This opinion will be unpublished and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:
Nancy Judd Ehlen, petitioner,
Charles Philip Ehlen,
Stearns County District Court
File No. F703116
Robert W. Due, Katz, Manka, Teplinsky, Due & Sobol,
Mark A. Olson, Olson Law Office,
Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*
In this appeal from a dissolution judgment, appellant challenges the property division under several theories. Because the district court did not err or abuse its discretion in dividing the parties’ property, we affirm.
This case involves the division of a substantial marital estate after a 44-year marriage. The district court appointed a neutral accounting expert, Thomas Harjes, and a neutral real-estate appraiser, Robert Strachota. Appellant Charles Ehlen (husband) and respondent Nancy Judd Ehlen (wife) stipulated to a valuation date of August 31, 2005. The dissolution action was filed in November 2002, and the trial occurred on various days between October 2005 and December 2005.
At trial, Harjes testified that the value of the marital estate was approximately $43,510,540. Harjes, using Strachota’s real estate valuations, testified about the value of the parties’ various properties and investments. Harjes testified about the tax consequences of liquidating the assets and opined that transferring assets, rather than liquidating assets and transferring cash, would avoid some tax consequences and distribute any tax burden resulting from the dissolution more equally.
Husband did not challenge Harjes’s valuations and challenged only one of Strachota’s valuations. Strachota determined that the Frerich Farm, one of the assets of a corporation owned by the parties, should be valued at $2,000,000 or $11,150 per acre, based on its best use, which would be residential development. Husband, who has no plans to develop the property, called a realtor, Steven Hansen, who testified that the value of Frerich Farm as a farm was $3,000 to $3,500 per acre.
Wife testified that the parties
separated in October 2002. Wife
testified that she maintained the parties’ residences and vehicles and managed
the household finances until the separation.
The parties agreed that wife was the record keeper for the parties’ marital
investments until 1993, when wife refused to have any further involvement with
the investments. Beginning in about 1993,
wife spent several months each winter at one of the residences in
Husband, who contended that the parties stopped living together as husband and wife long before October 2002, testified that, in his opinion, the parties separated in 1986, when wife took a full-time job outside the home and was no longer available as a full-time homemaker. Husband gave various other dates as the date of separation and argued that after 1993, when wife refused to organize and keep records of their investments, wife made no contribution to the accumulation of the marital estate. Husband, whose proposal for a property division was presented on the last day of trial, argued that only marital assets accumulated through the early 1990s should be divided equally, and that he should be awarded all property acquired and any increase in existing assets after that time.
The district court found that the parties separated in October 2002 and that wife “made substantial contributions to the acquisition of the marital assets of the parties over the course of the 44-year marriage.” The district court adopted the majority of wife’s proposed findings of fact, conclusions of law and judgment, dividing the value of the assets as of the stipulated valuation date equally. Wife requested some minor clerical corrections to the judgment. The district court issued an amended judgment incorporating those changes. Husband did not oppose the clerical changes, or move for amended findings or a new trial, but filed a direct appeal.
I. Property division
On appeal, husband objects primarily
to the district court’s finding that an equal division of assets was
appropriate, given the undisputed fact that husband’s investment activities
after 1993 account for the bulk of the marital estate. “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 “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.” Minn. Stat. § 518.58,
subd. 1 (2006). When dividing marital
property, the district court may consider many factors, such as the length of
the marriage, sources of income, and the contribution of each party in the
preservation of the marital property.
Findings of Fact
Husband argues that the district
court’s findings regarding wife’s contribution to the acquisition of assets are
clearly erroneous. A district court’s
findings of fact are reviewed for clear error.
Antone, 645 N.W.2d at 100. In order to challenge successfully a district
court’s findings of fact, the party challenging the findings “must show that
despite viewing [the] evidence in the light most favorable to the trial court’s
findings . . . the record still requires the definite and
firm conviction that a mistake was made.”
Vangsness v. Vangsness, 607
N.W.2d 468, 474 (
Husband specifically challenges the district court’s findings that wife made substantial contributions to the acquisition of the parties’ assets after 1993 and that the parties lived as husband and wife until their separation in 2002. Husband testified that, until 1993, wife “made a very significant contribution to the marriage” and that “she was very valuable in helping, keeping track of documents, sort of cataloging them and taking care of the family finances.” There is discrepancy in husband’s and wife’s characterization of their relationship and wife’s contribution to the marital estate after 1993, but the district court credited wife’s testimony, which is sufficient to support the district court’s findings about the date of separation and wife’s continued contribution to the acquisition of assets after 1993. Because the findings are supported by the record, they are not clearly erroneous and will not be reversed on appeal.
Husband asserts a constitutional challenge
to the conclusive presumption contained in Minn. Stat. § 518.58, subd. 1, “that
each spouse made a substantial contribution to the acquisition of income and
property while they were living together as husband and wife.” The district court rejected husband’s
challenge on the merits, but also stated that “[wife] in this case does not
have to take advantage of the statutory presumption because she made an
incalculable contribution to the 44-year marriage as a factual matter.” The court further stated, “[Wife] does not
need to avail herself of the conclusive presumption in this case, since there
is substantial evidence that she did in fact make substantial contributions to
the acquisition of the parties’ assets.”
