This opinion will be unpublished and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

C8-95-2261

In Re the Marriage of:

Charles M. Bergerson, petitioner,

Respondent,

vs.

Nancy A. Bergerson,

Appellant.

Filed June 4, 1996

Affirmed

Toussaint, Chief Judge

Olmsted County District Court

File No. F3-92-3714

Steven C. Youngquist, East Center Street Professional Building, 307 East Center Street, Rochester, MN 55904 (for Respondent)

David W. VanDerHeyden, Suite 218 Marketplace Center, P.O. Box 6816, Rochester, MN 55903-6816 (for Appellant)

Considered and decided by Willis, Presiding Judge, Toussaint, Chief Judge, and Crippen, Judge.

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

TOUSSAINT, Chief Judge

Nancy A. Bergerson appeals the property division and the denial of attorney fees in the parties' marital dissolution action. Appellant also seeks review of a posttrial order denying her motion to reopen the entire property division, based on claimed misrepresentations by respondent Charles M. Bergerson. We affirm.

F A C T S

Respondent Charles M. Bergerson and Nancy A. Bergerson were married in 1968 and have three children, all of whom were adults at the time of the December 1993 dissolution trial. Respondent is the owner of an insurance agency and appellant works part-time as a floral designer. In 1993, respondent's average gross monthly income was $3,136, and appellant's average gross monthly income was $1,125.

The original decree awarded appellant $148,193 in marital assets, including the parties' interests in the homestead and the value of certain savings accounts that appellant closed out. The decree awarded respondent a total of $133,101 in marital assets, including the insurance agency. Appellant was awarded $800 per month in permanent spousal maintenance. The trial court did not award attorney fees to either party.

The trial court: (1) reopened the property division in the original decree on the issues of respondent's ownership of a boat and an undisclosed $10,000 certificate of deposit; (2) awarded respondent the equity in the boat and compensated appellant by awarding her the surrender value of a life insurance policy that had been omitted from the original property division; (3) accepted respondent's testimony that the $10,000 certificate of deposit was cashed out prior to the parties' separation and was used to pay taxes and to buy annuity policies for the parties; and (4) denied appellant's motion to reopen the entire property division. Appellant challenges the trial court's determinations.

D E C I S I O N

I.

A trial court has broad discretion over the division of marital property and it will not be overturned on appeal except for a clear abuse of discretion. Bogen v. Bogen, 261 N.W.2d 606, 609 (Minn. 1977). We must affirm the trial court's division of property if it had an acceptable basis in fact and principle. Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984).

Appellant challenges the trial court's inclusion of the value of two bank accounts, totaling $32,090, in appellant's property award. After the parties separated, appellant closed out the accounts and disposed of the proceeds without respondent's knowledge or consent. Appellant contends the trial court abused its discretion in imputing the value of the accounts to her, because the record does not show that her expenditure of the assets was frivolous or unjustified.

The trial court may impute the value of an asset to the party who disposed of the asset in contemplation of commencing or during the pendency of the dissolution, if the claiming party shows that the asset was disposed of without the consent of the claiming party and that the assets were not used in the usual course of business or for the necessities of life. Minn. Stat. 518.58, subd. 1a (1994). Appellant used $3,200 of the proceeds from the bank accounts to pay attorney fees. The trial court properly imputed these funds to appellant. See Thomas v. Thomas, 407 N.W.2d 124, 128 (Minn. App. 1987) (error to allow one party to deplete marital funds to pay attorney fees without compensating the other party in the property distribution). Appellant gave $4,500 of the funds to the parties' adult children. The trial court properly imputed these funds to appellant, because they were not disposed of in the usual course of business or for the necessities of life.

The trial court did not credit appellant's testimony that the entire balance of the funds were used for necessary living expenses, noting respondent's contributions to appellant's expenses and appellant's income from employment. See General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987) (appellate court must defer to the trial court's assessment of credibility of witnesses). Moreover, the trial court awarded appellant a greater share of the marital assets, in part based on appellant's possible expenditure of some of the bank account funds for living expenses above her earnings and respondent's contributions. The overall property division was equitable and within the bounds of the trial court's broad discretion.

