē† Justis v. Justis, 384 N.W.2d 885, 888 (Minn. App. 1986), review denied (Minn. May 29, 1986).

††††††††††† In Kaste, the husband appealed the district courtís disposition of marital property that awarded 57% of the estate to the wife and 43% to the husband.† Kaste† v. Kaste, 399 N.W.2d 128, 130 (Minn. App. 1987), review denied (Minn. Mar. 13, 1987).† Because the wife had been employed as a secretary early in the marriage, the award was partially based on the wifeís arthritic condition that prevented her from obtaining any type of employment that required typing.† Id.† This court held that ď[g]iven the trial courtís findings on [wifeís] health and financial, educational, and occupational difficulties, the property division is not clearly erroneous, particularly when the major asset [wife] received, the homestead, consumes income rather than producing it.† Id. at 130-31.†

††††††††††† Here, similar to Kaste, the record reveals that appellant received approximately 43% of the marital estate and respondent received approximately 57% of the marital estate.† The district court rationalized the disparity in the property division by stating:

[Respondent] has on-going health concerns and pain and suffering caused by his accident.† He will require knee surgery in the foreseeable future and only has approximately $9,000.00 worth of PIP medial insurance benefits remaining as part of the coverage applicable to his accident.† [Appellant] is in good health.† [Appellant] has been awarded a substantial share of the partiesí liquid assets.† [Respondent] has been awarded the marital homestead.† While a large asset on the spreadsheet, the homestead is not immediately liquid, nor should [appellant] be required to sell the home in order to cover his medical expenses.

 

††††††††††† Appellant contends that the property division was inequitable because there is no medical evidence in the record demonstrating that respondent will require surgery, and there is no evidence suggesting the cost of the surgery.† We disagree.† At trial, respondent testified as follows:

I had - - I had broke some ribs, and I cut my face up, some teeth, bruised a lung.† I herniated five disks, two in my neck, three in my back.† I stretched my spinal cord.† Because of the spinal cord injury I have numbness and tingling from my waist down for life.† They canít be fixed.† I canít feel hot or cold with my feet.† I could stand in scalding water or I could stand on ice, and I wouldnít know the difference.† The tingling is similar to when your foot falls asleep.† Thatís what the tingling feels like, and because of the - - because of the herniated disk - - I have one that is pinching a nerve and it radiates down my left arm, and the three fingers on my left hand tingle always and they turn white if they get cold at all - - if I am out in the winter and they get at all cold.† In that accident, the emergency brake lever on the pickup lifted my knee cap off my knee and it took a chunk of cartilage out of my knee.† I have two surgeries on it thus far.† They told me the next one, because itís bone on bone - - thereís no cartilage left in my knee - - because itís bone on bone, the next surgery will be a knee replacement.† I am trying to put it off.† They suggested I go till I couldnít stand it anymore.† That bothers me every day walking, going up and down steps, whatever.† Between the tingling in my legs, I try to get some relief for my neck.† My neck gets stiff because of the herniated disks.† I took a shot with a chiropractor, but she after eight sessions pretty much gave up and said thereís nothing more she could do.† And what she did do didnít work.

 

Respondent, who is 56, further testified that he hopes to work until age 62.† In contrast, appellant, who is 57, testified that she is in good health and hopes to work until age 70.† Although respondent did not produce any medical evidence that he must have surgery in the foreseeable future, the record reflects that respondent is still affected by the injuries.† See Minn. Stat. ß 518.58, subd. 1 (requiring the district court to consider the partiesí health when dividing the marital assets).† Further, the district court considered the fact that the homestead is not liquid and that respondent should not be required to sell the house to cover his medical expenses.† We conclude that the district courtís division of property has an acceptable basis in fact.† Accordingly, the district court did not abuse its discretion in dividing the marital assets.††††††††††

††††††††††† Affirmed.



* Retired judge of the district court, serving as judge of the Court of Appeals by appointment pursuant to Minn. Const. art. VI, ß 10.

[1] Appellant asserts that the district court erroneously calculated the value of the martial assets to be $588,861.40, rather than the actual value of $603,269.32.† Respondent concedes the error, but contends that as a result of the error, the actual difference in assets awarded to the parties is $85,277.38, rather than appellantís claimed differential of $93,786.22.