Because the district court did not rely on the conclusive presumption in
this case, we decline to address husband’s constitutional challenge. See
In re Senty-Haugen, 583 N.W.2d 266,
269 n.3 (
Husband argues that the district
court erred in failing to reduce the value of assets by the amount of tax that
would be incurred on liquidation. A
district court’s decision whether to consider tax consequences in a property
division is reviewed for an abuse of discretion. Maurer
v. Maurer, 623 N.W.2d 604, 608 (
Harjes testified that taxes would only be realized at sale or liquidation, and he proposed a division of assets that would not require the liquidation of assets. The district court adopted Harjes’s approach to dividing the parties’ assets. There is no evidence in the record of either party’s current need or intent to liquidate any asset. The record demonstrates that husband has access to sufficient funds to pay the cash equalizer required by the property division without liquidating any assets. The district court specifically addressed taxes in its detailed findings, carefully explaining how the property division was designed to avoid tax consequences as much as possible and otherwise equalize the tax consequences as much as possible. The district court appropriately considered the issue of tax consequences in fashioning the property division in this case.
Husband argues that “equity dictates that [he] should have, at the very least, been given the right of first choice of assets since it is undisputed that [the assets] were created solely through his hard work and efforts.” The division of assets is reviewed for an abuse of discretion. Sirek, 693 N.W.2d at 898. Husband again ignores evidence in the record of wife’s contribution to the marital estate, but acknowledged at oral argument that there is no authority that a spouse’s contribution to the acquisition of assets must be measured only in how active that spouse was in the actual income-producing activity. And husband acknowledges that there is no authority that a primary breadwinner should have first pick of the assets.
Husband argues that wife was allowed to “cherry pick” assets with the least amount of tax consequences and the highest cash flow. The record reflects that wife requested assets that will require minimal labor and oversight by wife, acknowledging that husband is the more experienced investor and is in the better position to deal more effectively with the business assets that will require more oversight. On appeal, although husband has asserted that wife’s award avoids tax consequences and has higher cash flow, husband, who was awarded many of the assets he requested, has not shown that the overall property division was unequal. At trial, when husband asked if he objected to wife being awarded certain assets, husband responded that he did not know if he objected or not. On this record, we conclude that the district court did not abuse its discretion by awarding wife the properties that required less “hands-on” management.
Husband lists approximately 17
findings of fact related to the property division that he claims are
unsupported by the record and therefore clearly erroneous. Most of the challenged facts are simply
listed in husband’s appellate brief without an explanation or any citation to
the record to demonstrate how or why they are erroneous. Assignment of error in a brief based on “mere
assertion” and not supported by argument or authority is waived unless
prejudicial error is obvious on mere inspection. State
v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (
A district court’s valuation of
property is a finding of fact and will not be set aside unless it is clearly
erroneous on the record as a whole. Maurer, 623 N.W.2d at 606. “Exactitude is not required of the trial
court in the valuation of assets in a dissolution proceeding; it is only
necessary that the value arrived at lies within a reasonable range of figures.” Johnson
v. Johnson, 277 N.W.2d 208, 211 (
The district court found Strachota’s testimony about the value of the farm to be more credible than Hansen’s testimony. Husband asserts that the district court “provided no legal basis for its disqualification of [husband’s expert], who was in an eminently better position to value the property.” But the district court did not “disqualify” husband’s expert. The district court, for reasons stated in the findings, found Strachota’s testimony more credible. Because we defer to the district court’s credibility determinations and because Strachota’s testimony supports the district court’s determination of the value of the farm, the valuation is not clearly erroneous.
II. Nonmarital Claims
Husband argues that the district
court abused its discretion when it refused to allow him to submit evidence
regarding alleged nonmarital claims to the account listed as “Stearns Bank” and
a receivable of Cinco Corporation. Wife
argues that husband has waived this issue on appeal because husband did not
file a motion for amended findings or a new trial. “It has long been the general rule that
matters such as trial procedure, evidentiary rulings and jury instructions are
subject to appellate review only if there has been a motion for a new trial in
which such matters have been assigned as error.” Sauter
v. Wasemiller, 389 N.W.2d 200, 201 (
III. Adoption of Wife’s Proposed Findings
Husband asserts that the district
court improperly adopted wife’s proposed findings of fact, conclusions of law,
and order for judgment. “A district court’s verbatim adoption of a
party’s proposed findings and conclusions of law is not reversible error per
v. Schallinger, 699 N.W.2d 15, 23 (Minn. App. 2005), review denied (
Although the district court’s findings
closely resemble wife’s proposed findings, they are not identical. The proposed findings awarded wife the
marital home, $20,000 in attorney fees, and awarded husband the loans
payable. But the judgment awarded
husband the martial home, denied wife’s request for attorney fees, and divided
the loans payable equally between the parties.
It is therefore apparent that the district court independently
considered the evidence and independently reviewed proposed findings before
adoption. The findings are “detailed,
specific and sufficient enough to enable meaningful review by this court.”
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Husband also argues that if the presumption is constitutional, it must be rebuttable, and he rebutted it. But as discussed above, the statutory presumption is not relevant to this case.
 Husband asks this court to “adopt the federal rule that verbatim adoption of findings and conclusions is per se error.” There is no such federal rule. Federal Rule of Civil Procedure 52(a) is identical in substance to Minn. R. Civ. P. 52.01. See Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn. App. 1987) (noting that although federal courts have firmly disapproved the practice of verbatim adoption of proposed findings and conclusions of law, no case has held that the practice is reversible error per se), review denied (Minn. Aug. 19, 1987).