This opinion will be unpublished and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:
Lonn J. Viele, petitioner,
Patti Ann Viele,
Affirmed in part, reversed in part, and remanded
St. Louis County District Court
File No. 69DU-F7-04-600777
Cheryl M. Prince, Kenneth A. Kimber, Hanft Fride, 130 West Superior Street, Suite 1000, Duluth, MN 55802 (for appellant)
Larry M. Nord, James D. Watts, Orman, Nord, Spott & Hurd, 1301 Miller Trunk Highway, Suite 400, Duluth, MN 55811 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Stoneburner, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
In this dissolution appeal, appellant-husband argues that the district court erred in (1) awarding wife sole physical custody of the children and awarding husband less parenting time than he had during the dissolution proceedings; (2) imputing income to husband without evidentiary support and calculating his income; (3) determining that the parties’ home and land are entirely marital property; (4) awarding occupancy of the home to wife without compensating husband; (5) calculating the amount and duration of spousal maintenance; (6) failing to credit husband’s payments of certain debts against his child-support and maintenance arrears; and (7) awarding wife conduct-based attorney fees without making adequate supporting findings. We affirm in part, reverse in part, and remand.
Appellant-husband Lonn Viele and respondent-wife Patti Viele were married in October 1990. They have four children, two of whom are minors. Husband initiated dissolution proceedings in August 2004. The district court’s February 11, 2005 order for temporary relief awarded wife occupancy of the home and temporary primary physical custody of the children. Husband was awarded parenting time every other weekend and every Tuesday and Thursday evening, and he was ordered to pay temporary child support and spousal maintenance.
After a five-day trial in January and May 2006, the district court issued its August 25, 2006 findings of fact, conclusions of law, order for judgment, and judgment and decree. Husband moved for amended findings or a new trial, and wife moved for amended findings. In its November 30, 2006 order, the district court denied husband’s motions and granted wife’s motion in part by correcting two errors in the judgment and decree. This appeal from the August 25 judgment and the November 30 order followed.
D E C I S I O N
Husband argues that the district
court erred in awarding sole physical custody of the children to wife. Our review of custody decisions is limited to
determining 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 (
record might support findings other than those made by the [district] court
does not show that the [district] court’s findings are defective.”
Husband challenges a number of the findings the district court made when considering the children’s best interests. Husband argues that the district court erred by ignoring the evidence that both parties were equally responsible for the primary care of the children and that husband had become the primary caretaker as a result of wife’s gambling addiction. See Minn. Stat. § 518.17, subd. 1(a)(3) (including child’s primary caretaker as relevant best-interests factor). The district court found that wife was “the primary caretaker for the younger children up to the time it became obvious a divorce was imminent, when [husband] displayed an unusually active interest in the children.”
The district court found that this best-interests factor favored wife. Its findings regarding this factor are supported by the evidence. The guardian ad litem (GAL) testified that, as to the older two children, wife was “clearly” the primary parent. The GAL also testified that, as to the younger two children, husband has “been more active than he has in the past” but that it was still not “50/50” since wife “still did the bulk of the work.” In light of the record support, this best-interests finding is not clearly erroneous.
Husband maintains that the district court erred in minimizing the negative effects of wife’s gambling addiction and in finding that husband’s alcohol consumption is of concern when that finding is without evidentiary support. See Minn. Stat. § 518.17, subd. 1(a)(9) (including physical and mental health of parties as best-interests consideration). The district court found that the physical and mental health of the parties was a neutral best-interests factor that favors neither party. This finding has support in the record. The GAL testified that husband admitted that, when the children were younger, “he was probably drinking too much.” And the GAL’s reports to the district court state that one of the older children reported that husband “has had an alcohol problem.” Thus, despite husband’s argument to the contrary, the record supports the district court’s finding that husband’s drinking is a concern. Wife’s gambling problem was addressed at length in these proceedings. But the GAL, while acknowledging wife’s gambling addiction and significant debt, did not specifically refer to wife’s gambling as a concern and observed that wife is attending Gamblers Anonymous. Therefore, the district court’s finding on this factor is not clearly erroneous.
