This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






In re the Marriage of:

Jennifer Ann Puetz, petitioner,





John Thomas Puetz,




Filed September 11, 2007


Worke, Judge


Hennepin County District Court

File No. 27-FA-296235


Jennifer Ann Puetz, 7340 Green Ridge Drive, Eden Prairie, MN 55346 (pro se respondent)


James C. Whelpley, Twin City Attorneys, P.A., 2151 North Hamline Avenue, Suite 202, Roseville, MN 55113 (for appellant)


            Considered and decided by Worke, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            In this dissolution appeal, appellant-husband argues that (1) he was denied due process and a fair trial because he was not provided with court-appointed counsel when he was incompetent and confused over the role of the guardian ad litem, and (2) the property division was inequitable.  We affirm.


Due Process

            Due process requires “notice, a timely opportunity for a hearing, the right to be represented by counsel, an opportunity to present evidence and argument, the right to an impartial decisionmaker, and the right to a reasonable decision based solely on the record.”  In re Marriage of Sammons, 642 N.W.2d 450, 457 (Minn. App. 2002).  However, Minnesota has not recognized a “statutory or constitutional right to counsel in dissolution proceedings.”  State ex rel. Ondracek v. Blohm, 363 N.W.2d 113, 115 (Minn. App. 1985).  In matters involving an incompetent party, the district court should appoint a guardian ad litem to protect that party’s interests at trial and subsequent proceedings.  Schultz v. Oldenburg, 202 Minn. 237, 244-45, 277 N.W. 918, 922 (1938).

            After respondent Jennifer Ann Puetz filed for divorce, appellant John Thomas Puetz was injured by a self-inflicted gunshot wound to the stomach.  In response to appellant’s “extremely serious mental health issues,” the district court appointed a guardian ad litem to “represent the best interests of [appellant].”  (Emphasis added.)  In the order appointing the guardian ad litem, the district court provided that the guardian ad litem’s role “shall be to represent the interests of [appellant] in any financial agreement and to assist the parties with parenting time issues.”  Throughout the proceedings, the district court advised appellant that the guardian ad litem was not his attorney and that the guardian was there to protect his best interests, “not necessarily to advocate for what he wants.”  Appellant was again reminded of the guardian ad litem’s role prior to proceeding on the morning of trial.  Finally, at the hearing on the new-trial motion, the guardian ad litem testified that she was very clear with appellant that she was representing his best interests and “what was best for him might not be the same thing as what he wanted.”  The guardian ad litem testified that “we talked a number of times about the fact that [she] was not [his] attorney, that he could seek an attorney[,] [but] [h]e was concerned about depleting more of the assets.”  The guardian ad litem stated that she believed she was “very clear” with appellant regarding her role and that she was not his attorney.

            Because Minnesota has no statutory or constitutional right to counsel in a dissolution proceeding, and the record shows that appellant was made aware of the role of the guardian ad litem and the fact that he could seek legal representation if he so desired, appellant was not deprived of his due-process rights.

Property Division

            Appellant also argues that the property division was inequitable and that the district court erred in the characterization of marital and nonmarital 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 law.”  Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn. App. 2005).  A district court abuses its discretion regarding a property division when its findings of fact are “against logic and the facts on [the] record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). 

Whether property is marital or nonmarital is a question of law, but a reviewing court must defer to the [district] court’s underlying findings of fact.  However, if we are left with the definite and firm conviction that a mistake has been made, we may find the [district] court’s decision to be clearly erroneous, notwithstanding the existence of evidence to support such findings. 


Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997) (quotation and citation omitted). 

