This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
In re the Marriage of:
Patricia JoAnn Renard, petitioner,
Ronald Allen Renard,
Affirmed in part, reversed in part, and remanded
Washington County District Court
File No. F0-04-1464
Patricia J. Renard,
Craig J. Beuning, Greg T. Kryzer, Knaak & Kantrud, P.A., 3500 Willow Lake Boulevard, Suite 800, Vadnais Heights, MN 55110 (for appellant)
Considered and decided by Minge, Presiding Judge; Hudson, Judge; and Huspeni, Judge.*
Appellant-husband argues that the district court abused its discretion: (1) by ordering him to pay permanent spousal maintenance; (2) in calculating his income and expenses and determining child support; (3) in allocating marital debt; (4) in making its custody determination; and (5) by denying his motion for a new trial. Because the record does not establish that the district court abused its discretion in awarding permanent spousal maintenance, calculating appellant’s income, making its custody determination, or denying appellant’s motion for a new trial, we affirm on those issues. But because the district court failed to consider a federal benefit for a child and did not properly determine excess income in determining the amount of spousal maintenance and making the child support award, and erred in the allocation of a portion of the parties’ marital debt, we reverse and remand those portions of the decision.
Appellant Ronald Renard and respondent Patricia Renard were married in 1988 and have two children, one born in 1992 and the other in 1994. The younger child has severe autism and requires constant care and supervision. He will likely require such care and supervision for the rest of his life.
In March 2004, respondent petitioned for dissolution of the parties’ marriage. Appellant was represented throughout most of the dissolution proceedings by three attorneys from two different law firms. Although several continuances were granted to accommodate counsel and appellant, when counsel withdrew on the eve of trial, a further continuance was denied and appellant proceeded pro se at the dissolution trial. After trial, the district court awarded respondent sole physical and legal custody of the children and awarded appellant visitation. The district court also ordered appellant to pay $1,688 per month in child support, provide medical insurance for the children, and pay $1,400 per month in permanent spousal maintenance. Appellant and respondent were ordered to sell their homestead, subtract all marital debt owed from the proceeds, and then divide the remainder equally, with support and maintenance arrears, attorney fees, and other debts to be deducted from appellant’s share. Appellant filed a motion for an amended findings or, in the alternative, a new trial. The district court denied appellant’s motion, and this appeal followed.
first issue is whether the district court abused its discretion in finding that
appellant must pay permanent spousal maintenance. We review a district court’s maintenance
award for abuse of discretion. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (
determination of spousal maintenance, the district court must follow the
considerations set forth in Minn. Stat § 518.552 (2006). The court may grant maintenance for a party who “is the custodian of a child whose condition or
circumstances make it appropriate that the custodian not be required to seek
employment outside the home.”
the award of spousal maintenance, the district court must also consider “the
financial resources of the party seeking maintenance, including marital
property apportioned to the party, and . . . the extent to which a provision
for support of a child living with the party includes a sum for that party as
Here, appellant claims that several factors make the award of maintenance to respondent inappropriate. First, he emphasizes that she holds a real estate agent’s license and a securities-brokerage license, and has completed some post-secondary education. Although these facts could be relevant to the award of maintenance, the district court had to determine whether, under the circumstances, respondent would become “fully or partially self-supporting” in light of the needs of her child. See id., subd. 2(b). It appears that the securities licensure is not current, that she has not worked in the securities field in recent years, that she only obtained the real estate agent licensure at the time of the dissolution to sell the parties’ home, that she has no other real estate experience, and that there is no showing that the post-secondary education has given respondent any readily marketable job skills. More importantly, respondent’s care of the autistic child is not compatible with employment.
Next, appellant asserts that in setting maintenance, the district court should have considered the $250 monthly federal benefit that respondent receives for the care of their child. Because the benefit provides funds to respondent for the care of the child, the benefit must be recognized in setting maintenance and is relevant to the determination of child support. The district court’s failure to recognize or consider it is error. It will be further considered in connection with the child support issue.
asserts that the maintenance award is excessive in light of his income. We note that appellant is self-employed and
operates a ready-mix cement business. He
introduced his tax records, which showed a very limited income. But respondent introduced appellant’s bank
records, which indicate that appellant has a substantially greater income. The district court relied on the bank
records. Although the maintenance award
places a financial burden on appellant, the district court found that appellant’s
“resources are greater than he would lead the court to believe” and that the
award does not exceed his ability to pay. This court has recognized “the opportunity for
a self-employed person to support himself yet report a negligible net income .