Husband next contends that wife discouraged the children from having contact with him, but he cites no support in the record for this assertion. See Minn. Stat. § 518.17, subd. 1(a)(13) (including disposition of parents to encourage and permit contact with other parent as relevant best-interests consideration). The district court determined that this best-interests factor favored wife, observing that at times husband refused to follow the court-ordered parenting-time schedule. The GAL’s report states that both “parties encourage contact with the other parent.” But in light of the district court’s finding that husband was not abiding by the court-ordered schedule, the finding that this best-interests factor favors wife is not clearly erroneous.
Husband persuasively argues that, because the children’s relationships with the paternal relatives are much closer than they are with the maternal relatives, the district court erred in finding that the children have “equivalent” relationships with both maternal and paternal relatives. See Minn. Stat. § 518.17, subd. 1(a)(5) (including among best-interests factors the interaction and interrelationship of child with others who may significantly affect child’s best interests). The GAL testified regarding the close relationship the children have with husband’s parents who lived next door and acknowledged that the children did not have that same relationship with wife’s parents. The GAL also testified that the children were not “particularly fond” of either party’s significant other. But since all of the other best-interests factors were neutral or favored wife, a finding that this factor favors husband would not change the district court’s overall best-interests determination. For example, the district court found that the children’s adjustment to home, school, and community, Minn. Stat. § 518.17, subd. 1(a)(6), and the capacity and disposition of the parties to give the children love, guidance, and affection, Minn. Stat. § 518.17, subd. 1(a)(10), both favored wife; husband does not challenge these findings.
Finally, husband contends that the district court erred by ignoring the wishes of the children. See Minn. Stat. § 518.17, subd. 1(a)(2) (including reasonable preference of child of sufficient age as relevant factor when determining child’s best interests). Citing Steinke v. Steinke, 428 N.W.2d 579, 583-84 (Minn. App. 1988), husband argues that, if the district court’s custody determination contradicts the wishes of a child, the district court must give sufficient reason for ignoring those wishes. But the district court made findings regarding the children’s wishes, and it provided specific reasons for disregarding them. Specifically, the district court was concerned that “the children had been coached by [husband] regarding their comments to the [GAL]” as to their preferences. The district court observed: “The children want to remain in the family home” and that “there is no question that both children would like to have free and unfettered access as they wish to the other parent.” But the district court concluded that the parties “are without any hope of peacefully participating in [a joint-custody] arrangement.” See Minn. Stat. § 518.17, subd. 2 (2006) (providing that in addition to 13 best-interests factors, district court shall consider other relevant factors when joint custody is sought, including ability of parents to cooperate and resolve disputes regarding the children).
The district court found that “[t]he parties simply do not have the capacity to cooperate to the degree necessary for purposes of having a joint physical custody arrangement.” This finding is supported by the GAL’s testimony that, after meeting with the parties a week before trial, he “was a little bit surprised that they haven’t reached a level yet of a little bit more cooperation” and “was a little bit concerned that there’s not a lot of discussion between the parties with regard to the kids.” The GAL testified that the parties “have the ability to cooperate” but stated, “I just don’t know that they’ve demonstrated it yet.” The GAL recommended joint physical custody, but when specifically asked whether the parties had the ability to cooperate and come up with a coparenting schedule, the GAL testified, “I don’t really believe that they have the ability to do that right now.”
Therefore, even if the district court had balanced the best-interests factors as husband proposes, the district court still would not have been required to order a joint-custody arrangement. See Vangsness,607 N.W.2d at 477 (stating that law leaves little room for appellate court to question district court’s balancing of best-interests factors). In the district court’s analysis, the best-interests factors that favored a joint-custody arrangement were outweighed by other relevant factors, including the parties’ inability to cooperate. The district court’s best-interests findings are not clearly erroneous. They adequately address each statutory factor and demonstrate that the district court’s determination that awarding wife sole physical custody was in the best interests of the children was not an abuse of discretion.
also challenges the district court’s decision to award him less parenting time
than he was awarded under the temporary order.
