This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-95-2239

In Re the Marriage of:

Jayne C. Noble, petitioner,

Appellant,

vs.

Larry G. Noble,

Respondent.

Filed June 18, 1996

Affirmed

Schumacher, Judge

Anoka County District Court

File No. F8945162

Susan M. Lach, Lang, Pauly & Gregerson, Ltd., First Bank Place, 1600 IBM Park Building, 650 Third Avenue South, Minneapolis, MN 55402-4337 (for Appellant)

Elizabeth A. Schading, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN 55433 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Stone, Judge.*

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

SCHUMACHER, Judge

Appellant Jayne C. Noble claims that her awards of child support, maintenance, and attorney fees are erroneously low. Respondent Larry G. Noble claims that the trial court erred by finding him in contempt, not dividing the proceeds of property, and not modifying a temporary order. We affirm.

FACTS

After mother petitioned to dissolve the parties' marriage, a 1994 temporary order required father to deposit with mother's attorney the proceeds of certain property and to maintain current insurance coverage. Father did neither, mother started contempt proceedings, and the parties agreed to consolidate the contempt issues and the trial. The parties later stipulated to some issues and tried others. A 1995 judgment awarded mother custody of the children, set father's maintenance and support obligations, found father in contempt for not complying with the 1994 order, and ordered father to pay attorney fees.

D E C I S I O N

Absent a new trial motion, review is limited to whether the evidence supports the findings and whether the findings support the conclusions of law and the judgment. Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976). Findings are not altered on appeal unless clearly erroneous. Minn. R. Civ. P. 52.01. Also, issues "'such as trial procedure, evidentiary rulings and jury instructions are subject to appellate review only if'" preserved in a new trial motion. Tyroll v. Private Label Chem., Inc., 505 N.W.2d 54, 56 (Minn. 1993) (quoting Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986)). This case does not involve appeal of evidentiary rulings or jury instructions. "Trial procedure" issues involve how a case is tried. Tyroll, 505 N.W.2d at 57. The issues here do not involve the mechanics of how the case was tried.

1. To find father's net monthly income, the trial court averaged father's business income for 1989-94. Mother claims that this is improper because father's income rises annually. See Sefkow v. Sefkow, 372 N.W.2d 37, 42, 48 (Minn. App. 1985) (income averaging improper where obligor's income rose annually), remanded on other grounds, 374 N.W.2d 733 (Minn. 1985). Because father does not regularly receive a bonus, his 1993 bonus should not be used when calculating his net monthly income for maintenance and support purposes. See McCulloch v. McCulloch, 435 N.W.2d 564, 566-67 (Minn. App. 1989) (maintenance); Haasken v. Haasken, 396 N.W.2d 253, 261 (Minn. App. 1986) (support). Absent the 1993 bonus, father's income lacks the upward trend that precludes income averaging under Sefkow. Also, we reject mother's claim that the trial court should have averaged father's income over only four years. See Aaker v. Aaker, 447 N.W.2d 607, 611 (Minn. App. 1989) (affirming six-year income averaging), review denied (Minn. Jan. 12, 1990). Further, because the record includes father's tax returns since 1989, the trial court did "look at" father's tax returns for the past two years as mother claims is required by Minn. Stat. ' 518.551, subd. 5b (1994).

2. Based on credibility-related rulings, the trial court rejected mother's claims that father used his business to pay personal expenses and that she should not be credited with monthly income from her companion. We defer to the trial court's implicit and explicit credibility determinations on these issues. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to trial court credibility determinations); Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) (fact questions presented by affidavit are to be resolved by trial court). Also, we reject as inconsistent with the judgment mother's claim that the finding of her monthly expenses is erroneous because it fails to consider the marital standard of living under Minn. Stat. ' 518.552, subd. 2(c) (1994).

