This opinion will be unpublished and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:

Karen J. Jacobson,






Robert Curtis Jacobson,




Filed November 14, 2006

Klaphake, Judge


Freeborn County District Court

File No. F5-04-716



Paul E. Grabitske, Eskens, Gibson & Behm Law Firm, Chtd., 115 East Hickory Street, Suite 200, P.O. Box 1056, Mankato, MN  56002-1056 (for respondent)


Peter D. Plunkett, Plunkett & Associates, Inc., 107 W. Oakland Avenue, P.O. Box 463, Austin, MN  55912 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Ross, Judge, and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Robert Curtis Jacobson challenges the district court’s order refusing to award him a nonmarital interest in the homestead property that appellant owned jointly with respondent Karen J. Jacobson.  Appellant also asserts that the district court abused its discretion by ordering him to make a cash property-equalization payment before the emancipation of the parties’ youngest child.

            Because appellant has not offered sufficient credible evidence to overcome the presumption that property acquired during the marriage is marital, or to demonstrate an abuse of discretion in the timing of the equalization payment, we affirm.


            Marital vs. Nonmarital Property

            Although we defer to the district court’s findings of fact unless clearly erroneous, we decide the question of whether property is marital or nonmarital as a question of law.  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).  All property acquired during the marriage is presumed to be marital; the party asserting a nonmarital interest has the burden of proving by a preponderance of the evidence that the property is nonmarital.  Id. 

            Minn. Stat. § 518.54, subd. 5 (2004) defines marital property as all property acquired by the parties during the marriage, “regardless of whether title is held individually or by the spouses in a form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property.”   In contrast,

“[n]onmarital property” means property real or personal acquired by either spouse before, during, or after the existence of their marriage, which (a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse; . . . [or which] (c) is acquired in exchange for or is the increase in value of property which is described in clause[ ] (a).



            Here, appellant bases his claim of a nonmarital interest in the homestead property on a transaction that took place during the parties’ marriage, when appellant’s parents sold him a piece of property, which the parties subsequently sold in order to purchase their homestead.  Appellant claims that the first transaction was a gift to him from his parents because the sale price was less than full market value. 

            According to the record, the parties were present at the family meeting where the first transaction was negotiated.  Appellant agreed to pay $136,000 for the 160-acre parcel and testified that land in the area was valued at about $1,000 per acre at the time.  Appellant’s brother testified that $1,000 per acre would be “on the higher end.”  To fulfill the purchase price, appellant agreed to pay $131,000 of debt secured by the property, by making specified payments.  The transaction itself was a contract for deed and included a forfeiture clause in the event of default on the contract.  The record includes no other evidence of valuation and no indication that appellant’s parents treated the transaction as a gift, other than a suggestion that the property was worth somewhat more than the contract price.  Neither of appellant’s parents was available to testify.

            The district court found that it was “possible” that the property had been transferred for less than full value, but the evidence was not sufficient to establish that a gift was made to appellant alone.  The district court rejected appellant’s argument that the fact the title was in his name alone proved that the transfer was to appellant alone, stating that “it is not credible that any gift was made only to [appellant].” 

            “Donative intent is demonstrated by the surrounding circumstances, including the form of the transfer.”  Olsen, 562 N.W.2d at 800.  We conclude after a review of the record that appellant failed to establish that his parents intended him to be the sole recipient of the property or that the discrepancy in market value and sale price was so large that the transaction should be considered a gift.  Appellant bears the burden of overcoming the presumption that property acquired during the marriage is marital; on the record before us, he has failed to sustain that burden.

            Timing of Equalization Payment

            We review the district court’s division of marital property for an abuse of discretion.  Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn. App. 2005).  A district court abuses its discretion when the findings of fact supporting a property division are against logic and the record facts.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  We will defer to the district court’s findings unless they are clearly erroneous and “will affirm the trial 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).

            Minnesota courts have postponed the sale of a homestead when it is occupied by a custodial parent and the minor children.  See, e.g., Goar v. Goar, 368 N.W.2d 348 (Minn. App. 1985).  “But there is no case law suggesting that such an arrangement is appropriate in all cases or mandatory in any.”  Holmberg v. Holmberg, 529 N.W.2d 456, 461 (Minn. App. 1995), review denied (Minn. May 31, 1995).  Nothing in the record before us suggests that the district court’s order, which required appellant to make a cash property-equalization payment one year after final entry of the dissolution, worked a hardship on him.  We will reverse the district court’s property division when it is against logic and facts in the record; there are no record facts here that support a finding of an abuse of discretion.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.