This opinion will be unpublished and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:


Rebecca Ellen Bender, petitioner,





Peter Howard Bernhard,



Filed June 20, 2006


Shumaker, Judge


Hennepin County District Court

File No. DC 281147



Rebecca E. Bender, 8610 West 29th Street, St. Louis Park, MN 55426 (pro se appellant)


Terrence J. Fleming, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2274 (pro bono attorney for appellant on oral argument)


Susan C. Rhode, Moss & Barnett, 4800 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402-4129 (for respondent)




            Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Ross, Judge.



U N P U B L I S H E D   O P I N I O N


            Appellant-mother Rebecca Bender argues that (a) the record does not support certain findings of fact; (b) respondent-father Peter Bernhard’s guideline child-support obligation is inadequate; (c) mother’s maintenance award should have been permanent and retroactive to the date of the temporary order; (d) the district court should have received certain evidence in posttrial proceedings; and (e) the district-court judge should have recused himself.  The findings are supported by the record, and the district court did not abuse its discretion in addressing the issues presented for decision.  Therefore, we affirm.


            The parties married in 1996.  In 1998, mother gave birth to a special-needs child.  Father is a physician.  Mother, a securities lawyer, stopped practicing law after the child’s birth.  The parties separated in September 2002, and mother later petitioned to dissolve the marriage.  Proceedings were acrimonious; mother had three attorneys; and she was pro se for the posttrial proceedings, in which the district-court judge denied mother’s motion that he recuse himself from the case.  The dissolution judgment (a) awarded mother sole legal and sole physical custody of the child; (b) declined to accept mother’s assertions about the degree to which she had to personally care for the child’s needs; (c) set father’s support obligation at the guidelines amount; (d) awarded mother temporary maintenance, but did not make the award retroactive to the date of a prior temporary order; and (e) denied mother’s request to submit evidence in the posttrial proceedings.  Mother appeals.



            Mother challenges several of the findings of fact.  A finding of fact is not set aside on appeal unless it is clearly erroneous.  Minn. R. Civ. P. 52.01.  A finding is clearly erroneous if, after reviewing the record, the appellate court is left with a definite and firm conviction that a mistake was made.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  When reviewing the record to discern whether it leaves the appellate court with the definite and firm conviction that a mistake was made, appellate courts (a) view the evidence in the light most favorable to the findings that are being challenged (Trondson v. Janikula, 458 N.W.2d 679, 682 (Minn. 1990)); (b) defer to district court credibility determinations (Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)); and (c) leave questions of the weight and credibility of expert opinions to the fact-finder (Alstores Realty, Inc. v. State, 286 Minn. 343, 353-54, 176 N.W.2d 112, 118 (1970)).[1]

A.        Necessity That Mother Care for Child

            The crux of the parties’ dispute is the extent to which their child’s condition requires that mother personally care for him, as opposed to having others do so.  The district court acknowledged the intensity of mother’s argument that the type and extent of the child’s special needs require her to personally care for the child, but repeatedly declined to accept that argument both because mother’s testimony on the subject was not credible and because the argument was not otherwise supported by the record.[2]  Viewing this record, including the expert evidence, in the light most favorable to the district court’s findings, and deferring to the district court’s implicit and explicit credibility determinations, and being mindful of our standard of review that requires clear error, we cannot say that the district court’s findings on this subject are clearly erroneous.  See Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000) (stating that findings are not clearly erroneous simply because “the record might support findings other than those made [by the district court]”); see also Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating appellate court need not “discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court’s findings,” and that its “duty is performed when [it] consider[s] all the evidence . . . and determine[s] that it reasonably supports the findings”); Vangsness, 607 N.W.2d at 474-75 & n. 1 (applying Wilson in dissolution case).

B.        Mother’s Earning Ability

            The district court found that but for her child-care duties, mother could earn “a starting salary of $100,000 or more per year.”  Assuming that mother will earn $45 per hour for 32 hours per week and take a one-month unpaid vacation each year, the district court found mother’s reasonable annual salary to be $69,120.  In finding her current need
for maintenance, however, the district court “estimate[d] her starting salary to be $65,000” and found that two years would be an adequate time for her to set up and implement a system of care for the child.  Mother argues that these findings neither accurately reflect her earnings history nor account for the time she must spend caring for the child.  We addressed the necessity of her caring for the child above.

            That mother could currently earn about $100,000 working full time is consistent with the testimony of mother’s expert who stated she could earn $48 per hour.  Also, the district court’s findings detail mother’s employment history, note that she earned $80,000 in 1992, and express understandable distress that mother “provided no assistance in developing evidence of her employability by looking for any employment, either part-time or full-time.”  See Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003) (stating that “[o]n appeal, a party cannot complain about a district court’s failure to rule in her favor when one of the reasons it did not do so is because that party failed to provide the district court with the evidence that would allow the district court to fully address the question”), review denied (Minn. Nov. 25, 2003).  On this record, we will not second-guess the finding of mother’s earning ability.