. . .”
The district court further found that the amount granted for maintenance is fair considering that after adjusting for payments required by its order, each party will be left with a significant monthly deficit ($1,262 for the appellant; $1,073 for the respondent). It appears that respondent’s deficit should be further reduced by the $250 that she has available from the federal benefit. This reduces her deficit to $823 per month, approximately two-thirds of appellant’s. In view of the care needed for the autistic child, the resources of the parties, and the district court’s analysis as shown on this record, we conclude that the district court did not abuse its discretion in awarding respondent permanent spousal maintenance. But, because the failure to consider the federal benefit of $250 per month is error in setting the level of maintenance, we reverse the amount of maintenance ordered and remand for reconsideration. As the discussion of child support indicates, this federal benefit and this maintenance award also affect child support. Upon remand, the district court shall coordinate the adjustment for the federal benefit between maintenance and support and reconsider the relative deficits of the parties, their respective ability to deal with those deficits, and appellant’s ability to meet his obligations.
second issue is whether the district court erred when it calculated appellant’s
net income and expenses for child support purposes. A determination of the amount of an obligor’s
income for purposes of child support is a finding of fact and will not be
altered on appeal unless clearly erroneous.
Ludwigson v. Ludwigson, 642
N.W.2d 441, 446 (
To calculate monthly
gross income, the district court includes “any form of periodic payment to an
individual including, but not limited to, salaries, wages, [and]
self-employment income . . . .”
Appellant is self-employed, working for the company he owns, Ron Renard Cement. Appellant submitted his income tax returns to establish his income. But, respondent testified that appellant did not report all of his income and submitted appellant’s bank records for 2002 and 2003, including deposits, as evidence of appellant’s income. The district court determined appellant’s self-employment gross monthly income for 2002 and 2003 by subtracting payments for supplies and labor. Then, subtracting federal income tax, state income tax, self-employment tax, and health insurance, the district court determined appellant’s net monthly income to be $4,626.
Appellant claims that
his gross income for 2004 was $42,000. But appellant does not supply a different
accounting of the funds transferred in and out of his bank account. Instead, appellant relies on his 2002 and
2003 tax forms. Parties must supply
relevant supporting documentation necessary to calculate the parental income
for child support purposes.
The district court determined appellant’s guideline monthly support obligation to be $1,388. The district court then deviated from the support guidelines under Minn. Stat. § 518.551, subd. 5(b) (2004), by adding $300 of monthly support. The district court deviated because it found that before consideration of any spousal maintenance, appellant had excess income given his monthly expenses, while, in contrast, respondent has no income because she cares for their children. Moreover, the district court found that the special needs of their children supported an upward deviation under Minn. Stat. § 518.551, subd. 5(c)(2) (2004), in addition to the benefit appellant will receive from two dependency tax exemptions under Minn. Stat. § 518.551, subd. 5(c)(4) (2004).
Appellant contends that the upward deviation was unwarranted, given the federal benefit of $250 per month to care for their son and the spousal maintenance he was ordered to pay. In deviating from the guidelines, the district court noted the childcare demands placed on respondent by the special needs of their children. The district court did not, however, consider either the spousal maintenance award in determining appellant’s income or the federal benefit in assessing respondent’s resources under Minn. Stat. § 518.551, subd. 5(c)(1) (2004). Although the federal benefit’s character and purpose are not entirely clear from the record, the benefit appears to provide funds for the care of the autistic child, and the amount of the benefit is almost as much as provided by the upward deviation.
Furthermore, although the district court recognized that the level of child support affected the funds available for spousal maintenance, it did not consider the reciprocal effect of maintenance on the availability of excess income for child support. In fact, the district court found that appellant would have a shortage of $1,262 per month. Given this shortage, it was inconsistent for the district court to find that appellant had excess income without any further explanation. This inconsistency constitutes an abuse of discretion. This shortage may be exacerbated by the liability that is assigned to appellant for health care or it may be limited if the district court determines appellant’s actual income is understated.