3. Absent an abuse of its "wide discretion," a trial court's maintenance award "is final." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). The issue is basically the recipient's need balanced against the obligor's financial condition. Id. at 39-40. Here, in setting a maintenance award that caused both parties to have monthly deficits, the trial court addressed each factor listed in Minn. Stat. ' 518.552, subd. 2 (1994). The maintenance award is not an abuse of the trial court's "wide discretion." See, e.g., Podany v. Podany, 267 N.W.2d 500, 502-03 (Minn. 1978) (affirming maintenance award giving both parties monthly deficits).

4. Because the trial court set father's support obligation at the guideline amount and we reject mother's challenge to the finding of father's income, we reject mother's challenge to her support award. [1] Apportionment of the children's uninsured medical expenses depends on the parties' relative financial conditions. Minn. Stat. ' 518.171, subd. 1(c) & (d) (Supp. 1995). Here, because both parties have monthly deficits, their ability to contribute to the children's medical expenses is similar and we affirm the trial court's equal apportionment of the children's uninsured medical expenses.

5. A trial court's attorney fee award will not be altered on appeal unless the trial court "clearly abuse[d]" its "broad discretion" and only in "rare cases" will we increase an attorney fee award on appeal. Nemmers v. Nemmers, 409 N.W.2d 225, 228 (Minn. App. 1987). The court "shall" award attorney fees if it finds, among other things, that the payor can pay the fees and "may" award fees against a party who unreasonably contributes to the length or expense of a proceeding. Minn. Stat. ' 518.14, subd. 1 (1994). Father's monthly deficit shows him to be unable to contribute to mother's fees. Also, the trial court found that both parties contributed to the length and expense of the proceeding. The trial court's attorney fee award is not an abuse of its broad discretion. [2]

6. Father challenges the finding that he was in contempt for not complying with the 1994 order. [3] The standard for reviewing contempt orders is abuse of discretion. Minnesota State Bar Ass'n v. Divorce Assistance Ass'n, 311 Minn. 276, 284, 248 N.W.2d 733, 740 (1976). The trial court's rejection of father's claim that he did not comply with the 1994 order because he was unable to do so is consistent with father's admission that he took his business staff to Las Vegas after the order was issued. [4]

7. Father claims that the temporary order is defective under Moylan v. Moylan, 384 N.W.2d 859, 863-64 (Minn. 1986), because it lacks findings on the statutory child support factors. Pursuant to a post-Moylan amendment of the support statute, findings on the statutory factors are needed only if the trial court deviates from the guidelines. Minn. Stat. ' 518.551, subd. 5(i) (Supp. 1995). The order set support at the guideline amount.

8. Father claims that because the parties agreed to divide the marital property equally, the trial court erred in awarding mother the proceeds from the sale of a ring. We disagree. Father gave the ring to mother, surrendering his marital interest therein. See Oehler v. Falstrom, 281 Minn. 561, 563, 160 N.W.2d 403, 405 (1968) (gift requires delivery, acceptance, and donative intent).

9. Father claims that the trial court erred because, from the bench, it allegedly refused to hear his motion to modify the 1994 order. Because the record on appeal lacks a transcript of the relevant hearing, whether the trial court refused to hear father's claim is not reviewable. See Hall v. Hall, 417 N.W.2d 300, 303 (Minn. App. 1988) (record on appeal limited to documents filed with district court where neither party procured a transcript).

Affirmed.


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]  Citing her CPA's affidavit, mother claims that the trial court made an error and set father's support obligation too low. The CPA's affidavit does not explain the error or the source of the numbers used to calculate a higher support obligation.

[2]  The cases mother cites to claim that the disparity in the parties' incomes entitles her to a larger attorney fee award are distinguishable.

[3]  Mother argues that father's claims involving the temporary orders are not before this court. An order need not be appealable to be challenged by notice of review. Kostelnik v. Kostelnik, 367 N.W.2d 665, 669 (Minn. App. 1985), review denied (Minn. July 26, 1985).

[4]  Father also claims that he was unable to challenge the reasonableness of the 1994 order until trial. The trial court acknowledged this argument.