C.        Father’s Income

            The district court found father’s 2004 income to be $266,000.  Citing evidence provided by her expert, as well as father’s 2001 and 2002 earnings of $361,380 and $538,430, respectively, mother argues that the finding of father’s 2004 income shows that he unjustifiably limited his income.  At trial, the district court personally questioned mother’s expert regarding physician compensation.  The resulting findings show that the district court discounted the evidence of mother’s expert regarding father’s income because mother’s expert misunderstood the compensation structure for physicians.  The district court also found that father’s income in 2001 and 2002 was a result of a “unique opportunity” and at “uniquely situated” clinic that was a “short-term, fortunate situation” which was “not representative” of income generally available in the medical community, and was “[not] representative of what the parties experienced during most of their marriage.”  These findings are consistent with father’s earnings history for years other than 2001 and 2002, and we will not alter the finding of father’s income.


            The district court set father’s child-support obligation at the guidelines amount for his income.  Citing the child’s needs and McNulty v. McNulty, 495 N.W.2d 471 (Minn. App. 1993), review denied (Minn. Apr. 12, 1993), mother argues that the district court should have set support at an amount above the guidelines amount.  Support decisions are discretionary with the district court and are reviewed for an abuse of that discretion.  Rogers v. Rogers, 622 N.W.2d 813, 822 (Minn. 2001).  When setting support, the amount calculated under the guidelines is rebuttably presumed to be the appropriate amount of support.  Minn. Stat. § 518.551, subd. 5(i) (2004).

            In McNulty, this court affirmed an above-the-guidelines support obligation because the child’s expenses were “regular, ongoing, and dedicated to [the child’s] existing needs and monthly expenses.  The payments did not create, but rather, continued [the child’s] accustomed standard of living.”  McNulty, 495 N.W.2d at 473.  For three reasons, we cannot say McNulty requires reversal here.  First, while McNulty involved this court affirming, as within the broad scope of the district court’s discretion, an above-the-guidelines obligation, mother is asking this court to reverse, as outside the district court’s discretion, the implementation of a presumptively correct support obligation.  Second, McNulty states that the circumstances of that case “are unique[,]” meaning that mother’s argument for reversing a presumptively correct support obligation is based on a case in which this court affirmed a district court’s presumptively incorrect decision based on the “unique” facts of that case.  Id.  Third, because we affirm the district court’s findings and the maintenance award, additional support is unnecessary: While the district court found the child’s reasonable monthly budget to be about $1,845 (more than father’s $1,744 monthly support obligation), it also found mother’s reasonable monthly expenses to be $5,433, but awarded her monthly maintenance of $6,715 through September 2005, creating a monthly surplus exceeding the amount by which the child’s needs exceeded the support obligation.  For the two years following September 2005, father’s monthly maintenance obligation is $3,040.  The district court found, however, that, by that point mother should have a net monthly income of at least $3,800, creating an even greater surplus.[3]



            The district court awarded mother temporary maintenance and refused to make the award retroactive to the date of the temporary order.  Mother challenges these decisions.  Maintenance awards are discretionary with the district court.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  While Minn. Stat. § 518.552 (2004) lists factors to be considered in setting the amount and duration of maintenance, the issue is basically the recipient’s need and ability to meet that need balanced against the obligor’s financial condition.  Erlandson, 318 N.W.2d at 39-40.

A.        Duration of Maintenance

            If there is uncertainty about a maintenance recipient’s ability to become self-supporting, permanent maintenance “shall” be awarded.  Minn. Stat. § 518.552, subd. 3 (2004); see Minn. Stat. § 645.44, subd. 16 (2004) (stating “‘[s]hall’ is mandatory”).  Mother’s argument for permanent maintenance is not that the child has special needs, but that the combination of those needs with mother’s assertion that she, as opposed to others, must care for the child.  As noted above, the district court rejected this assumption, and we affirm that rejection.  Therefore, given the findings of mother’s income and needs, we also affirm the award of temporary maintenance.

B.        Retroactivity of Maintenance

            Mother argues that the temporary order’s maintenance award was based on father’s understatement of his then-existing income and that, as a result of the inadequate award, she had a $2,550 monthly deficit for the 19 months between the temporary order and the dissolution judgment.  Therefore, mother concludes, the dissolution judgment should have awarded her maintenance retroactively to the date of the temporary order.