See Minn. Stat. § 518.175,
subd. 1(a) (2006) (“[T]he court shall, upon the request of either parent,
grant such parenting time on behalf of the child and a parent as will enable
the child and the parent to maintain a child to parent relationship that will
be in the best interests of the child.”); Olson
v. Olson, 534 N.W.2d 547, 550 (
According to husband, during the dissolution proceedings, he was spending more time with the children than the temporary order provided. Husband claims this was by mutual agreement of the parties, but the district court found that husband’s actions were in violation of the temporary order. The GAL testified that the children need to spend more time with husband and that they were not going to be very happy with a visitation schedule of one weeknight and alternating weekends. But the district court’s parenting-time schedule of one weekday overnight and alternating weekends is consistent with wife’s request. Wife testified that, instead of husband having the children every Tuesday and Thursday night, she would prefer that he have one overnight visit each week. According to wife, under the temporary order, the children were getting home too late on the weeknights. But with one overnight visit, she “wouldn’t have to deal with trying to get [the children] up in the morning” after they stayed up too late. On this record, husband fails to show that the district court’s custody and parenting-time decisions were an abuse of discretion.
Husband challenges the district court’s spousal-maintenance
and child-support determinations, arguing that the district court abused its
discretion by imputing income to him without evidentiary support and erred in
calculating his income. “Income may be
imputed to or estimated for a child-support obligor either because the obligor
is voluntarily unemployed or underemployed, or because it is impracticable to
determine the obligor’s actual income.” Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 240 (Minn. App. 2003), review denied (
Whether to impute income to child-support and maintenance obligors is discretionary with the district court. See Murphy v. Murphy, 574 N.W.2d 77, 82-83 (Minn. App. 1998) (support); Walker v. Walker, 553 N.W.2d 90, 97 (Minn. App. 1996) (maintenance). We review the amount of income attributed to an obligor for clear error. See Eisenschenk, 668 N.W.2d at 243 (concluding that given lack of credible financial information and attempt to stonewall meaningful investigation of financial status, amount of income attributed to obligor not clearly erroneous); see also Laumann v. Laumann, 400 N.W.2d 355, 359 (Minn. App. 1987) (holding that failure to award wife permanent spousal maintenance was abuse of discretion when district court’s finding regarding wife’s income was unduly speculative and contrary to evidence and therefore clearly erroneous), review denied (Minn. Nov. 24, 1987).
The record contains evidence that husband receives cash payments from his parents’ business, Viele Contracting, Inc. Wife’s sister testified that wife and other employees received cash payments at times from Viele Contracting. Wife and a former employee also testified that employees were paid in cash for their overtime hours. According to wife’s sister, wife was paid in cash by husband’s mother so that the parties’ income did not exceed an amount that would preclude them from receiving reduced school-lunch rates. And wife testified that the parties kept their reported income low so that they qualified for MinnesotaCare. Husband’s mother also testified that Viele Contracting provides husband’s health insurance at no cost to him, pays $957 monthly for husband’s truck, provides insurance for the vehicle, and pays for all gas, oil, and repairs. These payments were in addition to husband’s reported annual salary, which ranged from $25,600 to $36,000 during the period from 2002 to 2005, and his unemployment benefits, which he receives during the winter months.
The district court found that husband’s salary and unemployment benefits result in a monthly net income of $2,200 and that husband’s monthly net income from all sources is $4,500. Husband claims that the income figure of $2,200 is “absolutely impossible.” But he relies only on his 2005 income. Record evidence establishes that husband’s average gross monthly income during 2002 through 2005 is higher than the $2,658 husband calculates. And husband does not explain how the statutory deductions affect his calculation of net income, arguing only that the net income “would be much less.” Husband fails to establish that the district court’s calculation of husband’s monthly net income from salary and unemployment benefits is clearly erroneous.