The district court’s apparent failure to consider the federal benefit in its assessment of child support needs and its excess income conclusion constitute error. We remand the child support award for reconsideration in light of respondent’s federal childcare benefit. On remand, the district court shall also reconsider the determination of excess income and the award of $300 per month of additional support in light of the income shortage when support and maintenance obligations are both considered.
third issue is whether the district court erred in allocating the parties’
marital debt. “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 (
The district court ordered the sale of the parties’ home and the equal division of the net proceeds, minus marital debt. The court determined the marital debt to include: two mortgages (in an amount “as determined”), a $5,546.57 mechanic’s lien, Sampson Well Company debts in the amount of $1,025, unsecured marital debts of $8,457, and $44,255 owed to respondent’s mother. Finally, the district court ordered deductions, including support and maintenance arrears, from appellant’s share of the proceeds after the subtraction of debt.
Appellant contends that the district court abused its discretion when awarding respondent a car that was purchased from proceeds of the second mortgage and then deducting the second mortgage amount from the net proceeds from the sale of the marital homestead. The car, which was purchased during the marriage, is marital property and thus part of property subject to just and equitable division by the district court. The parties’ second mortgage, which apparently funded the purchase of the car, is also marital. The means of payment is not a factor considered in the division of property, nor must the district court match the debt to the property acquired as a result. Moreover, one party to the dissolution may be held liable for marital debts even when the other party received the benefit from the debt. Dahlberg, 358 N.W.2d at 76. “An equitable division of marital property is not necessarily an equal division.” Crosby v. Crosby, 587 N.W.2d 292, 297 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). In allocating the debt from the second mortgage to both parties (to be taken out of the proceeds of the sale of the house), the action of the court was fair and equitable. Therefore, the district court did not abuse its discretion with respect to the award of the vehicle to respondent.
Appellant further contends that the district court abused its discretion and failed to make adequate findings of fact by determining that a $44,255 loan from respondent’s mother was marital debt to be paid from the sale of marital property and by then deducting the debt again from appellant’s share of the equity in the marital home in the form of child support arrears. Starting in October 2003, when appellant left the house, respondent’s mother lent her money to meet basic needs in the absence of support from appellant. Some of the money was also used to maintain and repair the parties’ homestead. To the extent the loan proceeds were used to preserve or enhance the value of the marital property, both appellant and respondent benefited from the debt, and it is properly allocated to both parties and fairly subtracted from the proceeds of the sale of the house.
The district court also found that the loan was taken “[a]s a result” of appellant’s failure to meet his temporary child support and maintenance obligations. Allocated as marital debt, the $44,255 loan owed to respondent’s mother would be subtracted from the proceeds of the house and repaid in equal portions by appellant and respondent. But the district court further ordered deductions for support arrears from appellant’s proceeds. To the extent that the loan taken by respondent was used to replace the money that appellant failed to supply for these purposes, and appellant is both held liable for the back support and the loan to cover that support, he was ordered to pay a portion of his arrearages twice.
Ordering such a double payment is an abuse of discretion. We reverse and remand to the district court for a determination of the extent to which the loan was used to cover appellant’s support arrearages, and therefore to be repaid solely by appellant, and the extent to which the loan was used to maintain marital property, and therefore may be considered marital debt to be repaid by both parties. The amount of the loan the district court determines respondent used as a replacement for appellant’s unfulfilled support obligations is properly repaid by appellant, together with interest, from his portion of the proceeds of the sale of the house. But appellant’s arrearage obligation should be reduced to the extent the loan proceeds covered arrearages and he is repaying that loan; he may only be ordered to pay arrearages once.
fourth issue is whether the district court abused its discretion in making its
custody determination. “[A]ppellate
review of custody determinations is limited to whether the [district] court abused
its discretion by making findings unsupported by the evidence or by improperly
applying the law.” Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (
making custody decisions, a court must determine the best interests of the
children by weighing the factors set forth in Minn. Stat. § 518.17, subd. 1
(2006). We defer to the district court’s
assessment of witness credibility.
The district court also found that appellant may have mental-health problems that have caused him to abuse drugs and alcohol. Similarly, the district court found that appellant’s anger, drug, and alcohol-dependence problems are factors to weigh when considering respondent’s concerns regarding appellant’s contact with the children. Although appellant did not complete a chemical-health or psychological evaluation, the district court considered appellant’s risk of mental-health problems in weighing the best interests of the children. Appellant rejects this characterization of himself. However, we note the record contains evidence of appellant’s drug abuse, domestic violence, and conviction for previous drug-related criminal activity.
In sum, we conclude that the district court did not abuse its discretion in determining the best interests of the children and in awarding custody to respondent.
final issue is whether the district court abused its discretion in denying
appellant’s motion for a new trial. A
new trial may be granted to remedy irregularity in the proceedings of the court
when that irregularity deprives the moving party of a fair trial.