            But mother did not move to modify her temporary maintenance award under Minn. Stat. § 518.131, subd. 9(b) (2004).  And not only does mother’s budget lack a component for debt service, but also the judgment’s property division shows only $936 in credit-card debt.  Thus, any deficit must have been somehow paid.  The record suggests that mother’s alleged deficit was probably incurred on credit and paid for by using funds from the parties’ investment accounts, meaning that the marital estate was reduced by the amount of that deficit.  And because the district court divided the estate equally, half of that deficit has already been apportioned to father in the form of property that he did not receive in the property distribution.  These inferences about how mother’s alleged deficit may have been financed are consistent with the findings that (a) disbursements were made from the parties’ investment account during the proceeding; (b) $12,910 of those disbursements were made for debt on a credit card; (c) despite the fact that “substantial charges” on this credit card were made by mother, father agreed to “equally” share this debt; and (d) each party received an additional $35,000 advance from this account, the use of which was not specified in the property distribution.  Because the property award functionally apportioned father much of any “deficit” generated by the allegedly inadequate maintenance award in the temporary order, we affirm the district court’s refusal to make maintenance retroactive.[4]


            Mother argues that, under Vikse v. Flaby, 316 N.W.2d 276 (Minn. 1982), the district court should have considered certain new evidence in the posttrial proceedings.  Whether to grant a new trial for newly discovered evidence is discretionary with the district court.  Schweich v. Ziegler, Inc., 463 N.W.2d 722, 731 (Minn. 1990).  Under Viske, a new trial based on newly discovered evidence requires, among other things, that the evidence not be cumulative and be “likely to produce a different result.”  Vikse, 316 N.W.2d at 284.  Mother makes no attempt to show that the evidence in question would produce a different result.  Nor is it clear that the evidence, which addressed the child’s condition and its impact on his academic progress, is not cumulative.  The child’s special needs were addressed in detail at trial and in the confidential appendix to the district court’s judgment.  If the child’s condition produces expenses not considered in the judgment, mother can move, under Minn. Stat. § 518.64 (2004), to modify support or maintenance or both.  Without any indication of how, if at all, these alleged problems render the existing support and maintenance determinations defective, mother has not shown that the evidence will likely produce a different result, and, under Vikse, the district court did not abuse its discretion by not considering the evidence in question.


            Stating that a district court should not preside over a case if its circumstances create an appearance of bias, mother argues that the district-court judge should have granted her motion to recuse himself from the case when, before this matter was finally resolved, the district court’s law clerk applied for a job with the law firm representing father.  To support her argument, mother also cites other allegedly prejudicial conduct by the district court.  Mother’s allegations regarding recusal were made in the posttrial proceedings.  If a judge has presided at a motion or other proceeding, that judge may not be removed absent a showing that the judge is prejudiced against the moving party, and an appellate court will not alter a judge’s removal decision absent an abuse of discretion.  Minn. R. Civ. P. 63.03; Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).

            Mother’s attempts to identify prejudice are limited and, while mother makes 14 allegations of impropriety by the district court, in addition to the allegation involving the law clerk, those allegations fall into four general categories: (a) the making of findings unsupported by the record, without consideration of the evidence, or that are inconsistent with findings in prior orders; (b) the making of comments on the record regarding issues not presented for decision; (c) the failure to award mother adequate maintenance; and (d) the failure to admit evidence in posttrial the proceedings.  Most of these allegations are addressed by our resolution of other issues, and none requires a different result here.

            The allegation of prejudice involving the law clerk is unsupported by the record.  The judge’s first letter on the subject states that (a) the judge personally prepared the findings in this matter and did so before the clerk’s application; (b) in doing so, the judge reviewed all of his notes and the exhibits “without . . . assistance” from the clerk; (c) the judge dictated the findings and the clerk typed the draft, which the judge then redrafted, “usually multiple times”; (d) the judge is “sure” that, to “a limited amount,” he used the clerk “as a sounding board on particular issues” and to “assist” in working through “a particular thought process as well as with legal research[,]” but that he did not recall “any particular items that might have been part of that process [in this case]”; (e) at the time of the letter, the clerk’s application was pending with the law firm and if the clerk’s application was still pending when the posttrial motions were considered, the district court would “not permit [the clerk] to have substantive input to any part of the decision”; and (f) “I assure you . . . that [the clerk’s] application has had no impact on my decision in this matter, and will not.”

