This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re the Marriage of:
Richard Anthony Giese, petitioner,
Jodi Elizabeth Giese,
Filed June 20, 2006
Chisago County District Court
File No. F2-03-718
Elizabeth Richards, Pierce
Richards Law Office,
Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
In this marriage-dissolution appeal, pro se appellant challenges the district court’s determinations as to property division, valuation date, and spousal maintenance, and claims the court was biased in its award. Because the evidence supports the court’s findings and because there was no indication of bias, we affirm.
The parties to this appeal were married for 15 years. They separated on October 10, 2002, and judgment of dissolution was entered on March 18, 2005. The parties had one child, who was a minor at the time of the dissolution.
The judgment incorporated the parties’ partial stipulation as to child custody, parenting time, pension division, the value of homestead equity, and the division of motor vehicles and horses. The issues of child support, spousal maintenance, division of remaining property and debts, and attorney fees were contested and were decided by the court after trial.
The parties agreed that the marital equity in the homestead was $200,000 and that each was to receive $50,000; $50,000 was to be held in trust pending appellant’s purchase of the home; and the remaining $50,000 was to be held for disposition to respondent by further order of the court. Appellant contended that the parties’ marital debt was $3,500, and respondent claimed such debt to be $29,165. The court determined that the marital debt was $27,072.40, that each party was responsible equally for the debt, and that respondent was to receive from the $50,000 homestead equity reserve the sum of $13,536.20 with which to pay half the marital debt.
At the time of the dissolution, appellant was working for Links Recreational for $10 an hour. He previously had been employed in law enforcement for 18 years and was a police captain at the University of Minnesota Police Department earning a gross annual income of $74,944. His employment was terminated in 2004; he filed a grievance; and ultimately he received a settlement of $32,144.65, less tax withholdings. An expert vocational consultant testified that appellant was capable of earning $40,000 to $50,000 a year. The court found that appellant was voluntarily underemployed and imputed to him annual income of $40,000.
At the time of the dissolution, respondent was working as a house cleaner earning a net monthly income of $1,017.17.
The court awarded spousal maintenance in a lump sum of $22,668.69, to be paid from the $50,000 in equity reserve, and $594.04 each month for child support according to the child-support guidelines.
Appellant contends that the court erred by failing to require respondent to reimburse him for $4,989 in homestead mortgage payments respondent did not pay; $844 for the value of respondent’s occupation of the homestead after it had been refinanced; $600 for a horse that had been awarded to him; $2,161.80 for appliances that he had to replace in the homestead after respondent moved out and took certain appliances with her; and one-half the 2003 tax refund. He also claims that the court erroneously set the valuation date at November 20, 2003, when it should have been set either on June 23, 2003, or July 20, 2003; that the court erroneously treated appellant’s settlement with the police department as income; that the court clearly erred in finding that respondent had a need for maintenance and in requiring appellant to pay some of respondent’s debts; and that the court showed bias against appellant. Appellant did not move for amended findings or a new trial but rather challenges the judgment on appeal.
D E C I S I O N
appeal, this court reviews awards of child support, spousal maintenance, and
property division for an abuse of discretion.
Rutten v. Rutten, 347 N.W.2d
47, 50 (
the district court’s findings are based on credibility assessments of
witnesses, we generally defer to the district court because it has seen and
heard the witnesses and is in a better position than an appellate court to
evaluate credibility. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (
The issue of the credibility of both of the parties has arisen in this case. The Court finds that both parties throughout the proceeding have been less than candid with the Court and both have credibility issues. The Court will decide the issues herein giving the testimony of the parties and the evidence they submitted the weight the Court finds is appropriate given all the circumstances and the lengthy history of this case.
Appellant’s Financial Circumstances
One component of appellant’s income
was the severance payment of $32,144.65 that he received in a settlement with
the University of Minnesota Police Department.
Respondent contends that appellant committed fraud on the court by not
disclosing the severance payment.
Appellant argues that the severance was not approved until the day before
trial and that, at the time of trial, he was not aware of the approval. The district court found that there was
insufficient evidence to prove fraud.
Nevertheless, an employment-severance payment representing a wage
payment is classified as income for purposes of determining child support and
The court imputed to appellant an annual wage of $40,000. The court based its decision on the expert testimony of a vocational counselor, whom the court found “to be a credible expert witness,” and on appellant’s own failure to provide sufficient evidence that he could not find suitable employment in jobs for which his 18 years of law-enforcement experience and skill would qualify him. Especially telling is the court’s quote of the expert’s opinion that appellant was “self limiting his income and has chosen to work at practically minimum wage in a dead end job.” When the evidence shows that a support obligor is voluntarily underemployed, the law allows the court to impute income to him. Minn. Stat. § 518.551, subd. 5b(d) (2004). Noting that appellant has chosen to work in a field completely different from that in which he has substantial experience; that he has made no effort to retrain in some other occupation; that, even if he started over in law enforcement, his entry-level income would be higher than his present earnings; and that he only has a possibility of advancement in his current job without any guarantee of increased wages, the court found that appellant did not satisfy any of the statutory factors that would show that he is not voluntarily underemployed. The evidence supports the court’s determination of appellant’s income.
