This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 489A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-95-2013

In Re the Marriage of:

Jane Ann Doyle, petitioner,

Appellant,

vs.

Lance Severin Doyle,

Respondent.

Filed May 21, 1996

Affirmed in part and remanded in part

Huspeni, Judge

Hennepin County District Court

File No. DW 197 286

Laurel E. Learmonth, Primus Law Office, 630 Norwest Midland Bldg., Minneapolis, MN 55401-2350 (for Appellant)

Michael H. Kennedy, Kennedy & Kennedy, P.O. Box 3223, Mankato, MN 56002-3223 (for Respondent)

Considered and decided by Peterson, Presiding Judge, Huspeni, Judge, and Mansur, Judge.*

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

On appeal from an amended judgment of dissolution, appellant Jane Doyle argues the trial court erred by (1) dividing respondent's pension plan, (2) awarding respondent a nonmarital interest in the property and not awarding appellant a nonmarital interest, and (3) not awarding interest on the amount that respondent owes her. We affirm the trial court's valuation and division of respondent's pension plan and the trial court's determination that respondent has a nonmarital interest. We remand in order for the district court to make findings on appellant's nonmarital property interest and for the district court to award interest during the six months following the auction or explain its decision not to do so.

FACTS

Prior to the parties' marriage in 1986, respondent owned approximately twenty acres of land. During the marriage, the parties purchased additional land adjoining the original twenty acres and took out a number of loans against the property. Also during the marriage, appellant participated in a 401(k) plan, and respondent participated in a defined benefit plan.

The parties' marriage was dissolved in December 1995. The trial court found that respondent's nonmarital interest in the property at the time of the marriage was $13,000 ($34,000 value less a $20,996 mortgage), awarded this property to respondent, and ordered him to pay appellant $29,162.71 (one-half of the property's marital equity). The trial court found that the present value of respondent's pension plan was $62,500 and awarded appellant $5,824.68 to equalize the division of the parties' pensions. The court awarded appellant $6,200, which was being held in trust, from the parties' sale of cattle. The court did not award appellant any interest on the amount that respondent owes her.

D E C I S I O N

1. "The valuation and division of pension rights is generally a matter for the trial court's discretion." Taylor v. Taylor, 329 N.W.2d 795, 798 (Minn. 1983). When a pension's valuation is not unduly speculative and when the marital assets are sufficient to divide the pension without causing hardship to either spouse, the court should divide the pension at the time of the dissolution. Id. at 798-99. When the valuation of present benefits will be speculative, the district court may award each of the parties a fixed percentage of the benefit. Kottke v. Kottke, 353 N.W.2d 633, 637 (Minn. App. 1984), review denied (Minn. Dec. 20, 1984).

Appellant argues that the valuation of respondent's pension plan is speculative and, therefore, the trial court erred by dividing this plan at the time of dissolution rather than awarding each of the parties a fixed percentage of the benefit. Appellant bases her argument on the fact that the parties' experts testified to vastly differing values for the plan and because all of them testified to some aspect of choice made by them that was unsupported by any concrete factors. (Appellant cites as an example her expert's alteration of the interest discount rate because another expert had recently done so and it seemed appropriate.) We find no abuse of the trial court's discretion.

Appellant's first expert, using the accrued benefit method, calculated the value of the marital portion of respondent's pension plan to be $111,409. This expert testified that he was working on the cutting edge of the field and that other actuaries would probably not understand his analysis. Using the time rule method proposed by respondent's expert, appellant's expert arrived at a present value of $62,800. Appellant's second expert, a financial economist, calculated the marital value of respondent's pension to be $154,583. This expert testified that he did not look at respondent's pension plan, but rather relied on the factors considered by respondent's actuary. Respondent's expert, using the time rule method, arrived at a plan value of $56,332 to $57,711.

The trial court, using the methodology of respondent's expert and the calculations of appellant's experts, determined the marital value of respondent's pension plan to be $62,500. (When appellant's and respondent's experts applied the methodology adopted by the trial court, they arrived at values within $5,000 of one another.)

Because the pension's valuation was not unduly speculative and because the parties' other assets were sufficient to allow division of the plan without hardship to either party, the trial court appropriately chose the preferred method of dividing the pension plan at the time of dissolution.

2. Appellant argues that the trial court erred by awarding respondent a nonmarital interest in the real property, or, in the alternative, that the trial court erred by not awarding her a nonmarital interest. Whether property is marital or nonmarital is a question of law upon which this court may exercise independent judgment. Campion v. Campion, 385 N.W.2d 1, 4 (Minn. App. 1986). This court, however, will affirm the trial court's findings of fact unless they are clearly erroneous. Freking v. Freking, 479 N.W.2d 736, 739 (Minn. App. 1992). "A party seeking to establish the nonmarital character of an asset must do so by a preponderance of the evidence." Wopata v. Wopata, 498 N.W.2d 478, 484 (Minn. App. 1993). "[N]onmarital property must be kept separate from marital property or, if commingled, must be readily traceable." Id.