            In response to inquiries from mother, the judge wrote a second letter stating that (a) he had resolved “the principle issues in this case well before [the law clerk applied to the firm]”; (b) “your case had been decided before [the clerk] applied”; and (c) the identity of counsel in a case makes “absolutely no difference” in the resolution of that case, and the fact that a firm is interested in hiring his clerk makes “even less difference.”  In a follow-up letter, the district court noted that, he understood the Lawyer’s Board to have indicated that the clerk’s conduct had not violated Rule 1.12 of the Rules of Professional Conduct.  Given the district court’s description of its diligent separation of the clerk from any substantive contact with this case and our absolute refusal to construe mother’s argument as one that the district court has affirmatively misrepresented how this case was decided, we cannot say that mother has shown the prejudice required by Minn. R. Civ. P. 63.03 to require reversing the district court judge’s refusal to remove himself from this matter.[5]


            We are not unsympathetic to mother’s arguments and concerns regarding the parties’ child and his needs.  Nor have we reached our decision in this matter lightly.  Indeed, had we decided this case in the first instance, we might have decided some aspects of it differently.  But given the district court’s findings, the composition of this record, our standard of review, and our cognizance of the district court’s superior familiarity with all aspects of this case, we cannot say that a reversal of the district court is required.


[1] At various points in her brief, mother cites unpublished authority.  Unpublished opinions are of limited value in deciding an appeal.  See Minn. Stat. § 480A.08, subd. 3(c) (2004) (stating that “[u]npublished opinions of the court of appeals are not precedential”) (emphasis added); Vlahos v. R & I Constr., Inc., 676 N.W.2d 672, 676 n.3 (Minn. 2004) (stating that district court erred “both as a matter of law and as a matter of practice” by relying on an unpublished opinion of the court of appeals, “stress[ing] that unpublished opinions of the court of appeals are not precedential” and noting both that “[t]he danger of miscitation [of unpublished opinions] is great because unpublished opinions rarely contain a full recitation of the facts” and that “[u]npublished opinions should not be cited by the district court as binding precedent”); Powell v. Anderson, 660 N.W.2d 107, 123 (Minn. 2003) (noting that, “[a]s written, [the unpublished opinion at issue] is too summary to consider it an independent analysis of the merits [of the case]”); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App. 1993) (stating dangers of miscitation and unfairness associated with use of unpublished opinions and that while perhaps persuasive, “[t]he legislature has unequivocally provided that unpublished opinions are not precedential”).

[2] The district court stated that (a) “[mother’s] contention that she is precluded from working due to [the child’s] needs is not shown by a preponderance of the evidence”; (b) the child’s psychologist “reasonably testified that [the child] can have his needs addressed by third parties” and that the child “has challenges but they do not require [mother’s] personal full-time attention”; (c) mother’s proof that she is needed to personally care for the child “fails” because the child can get adequate socialization at school, “no expert has opined that it is medically necessary [for mother to personally care for the child] to the extent for which the mother contends”, and the child now receives therapy classes to assist with his physical development; (d) “[father’s] contention, that [mother’s] proposal for the nature and extent of activities to which she proposes to involve the child on a regular and continuing basis would be exhausting even for a child without disabilities, is the more convincing argument”; (e) “mother’s contention of which extracurricular activities are truly medically necessary is mostly not supported by a preponderance of the evidence”; (f) “mother’s recitation of the child’s medical history, and her involvement in the child’s care . . . fails to show by a preponderance of the evidence that the child’s current condition negates [mother’s] ability to be employed.  The best evidence is that [mother] is capable of employment if she has capable childcare assistants in place”; (g) “[t]he preponderance of the evidence reflects that [the child] can adapt to activities without the presence of his mother”; (h) “[mother’s] contention that her personal attendance to substantially all of [the child’s] needs is not credible and is not supported by the preponderance of the evidence”; (i) “[the child’s] conditions do not require [mother] to forego substantial employment”; (j) “[mother] may argue that she provides the sole care for [the child].  However, this is now by her choice.  There are now acceptable reasonable alternatives”; (k) “[w]hile [mother] had some absence from the work force, for [the child’s] care, she has prolonged her absence”; and (l) “[mother] argues that her work responsibilities and home therapy responsibilities would leave her with little time for housekeeping and for herself.  However some of those housekeeping responsibilities and home therapies for [the child] can reasonably be performed by the well paid, skilled assistant.”

[3] In setting maintenance, the district court noted that the budgets for mother ($5,433) and the child ($1,845) total $7,278, but then approximated their combined budgets to be “$7,500 per month . . . and $8,000 when more substantial caretaker expenses are required.”  Reducing mother’s surpluses by the $722 difference between $7,278 and $8,000 (which, given the extent of father’s responsibility for work-related child-care expenses, insurance, and uninsured medical and dental expenses, may overstate the actual difference in the expenses payable by mother), mother still has monthly surpluses of $459 and $584 before and after September 2005, respectively.

[4] If the alleged deficit was not incurred, retroactive maintenance would be inappropriate.  See Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (stating maintenance requires need).

[5] If we did construe mother’s argument as one that the district court affirmatively misrepresented how it decided this case, the most charitable thing that could be said about such an argument on this record is that it would be utterly frivolous.