At the time of the dissolution, appellant was residing with his girlfriend, her three minor children, and two additional minor children who are the issue of appellant and his girlfriend. In determining appellant’s expenses, the court excluded amounts related to his girlfriend and her children by another father because appellant’s evidence “was unclear as to which of the numbers provided were the expenses for [appellant] or for his household.” Thus, the court modified the amounts submitted to reflect only expenses of appellant. The modified expenses appear to be reasonable and supported by the credible evidence.
Although appellant contends that the court showed its bias in not accepting his income and expense figures, appellant’s lack of credibility seemed to have been a substantial reason for the court’s determination. For example, the court noted in its findings of fact the implausibility of appellant’s claim that the mortgage company to which appellant applied for refinancing of the homestead “fudged” some of the numbers on appellant’s loan application. The court further noted substantial discrepancies in appellant’s employment and income disclosures on the application. Even though appellant offered evidence and argument on many of the financial issues, the court’s findings reflect appellant’s failure to present credible proof on the matters as to which he alleges the court erred.
Respondent’s Financial Circumstances and Need for Spousal Maintenance
The court awarded to respondent temporary rehabilitative maintenance payable in a lump sum of $22,668.69 from the $50,000 homestead equity reserve. The court made detailed findings on all the statutory factors applicable to spousal-maintenance awards. See Minn. Stat. § 518.552, subd. 1 (2004) (listing applicable statutory factors). The court found that, aside from $100,000 she received in homestead equity and monthly child support of $594.04, respondent has limited resources for her support. She had been out of the job market for most of the marriage and needs retraining to become fully self-supporting. She is enrolled in a homeopathy program which has the potential for generating sufficient income to become self-supporting. The lifestyle to which respondent became accustomed during the marriage allowed her to be a full-time homemaker and to engage in the hobby of raising and showing horses. The evidence supports the court’s conclusion that, based on respondent’s age, employment history, and earning potential, and considering the property she received in the dissolution, she has a need for temporary rehabilitative maintenance.
Although appellant contends that he does not have the ability to pay maintenance from his imputed income and meet his own necessary expenses, the court recognized the difficulty appellant would have if monthly maintenance were ordered and instead ordered the lump-sum payment from a reserve of the homestead equity.
The district court is required to
make a just and equitable division of all marital property.
The parties stipulated to the
division of vehicles and a horse trailer, and they divided the household goods
and furnishings. They also agreed to the
division of three horses. The court
determined that the household goods and furnishings should remain as
divided. Appellant contends that the
court did not account for appliances that respondent took from the homestead
but did not replace. Under its broad
statutory authority to award household goods and furnishings to either party,
the court was not required to account for any such items.
Appellant claims that the court clearly erred in finding marital debts in the sum of $27,072.40. He argues that only a VISA credit-card debt with a balance of $3,500 should have been included as marital. The court found that appellant produced no evidence to support his contention. Conversely, the court examined billings and account statements in evidence to determine whether or not debts had been incurred prior to the evaluation date. All of the debts included as marital were supported by the evidence.
“The court shall value marital
assets for purposes of division between the parties as of the day of the
initially scheduled prehearing settlement conference, unless a different date
is agreed upon by the parties, or unless the court makes specific findings that
another date of valuation is fair and equitable.”
In its order of September 27, 2004, the court notes that “[t]he first scheduled pretrial was set for November 20, 2003, however the first scheduled pretrial that was held was on January 16, 2004.” The court used November 20, 2003, as the valuation date. Appellant argues that the valuation date should have been earlier, either on June 23, 2003, or July 30, 2003, the former allegedly being a prehearing conference date before another judge and the latter being the date on which mediation was completed. But the record shows that the actual prehearing settlement conference date was November 20, 2003, irrespective of other dates assigned for other purposes. And the court specifically noted in its September 27, 2004 order that neither party had shown that any other date would be more fair and equitable. The court did not err in valuing property as of November 20, 2003.
Appellant argues that the refunds on his federal and state 2003 tax returns should not have been included as marital property because the parties had been living apart for about a year and appellant chose the filing status of “married but filing separately.” The
court found that, despite filing status of the time of filing or receipt of the refunds, the refunds were income of appellant prior to the valuation date and therefore were subject to property division. Although appellant disputes this finding, he fails to show how it is erroneous. The evidence supports the finding.
Appellant claims entitlement to reimbursements for homestead mortgage payments that respondent failed to make and that he paid; for the value of respondent’s use of the homestead after it was refinanced; and for a sum he placed in escrow in lieu of the sale of a horse. Appellant also contends that the court did not dispose of these items in its dissolution findings.
The court’s obligation is to try to
achieve a “just and equitable division” of property.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.