            Appellant first argues that there is inadequate support in the record for the district court’s valuation of the homestead.  The district court awarded the parties’ homestead to respondent, finding that it had a fair market value of $230,000.  The district court also gave respondent a credit of $3,839 for closing costs that she would incur on the refinancing she was going through at the time of trial.  The district court noted that while it was not customary to subtract closing costs in assessing the fair market value, respondent was refinancing so she and the minor children could afford to stay in the homestead.  This value and the amount of closing costs are supported by the record and the testimony of the realtor who had attempted to sell the home.  The district court then deducted respondent’s nonmarital interest in the home, which the district court found was $93,931 following a Schmitz calculation, and deducted the existing encumbrance.   The resulting marital equity in the home was $40,281, and the homestead and marital equity were awarded to respondent, subject to a lien in favor of appellant for one-half the difference in any sale price over $226,161.  Appellant’s lien was to expire on December 31, 2007. 

            Appellant does not object to the lien amount, but rather argues that the lien expiration date and the absence of any other clarification concerning the viability of the lien make it potentially unenforceable and worthless.  But appellant was unemployed during the pendency of the proceedings and would be unemployed for the foreseeable future.  He had not been paying any support for the parties’ minor children.  Respondent had been servicing the joint debt obligations.  Appellant made no financial contributions to the homestead since approximately the time of the parties’ separation, whereas, respondent had been making financial contributions and would continue to do so in the future.  The expiration date of the lien, when read in the context of the entire judgment and decree, was reasonable and equitable in light of the parties’ financial circumstances and appellant’s employment and mental-health status at the time of trial.  While appellant correctly argues that respondent could just wait until the lien expires to sell the home, there is no evidence to support this claim. 

            Appellant next argues that the district court erred in characterizing the Edward Jones money-market account as nonmarital.  The district court found that respondent came into the marriage with an Edward Jones money-market account with a nonmarital balance of $19,061 and “[t]hat due to [appellant’s] incapacitation during the entire 12 months the parties have been separated up to trial, [respondent] was forced to deplete this entire account to pay marital expenses, support the children, preserve assets, and cover shortages in day care.”  Therefore, the district court found that for purposes of fairness and equity, it would consider the depleted nonmarital account as an advance on appellant’s share of the marital assets. 

            Appellant contends that due to the absence of meaningful discovery prior to trial, he was unable to determine how the money from this account was spent.  Respondent presented evidence that the $19,000 was nonmarital—the balance of the account at the time of the marriage was $8,013.79, and she later deposited a $10,000 nonmarital check from her grandmother.  Additionally, respondent presented significant evidence regarding exactly what the money was used for and they were all marital expenditures, such as mortgage payments, taxes, daycare, and home-remodeling.  Appellant also argues that this was obviously an award of retroactive child support.  However, it appears that the district court was merely attempting to make respondent whole considering she was forced to use nonmarital funds to pay marital expenses.  The district court did not abuse its discretion in determining that the Edward Jones money market account was nonmarital and that it was depleted to pay for marital expenses during the parties’ separation.  It was also within the district court’s discretion to treat the depleted amount of the account as an advance on appellant’s share of the marital assets. 

            Finally, appellant argues that the district court abused its discretion in including on the balance sheet the child-support arrears owed to him by his first wife, and a credit to respondent for one year of child support and daycare during the parties’ separation.  The district court has broad discretion in awarding child support.  Taylor v. Taylor, 329 N.W.2d 795, 797 (Minn. 1983).  Here, appellant paid no support to respondent since their separation.  Additionally, the district court reserved the issue of child support until appellant was finished with treatment and became employed again.  In an attempt to equalize the parties financially regarding the support, the district court gave respondent a $12,000 credit for one year of estimated child-support and daycare expenses.  Further, the parties spent a significant amount of marital money on appellant’s two children from his first marriage in light of the fact that appellant’s first wife was not paying the court-ordered child support.  Because a significant amount of marital funds were spent on appellant’s first two children in the absence of court-ordered child support from appellant’s first wife, the district court considered the arrears to be marital and gave appellant credit for the arrears.  Because the district court has broad discretion in awarding child support, as well as broad discretion in the division of property, and the findings of fact are not against logic or the facts on record, there was no abuse of discretion.