When calculating husband’s
income, the district court also considered the $957 monthly vehicle payments that
Viele Contracting makes on husband’s behalf, as well as the vehicle’s
insurance, gas, oil, and repairs, which the district court estimated to be $280
per month. Although husband challenges the
district court’s inclusion of the entire value of the vehicle payments in the
calculation of his income, he misstates the law on this point. The district court may impute as income any
in-kind payments or expense reimbursements that reduce living expenses.
Husband next argues that the district court clearly erred when it determined his total income because the district court’s findings were based only on speculation. The district court did not explain its calculation of the additional $2,300 in monthly income that it imputed to husband, and we cannot determine from the record before us how the district court derived that particular amount. The payments Viele Contracting makes on husband’s behalf associated with his vehicle account for the district court imputing approximately $1,230 in monthly income. But these payments do not account for the remaining $1,070 of imputed income. The district court found that husband “also receives cash in various amounts for performing extra services for the company and for himself individually,” but the district court made no specific findings regarding the amount or regularity of this cash income.
The district court found that
husband’s “actual net earnings are difficult, if not impossible, to
establish.” And in light of the district
court’s determination that husband and his family were avoiding disclosure of
financial information, it would not be an abuse of discretion for the district
court to impute a certain amount of cash income to husband. See
Fulmer v. Fulmer, 594 N.W.2d 210, 213 (
Indeed, imputing a certain amount of cash income to husband is justified by wife’s testimony, if credited by the district court, that, in addition to husband’s salary, he received “lots” of other money from Viele Contracting; was often paid in cash for certain jobs, even during the winter months; and “anytime that he didn’t have money, he’d just go to the envelope [containing Viele Contracting’s cash] and help himself, because he was the boss.” But the district court failed to explain what evidence it relied on in calculating the exact amount of husband’s imputed income. Because the district court’s calculation of husband’s income is not adequately explained, we reverse and remand for the district court to make specific findings regarding husband’s income, including the basis for any amount imputed to husband, and to determine whether husband’s spousal-maintenance and child-support obligations should be altered due to a change in the calculation of husband’s income.
Husband also argues that the district court erred by determining
that the parties’ home and land are entirely marital property. In a dissolution proceeding, the
district court has broad discretion in dividing marital property, and we will
not reverse this determination absent an abuse of that discretion. Gottsacker
v. Gottsacker, 664 N.W.2d 848, 852 (
All property acquired
during a marriage is presumed to be marital property. Minn. Stat. § 518.003, subd. 3b
(2006). A party may overcome this
presumption with a showing that the property is nonmarital.
Husband contends that, because the land was a gift from his parents and construction of the house was 90 percent complete when he and wife married, a significant portion of the property value is nonmarital property. Husband testified that the total value of the land and home at the time of the marriage was $100,000. Husband also claims that he and his family supplied virtually all the material and labor when building the home. But contrary to husband’s contention, wife and wife’s sister testified that wife’s family contributed substantially to the construction of the home. Wife also testified that, when the home was being constructed, husband and his family purchased all of the materials and wife used the proceeds from personal-injury settlements to furnish the home. Thus, the district court was not required to find that the entire $100,000 value, which was based solely on husband’s estimation, represented husband’s nonmarital interest in this property.
But the district court found
that the land was a gift to husband and wife prior to the marriage, despite all
evidence to the contrary, including the deed and wife’s testimony. A fact-finder is not required to accept
uncontradicted testimony “if the surrounding facts and circumstances afford
reasonable grounds for doubting its credibility.” Varner
v. Varner, 400 N.W.2d 117, 121 (
In determining that the home and property were entirely marital property, the district court also found that “the parties produced no evidence as to the value of the property . . . except for their personal opinions.” But that finding is clearly erroneous. Husband introduced property-tax records that indicated the value of the property, with and without improvements, for a period from before the marriage until the year of the dissolution proceedings. Husband testified that the property-tax statements, which indicate the property itself had a $500 market value in 1986, did not accurately reflect the value of the property when they were building the home, and he opined that the value was much higher. But there is no reason to believe that the value of the land was any lower than the value reported on the property-tax records. That evidence was uncontroverted by wife, and the district court abused its discretion in disregarding this evidence entirely.
