This opinion will be unpublished and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:
Judy Marie Creen, petitioner,
Michael Thomas Creen,
Filed November 28, 2006
Chisago County District Court
File No. 13-F9-04-001357
James F. Schneider, Butts,
Sandberg & Schneider, LLP,
Michael T. Creen, OID #2134462, Prairie Correctional Facility AC43, P.O. Box 500, Appleton, MN 56208 (pro se appellant)
Considered and decided by Ross, Presiding Judge; Willis, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
In this marital-dissolution proceeding, pro se appellant husband argues that the district court (1) lacked jurisdiction over the proceeding; (2) abused its discretion when it denied husband’s requests for an order compelling discovery by respondent wife; and (3) abused its discretion when it divided the parties’ property because it considered husband’s criminal record in the process and inequitably distributed the marital property. Because we conclude that the district court did not lack jurisdiction and did not abuse its discretion, we affirm.
wife Judy Creen and appellant husband Michael Creen were married on October 21,
1978. They co-owned a home in
appearing pro se, sought dismissal of the case in October 2004 based on his
allegation that wife was not a resident of Minnesota and did not reside in
Chisago County at the time that she filed the petition for dissolution. Wife, in turn, moved for an order directing
the sale of the parties’ home and directing that one-half of the proceeds be
given to wife and the other half be held in trust pending an agreement between
the parties or a court order. The
district court determined, in a November 22, 2004 order, that the matter was
appropriately venued in
Husband filed two motions in January 2005. The first asked the district court to order that $5,000 of the proceeds of the sale of the parties’ home be released to husband to pay legal fees—husband had been unrepresented to that time—and $6,000 be released to husband’s brother for repayment of a Sallie Mae student loan that husband’s brother had cosigned for the benefit of the parties’ oldest child. Husband’s second motion asked the court to compel wife to respond to certain discovery requests made by husband. In a February 25, 2005 order, the district court agreed that husband was entitled to money for attorney fees to ensure adequate representation of his rights in the dissolution proceeding and ordered that $2,500 be paid directly to an attorney designated by husband but denied husband’s motion to compel discovery, finding that wife’s discovery responses were appropriate and complete.
The dissolution trial was held on June 17, 2005, and the district court entered judgment awarding wife the remaining net proceeds of the sale of the parties’ home, the money in her retirement account, and the family vehicle but also assigning to her all responsibility for the parties’ marital debt. Husband was awarded all of his personal, nonmarital property that remained in storage at the parties’ home. He appeals from the dissolution judgment.
D E C I S I O N
Husband objects to the
district court’s “judicial jurisdiction” over the dissolution. It is unclear from his brief and from his
motion below whether he objects to the district court’s exercise of
jurisdiction, to venue, or to both. Wife
argues both that the district court properly exercised jurisdiction over the
matter and that
To the extent that husband
argues that this matter was improperly venued in
The district court treated husband’s motion to dismiss as an objection to venue and found Chisago County to be the appropriate venue for the dissolution matter because, at the time, the parties co-owned a home in Chisago County; wife maintained Chisago County as her permanent address, although she temporarily resided in Wisconsin; and husband’s permanent address remained in Chisago County, although he was temporarily incarcerated in Carlton County.
The record supports the
district court’s determination that wife’s “permanent residence” at the time
she filed the petition for dissolution was
Because the district court’s
denial of husband’s motion to dismiss was based on a determination of proper
venue, the issue of whether the district court had statutory authority under
Minn. Stat. § 518.07 (2004) to exercise jurisdiction over the dissolution
proceeding was not considered by the district court and is therefore not
properly before this court. See Thiele
v. Stich, 425 N.W.2d 580, 582 (
Husband cites Wyman v. Wyman, 297
claims that the district court “deprived [him] of his rights to a fair trial”
by not requiring wife to provide “any” discovery. “[T]he trial judge has wide discretion to
issue discovery orders and, absent clear abuse of that discretion, normally its
order with respect thereto will not be disturbed.” Shetka
v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (
Minn. Stat. § 518.58, subd. 1 (2004), provides:
Upon a dissolution of a marriage, . . . the court shall make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property. The court shall base its findings on all relevant factors including the length of the marriage, any prior marriages of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party.
1. Reference to Husband’s Criminal Record
argues that the district court improperly reviewed his criminal file when it
divided the parties’ property, which biased the district court and violated the
mandate of section 518.58 that the district court divide the marital property
without regard to “marital misconduct.”
“Pro se litigants are generally held to the same standards as
attorneys,” Heinsch v.