Appellant's expert testified that the value of the property owned by respondent prior to the marriage was $34,000; respondent's expert calculated that value to be $40,000. The trial court accepted the valuation of appellant's expert, subtracted the mortgage amount ($20,996), and arrived at a nonmarital interest of $13,000. [1]

Appellant argues that because the parties had withdrawn the nonmarital equity and commingled it with marital assets, a finding of a nonmarital interest in respondent could not be made. Further, appellant argues that because the mortgage value of the property exceeded the property's fair market value at one point, all of the nonmarital equity in the real estate was removed previous to the valuation date. We find no merit in appellant's arguments, nor do we find any case law recognizing that a nonmarital interest in property is extinguished if the mortgage value at one point in time exceeds the fair market value of the property. The trial court did not err by awarding respondent a nonmarital interest in the property; his nonmarital interest is readily traceable.

In the alternative, appellant argues that she, in fact, has a nonmarital interest in the property because she contributed $4,400 from the sale of her house to improvements on the property. The trial court did not address the issue of appellant's nonmarital interest. When a trial court fails to address an issue and that issue is not brought to the trial court's attention in a posttrial motion, a reviewing court will not address the issue. Pacific Mut. Door Co. v. James, 465 N.W.2d 696, 701 (Minn. App. 1991). Here, although appellant made a motion for amended findings, appellant argued in that motion that the nonmarital assets claimed by respondent were lost because they were commingled with marital assets. On appeal, appellant is attempting to change her position, alleging that she has a nonmarital interest. See Security Bank of Pine Island v. Holst, 298 Minn. 563, 564, 215 N.W.2d 61, 62 (1974) (elementary that party cannot shift position on appeal). Thus, we decline to review the issue of appellant's nonmarital interest.

3. The trial court awarded respondent the homestead property and ordered him to pay appellant $34,987.39 to equalize the division of the parties' pensions and marital real property. The court stated:

In the event that the proceeds from the auction do not satisfy the entire amounts owed to [appellant] * * *, the unsatisfied portion shall be reduced to judgment six (6) months following the auction. Said judgment may attach to the real property awarded to Respondent * * * and [appellant] may foreclose on such lien if Respondent does not maintain installment payments of $1,000.00 per month on the judgment.

We conclude that the similarity of this provision to a provision described in Thomas v. Thomas, 407 N.W.2d 124 (Minn. App. 1987), requires a remand. In Thomas, this court stated:

Postponing the property distribution by allowing a year until the first payment and setting a three-year, interest-free payment schedule requires justification in the accounting of the court's division of the marital assets * * *. The court is required to make particular and specific findings of fact. On remand, if the trial court does not require [the respondent] to pay interest on this settlement, it must make explicit findings of fact explaining its decision.

Id. at 127 (citations omitted).

We remand in order for the district court to award interest on any property where payment is delayed or to explain its decision not to do so.

Our remand, however, is limited to the six months following the auction during which time appellant would be delayed from receiving any money still owing to her and would not be entitled to a judgment. In accordance with the trial court order, any money that respondent might owe appellant can be reduced to judgment six months following the auction. Pursuant to Minn. Stat. § 549.09, subd. 2 (1994), interest on a judgment will accrue on the unpaid balance until judgment is paid. See Riley v. Riley, 385 N.W.2d 883, 888 (Minn. App. 1986) (dissolution judgment awarding money to a party accrues interest on unpaid balance from the time that the judgment says payment is due until it is paid).

4. The trial court awarded the entire $6,200 in trust to appellant. Respondent asks this court, in the event of a remand, to permit the trial court to reconsider its division of the trust.

Respondent, however, "did not file a notice of review to preserve this issue as required by Minn. R. Civ. App. P. 106." Ford v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 294 N.W.2d 844, 845 (Minn. 1980); see also Watson v. Watson, 379 N.W.2d 588, 591 (Minn. App. 1985) (respondent's request for a reduction in a marital property award was not properly before the court because respondent failed to file a notice of review). Thus, we decline to review this issue.

Affirmed in part and remanded in part.


Footnotes

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

[1] Respondent does not allege that the trial court erred in failing to determine his nonmarital interest under the formula found in Schmitz v. Schmitz, 309 N.W.2d 748, 750 (Minn. 1981).