Contrary to the district court’s finding, husband presented evidence in addition to his personal opinion regarding the value of the land. That evidence establishes that the value of the land without improvements at the time of the dissolution was $24,000. Because this uncontroverted evidence establishes the value of husband’s nonmarital claim to the land, we direct the district court on remand to make a just and equitable division of the marital property that takes into account husband’s nonmarital interest in the land.
also contends that the district court erred in awarding occupancy of the home
to wife without immediate compensation to husband. The district court has the discretion to
award either party the right of occupancy of the home, and that award may be in
addition to the amount awarded in the division of marital property.
Husband maintains that the district court erred in its calculation of the amount and duration of the spousal-maintenance award. Specifically, husband argues that the district court erred in its findings regarding his ability to meet his needs while satisfying his maintenance obligation, Minn. Stat. § 518.552, subd. 2(g) (2006), and wife’s depreciation of marital assets, Minn. Stat. § 518.552, subd. 2(h) (2006), which are among the eight factors that the district court must consider when setting a maintenance obligation, Minn. Stat. § 518.552, subd. 2 (2006). Although husband claims that the district court ignored the detrimental effects of wife’s gambling addiction, the record establishes that she went through bankruptcy proceedings. Moreover, husband fails to explain what effect, if any, wife’s gambling debt has on the district court’s determination regarding maintenance. But because we are reversing and remanding for recalculation of husband’s income and a reevaluation of the property division, the district court on remand must determine whether husband’s maintenance obligation should be modified.
argues that, when calculating husband’s arrears in his temporary-child‑support
and maintenance obligations, the district court erred by failing to consider the
“over $4,000” in bills that husband has paid during the dissolution proceedings. “Arrears are amounts that accrue pursuant to
an obligor’s failure to comply with a support order.”
Husband also challenges the district court’s award of attorney fees to wife based on its finding that husband was obstructive in the legal process, arguing that the district court erred by failing to make the findings required under Minn. Stat. § 518.14, subd. 1 (2006). A district court can award conduct-based attorney fees against a party who “unreasonably contributes to the length or expense of the proceeding.” Minn. Stat. § 518.14, subd. 1. An award of attorney fees under section 518.14, subdivision 1, “rests almost entirely within the discretion of the [district] court and will not be disturbed absent a clear abuse of discretion.” Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn.App.1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).
The district court found that husband and his family were involved in “a concerted effort to avoid disclosure” of the financial information regarding the family’s closely held business. For that reason, the district court granted wife a lengthy continuance in the middle of the trial to conduct an additional investigation into the company’s finances after learning that a valuation had been performed but had not been disclosed. In the judgment and decree, the district court found that wife “incurred approximately $45,000 in fees and costs in bringing this matter to trial” and that husband “has made this proceeding protracted and difficult beyond that which is inherent in such matters.” The district court also found that husband “has failed to cooperate with his own attorney and the Court on discovery matters, has tried to conceal financial and business information, and has been generally obstructive of the legal process.”
Thus, contrary to husband’s assertion, the district court made specific findings regarding the actions that justified the award of conduct-based fees. Those actions caused the trial to be continued from January to May and added to wife’s expenses. Because the award was based on husband’s conduct, the district court was not required to address the factors set forth in Minn. Stat. § 518.14, subd. 1(1)-(3), regarding wife’s financial need and husband’s ability to pay. Husband fails to establish that the award of $22,500, which represents only half of the fees wife incurred, was an abuse of discretion.
In sum, we affirm the district court’s custody and parenting-time decisions, the calculation of husband’s arrears, and the award of occupancy of the home and attorney fees to wife. However, we reverse the district court’s findings regarding husband’s income and his nonmarital interest in the land and remand for recalculation of husband’s income and his child-support and spousal-maintenance obligations and for a just and equitable division of the marital property that takes into account husband’s nonmarital interest in the land.
Affirmed in part, reversed in part, and remanded.