A. Assistance of Counsel
that the district court abused its discretion by denying his motion for a continuance
to enable him to obtain the assistance of counsel. District court judges have the authority to
schedule proceedings and grant continuances.
The district court
“should base its [continuance] decision on facts and circumstances surrounding
We are not
unsympathetic to appellant’s desire to have counsel. We recognize that in any criminal proceeding when
liberty is at stake, there is a constitutional right to counsel and that legal
services and other programs exist to provide counsel. See
Gideon v. Wainwright, 372
Appellant argues that his attorney’s withdrawal shortly before the trial prejudiced his case. In the district court, appellant had been represented by three different attorneys. The dissolution trial was set for March 9, 2005. The record contains “withdrawal of counsel” notices dated February 28, 2005, and March 1, 2005. Appellant had one week to obtain assistance of counsel. Appellant claimed that the new attorney he found withdrew on the morning of trial. Appellant explained that at least one of his attorneys withdrew due to his own failure to pay for his representation.
The district court attributed ongoing delays in the case to appellant. In response to appellant’s request for a continuance so he could obtain assistance of a fourth attorney, the district court expressed the “firm opinion that this case has been intentionally delayed by [appellant]” and determined that it was necessary to proceed because of the case’s on-going delays. And the district court’s findings of facts include a finding that:
Respondent has contributed unnecessarily to the length and cost of this proceeding. Respondent forced Petitioner to undergo a full trial on the issues of his income and custody, but for no credible reason appeared at trial unprepared and without counsel. Respondent failed to obey court orders, comply with discovery, or make timely appearances at hearings.
Although appellant may have struggled with procedural aspects of the trial, appellant has not pointed to any specific issue or factual dispute in which his lack of counsel prejudiced the outcome. Further, appellant contributed to his own situation. At least in part, his lack of representation was apparently caused by failure to pay his attorneys. Appellant claimed that he attempted to secure legal counsel, but did not further detail his attempts to retain counsel. The record demonstrates that appellant also contributed to delay by failing to comply with discovery requests. Because the record indicates that appellant presented no exigent circumstances warranting a continuance, contributed to the withdrawal of counsel, and had otherwise delayed proceedings, we conclude that the district court did not abuse its discretion by failing to grant a continuance.
B. Discovery Issues
contends that his attorney’s failure to conduct discovery and his attorney’s withdrawal
the evening before trial constitute irregularities that warrant a new
trial. Although appellant was
unrepresented at trial, he had assistance from a series of attorneys throughout
the proceedings. The attorneys
ultimately did not conduct discovery, but there is no evidence that their
conduct constituted an irregularity or was so prejudicial as to require a new
trial. In order for an irregularity to
necessitate a new trial, the appellant must also show that the irregularity
resulted in prejudice and he was thus deprived of a fair trial. Boschee
v. Duevel, 530 N.W.2d 834, 840 (
C. New Evidence
claims that a new trial is necessary because of newly-acquired evidence of respondent’s
status as a real estate agent and securities broker and newly-acquired evidence
that respondent has used multiple social security numbers, suggesting the
possibility that respondent has committed fraud. A new trial may be granted when there is
“[m]aterial evidence newly discovered, which with reasonable diligence could
not have been found and produced at the trial . . . .”
Appellant’s claim that respondent has used multiple social security numbers is not in and of itself evidence of fraud. Respondent points out that the incorrect social security number appears only on a document that she neither signed nor had control over. A document containing a different social security number may easily be explained by mistake and does not show that respondent has committed fraud. Thus, the district court did not abuse its discretion in denying appellant’s motion for a new trial on this basis.
Appellant asserts that respondent’s status as a licensed real estate agent and securities broker is evidence of fraud and is newly-acquired evidence. As previously discussed, respondent indicates that she became a licensed real estate agent only after trial, and for the purposes of selling the family home and also that her securities license has expired. Given the district court’s findings that respondent had been out of work for five years and that the parties’ son requires constant care and supervision, it is unclear how these occupational licensures are relevant. Further, appellant does not explain how this evidence would change the trial’s outcome. There is no showing that lack of disclosure of either licensure is fraud. Based on this record, we conclude that the district court did not abuse its discretion in denying appellant’s motion for a new trial on the basis of this claim of newly-acquired evidence.
lists other issues in his brief but neither provides any factual argument nor
legal analysis of such issues. This
court does not consider issues unless so presented. Schoepke
v. Alexander Smith & Sons Carpet Co., 290
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.