Appellant also contends the trial court abused its discretion in rejecting a 1993 appraisal showing that the homestead had a fair market value of $137,000. The trial court: (1) valued the homestead at $167,500, based on a 1988 appraisal showing a value of $173,000; (2) calculated a decrease in value since 1988 due to neglect and deferred maintenance; and found that the 1993 appraisal erroneously states that the roof of the homestead leaks and fails to take into consideration the additional square footage of the parties' home relative to the comparables, whereas the comparables in the 1988 appraisal were much closer to the parties' home in terms of the ages of the homes and their relative sizes. The trial court's valuation of the homestead is within the range of the expert testimony and is supported by the record. See Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975) (trial court's finding of fact relative to the issue of valuation will not be set aside unless clearly erroneous).

II.

The allowance of attorney fees rests almost entirely in the discretion of the trial court. Solon v. Solon, 255 N.W.2d 393, 397 (Minn. 1977). Appellant argues the trial court abused its discretion in refusing to award her attorney fees, based on the disparity between the parties' incomes. See Minn. Stat. 518.14, subd. 1 (1994) (authorizing need-based attorney fees).

In view of the higher property award and the substantial permanent maintenance award to appellant, the trial court did not abuse its broad discretion in denying attorney fees. See Reinke v. Reinke, 464 N.W.2d 513, 516 (Minn. App. 1990) (where the property and income of the parties is evenly balanced following reapportionment of the marital property and the award of permanent maintenance, the denial of attorney fees cannot be characterized as an abuse of discretion). Moreover, the trial court found appellant did not adequately document the amount of her attorney fees. See Currey v. Currey, 393 N.W.2d 683, 687 (Minn. App. 1986) (trial court did not abuse its discretion in failing to award attorney fees when no documentation of the fees were provided).

III.

The dissolution statute authorizes a trial court to reopen a decree on various grounds, including fraud, misrepresentation, or other misconduct of a party. Minn. Stat. 518.145, subd. 2(3) (1994). A trial court's decision whether to vacate a decree will not be disturbed absent an abuse of discretion. Sanborn v. Sanborn, 503 N.W.2d 499, 502 (Minn. App. 1993), review denied (Minn. Sept. 21, 1993). Fraud on the court in the marriage dissolution context has three general components: (1) an intentional course of material misrepresentation or disclosure; (2) having the result of misleading the court and opposing counsel; and (3) making the property settlement unfair. Id. at 503. Appellant contends the trial court abused its discretion in refusing to reopen the entire property settlement because of respondent's intentional misrepresentations.

At the original dissolution trial respondent testified falsely that he had not purchased the boat in his possession. The trial court reopened the hearing on this issue, awarding respondent the value of the equity in the boat with a compensating award to appellant.

The trial court found that respondent: (1) falsely stated the mortgage balance on his business property to be $36,000, when in fact the balance was approximately $42,700; and (2) understated the amount of the mortgage balance so as not to alert appellant to the fact that he purchased the boat. Respondent's misrepresentation about the lower mortgage balance caused his equity in the business property to appear higher than it really was. Because the business was awarded to respondent, the misrepresentation about the mortgage balance did not prejudice appellant, since the inflated value of the business was offset by additional equity awarded to appellant.

Appellant claims respondent intentionally failed to disclose or adequately account for a $10,000 certificate of deposit. Respondent cashed in the certificate and transferred it to the parties' savings account in April 1992, five months before the parties separated in September 1992. The trial court credited respondent's testimony that the proceeds from the certificate were used within about two weeks to pay income taxes and to purchase an annuity for each party. There was no testimony contradicting respondent's testimony.

Appellant claims respondent intentionally failed to disclose that he removed certain items of personal property from the homestead. Even if respondent misrepresented the items of property in his possession at the time of the dissolution trial, appellant has not shown how the misrepresentation made the property division unfair, considering that appellant stipulated to division of the personal property after she learned of the alleged misrepresentation.

Finally, appellant contends respondent intentionally failed to disclose that he made a payment with marital funds to settle a lawsuit. Respondent testified that the payment was made in 1988 or 1989. The payment occurred several years before the parties separated, and there is no claim that the payment was made in contemplation of commencing a marriage dissolution. The payment is irrelevant to the dissolution proceeding.

The trial court acted within its discretion in refusing to reopen the entire property division, because the court properly adjusted the property division to reflect respondent's purchase of the boat, and appellant did not show that the other claimed misrepresentations resulted in an unfair property division.

Affirmed.