Aside from a misplaced reference to section 518.58, husband cites no authority for his argument that it was improper for the district court to refer to his criminal record in determining an equitable division of the parties’ martial property. The fact that husband is incarcerated bears directly on issues necessarily considered by the district court in the dissolution proceeding, including husband’s income, expenses, and ability to contribute to the support of his children. It was not an abuse of discretion for the district court to take note of facts relevant to its judgment, and husband provides no contrary authority.
2. Determination of Marital Debt
Debt apportionment is part
of a property division. Berenberg v. Berenberg, 474 N.W.2d 843,
848 (Minn. App. 1991), review denied
(Minn. Nov. 13, 1991). Debt accrued by
either spouse or both after the marriage and before the valuation date
established for purposes of the division of property is presumed to be marital
debt. 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 (
Husband argues that the district court erred when it included certain bills that wife presented in its calculation of the parties’ marital debt. He claims that because four of the bills (Capital One, Frontier, Xcel Energy, and Providian Visa) were dated after his incarceration, they were incurred by wife and should be considered nonmarital debt. Wife testified at trial that these debts were incurred before husband’s incarceration, but because they were still outstanding, she continued to receive bills for their collection after husband’s incarceration. Husband also argues that because another of the bills wife presented (Bank One) reflects debt belonging to the parties’ adult daughter, the debt should be considered nonmarital. Wife testified that the Bank One card belonged to her and the parties’ adult daughter jointly. But this particular bill was paid before trial, and the debt was not included in the district court’s calculation. Husband’s objection is therefore immaterial.
Husband and wife testified
inconsistently regarding whether the debt reflected in the other four bills was
incurred before or after the parties’ separation. But even if some of the debt was incurred
after husband’s incarceration, debt incurred before the valuation date is
rebuttably presumed to be marital debt under Minn. Stat. § 518.54. Husband failed to successfully rebut that
presumption. Further, it is well settled
that judging the credibility of witnesses and the weight given to their
testimony rests within the province of the fact-finder. Fontaine
v. Hoffman, 359 N.W.2d 692, 694 (
3. Division of Marital Property
“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 (
Husband argues that he should have received his “marital share” of the proceeds from the sale of the parties’ home and that, if he did, he could fulfill his child-support obligation and still have funds available to him upon his release from prison. Wife argues that the district court’s division of property was equitable and necessary to prevent undue hardship to wife.
The district court made findings regarding the parties’ income and expenses, findings that husband does not challenge on appeal, and determined that the parties had the following marital assets: $48,151.45 in proceeds from the sale of the parties’ home, half of which had already been disbursed to wife and $2,500 of the balance of which had been disbursed to husband to pay attorney fees, leaving $21,575.73 at the time of trial; various personal and household property; a 2002 Saturn automobile; and wife’s retirement account, valued at $1,800. The parties’ outstanding marital debt, according to the district court, consisted of credit-card bills and utility bills totaling $5,103.13; the Sallie Mae student loan in the amount of $5,669.42; and a loan for two family automobiles, one of which the parties had given as a gift to their adult daughter, in the amount of $10,753.36. The district court determined that the parties’ marital debt totaled $21,525.91.
The district court concluded that it was appropriate to award all of the marital assets—other than the $2,500 already paid to husband and certain items of husband’s personal property—to wife for the following reasons: (1) it also assigned wife responsibility for all marital debts, which equaled nearly all of the remaining proceeds from the sale of the home; (2) husband had paid no child support since July 2003 because of his incarceration; (3) husband would continue to be incarcerated for six more years, and wife would remain financially responsible for the parties’ minor children; (4) at trial, husband did not actually object to wife receiving the remaining proceeds; he simply objected to her receiving them in one lump sum and would have preferred to receive them himself and then pay child support to wife; and (5) husband’s contribution to the unreasonable length and expense of the litigation would have prompted the district court to award wife attorney fees, but instead, wife could choose to pay a portion of her attorney fees out of her award.
Although he argues that he should have received his “marital share” of the proceeds from the sale of the home, which he appears to believe is one-half of the proceeds, husband fails to acknowledge the likelihood that he would then have been assigned a “marital share” of the marital debt as well. Berenberg, 474 N.W.2d at 848 (stating that debt apportionment is treated as part of the property division). Husband also fails to address how he could meet a child-support obligation for six years—his minor children were 10, 12, 14, and 16 at the time of the dissolution judgment—and still have money remaining upon his release from prison, especially after paying his share of the marital debt.
The district court supported its property division with findings that set out its rationale, and those findings are supported by the record. An “equitable” division of marital property does not require an equal division, Crosby, 587 N.W.2d at 297, and the district court had “an acceptable basis in fact and principle” for its property division, Rohling, 379 N.W.2d at 522-23. There was no abuse of discretion.