This opinion will be unpublished and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

CX-95-2214

In Re the Marriage of:

Peter W. Lang, petitioner,

Appellant,

vs.

Mary Anne Lang,

Respondent.

Filed June 11, 1996

Affirmed

Foley, Judge*

Hennepin County District Court

File No. DC 197063

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

Barbara A. Halper, Deborah Rabinowitz, Halper Law Offices, 2040 Douglas Drive North, Suite 200, Golden Valley, MN 55422 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.

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

FOLEY, Judge

Appellant Peter W. Lang challenges a post-decree order denying his motion for amended findings of fact, conclusions of law, and order of judgment and decree. He argues that the district court abused discretion by (1) using bonus income to calculate his child support obligation and departing upward from the child support guidelines, and (2) requiring the parties to share equally in the tax consequences resulting from a dissipated IRA. He also argues that it was an abuse of discretion for the district court to award attorney fees to respondent Mary Anne Lang. We affirm.

FACTS

Judgment and decree were entered on June 15, 1995 dissolving the parties' 18-year marriage. The parties were awarded joint legal and split physical custody of their two minor children, with their son residing primarily with appellant and their daughter residing primarily with respondent. Each child also spends an equal amount of time with their non-custodial parent.

Both parties were employed outside the home during the marriage. Appellant is employed full-time as a production manager for Reelworks, Inc. Respondent is employed as a dental hygienist. The district court determined appellant's 1994 gross income to be $60,771, including bonuses, and determined respondent's 1994 gross income to be $27,136, resulting in a net monthly income of $1,799.

Finding appellant's 1995 income consistent with the previous year, the district court calculated his net monthly income for child support purposes at $3,523. Also noting the recent death of appellant's father, the district court found appellant to be the beneficiary of two trusts, a "marital share trust" and a "family share trust." The testimony of the trustee approximated the value of the "family share trust" at $600,000. The district court concluded that the trust income was not considered income for purposes of calculating child support and spousal maintenance, but noted that the trust evidenced a financial "cushion" that was unavailable to respondent.

Noting that it is appropriate for children living in two different homes to have no great differential in lifestyle, the district court used the formula set out in Valento v. Valento, 385 N.W.2d 860 (Minn. App. 1986), review denied (Minn. June 30, 1986), to determine the parties' child support obligations. Using the Valento formula, the district court determined that appellant is obligated to pay $431 per month. However, on review of the parties' incomes and the needs of the children, the district court determined that an upward departure was appropriate. The district court then ordered appellant to pay child support in the amount of $862 per month.

The parties liquidated their IRAs to pay marital debts. The district court found that respondent failed to set aside sufficient monies from the liquidation of her IRA to pay the 1993 federal and state taxes due on the liquidation. The district court then concluded that the tax debt constituted marital property and should be equally borne by the parties. The district court also ordered appellant to pay respondent's costs and attorney fees as to the civil action.

D E C I S I O N

This court reviews the district court's finding under the clearly erroneous standard. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984); see Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (clearly erroneous means against logic and the facts on record).

Appellant argues that the district court abused its discretion by using his bonus income to calculate his child support obligation. He contends that because his bonus income is not guaranteed, the district court should not have included the bonus income when calculating his net income available for child support.

Appellant also argues that the district court erred in making an upward departure from the child support guidelines. He argues that the upward departure in child support makes him responsible for the complete financial obligations of both children, even though the parties have split physical custody.

Minn. Stat. ' 518.54, subd. 6 (1994) provides in part that "'[i]ncome' means any form of periodic payment to an individual *  *  *." Bonuses may be included in the calculation of a child support obligation when periodic and reliable. Sherburne County Social Servs. v. Riedle, 481 N.W.2d 111 (Minn. App. 1992); Lynch v. Lynch, 411 N.W.2d 263, 266 (Minn. App. 1987) (citing Haasken v. Haasken, 396 N.W.2d 253, 261 (Minn. App. 1986), review denied (Minn. Oct. 31, 1987).

In determining child support obligations, the district court must consider the following factors:

(1) all earnings, income, and resources of the parents, including real and personal property * * *; (2) the financial needs and resources, physical and emotional condition, and educational needs of the child or children to be supported; (3) the standard of living the child would have enjoyed had the marriage not been dissolved, but recognizing that the parents now have separate households; * * *.

Minn. Stat. ' 518.551, subd. 5(c) (1994). The district court may deviate from the guidelines by making further findings of fact. Minn. Stat. ' 518.551, subd. 5(i) (1994).

The district court found that appellant received substantial bonuses for the past three years. Concluding that the bonuses could be used to calculate child support obligations, it determined that even if the bonuses were not considered income, the money would be considered an asset that would be available for distribution in the settlement award.

The district court also found appellant to be the beneficiary of a substantial "family share trust" and could utilize trust assets by making a request to the trustee. Finding that the trustee was a relative of appellant and could make disbursements from the trust at his discretion, the district court determined that the trust provided a "financial cushion" for appellant that was unavailable to his former spouse and the child in her care. The district court concluded that respondent's income alone was insufficient to allow her to remain self-supporting and made an upward departure from the support guidelines.

On review of the record, we cannot disagree with the district court. There is evidence to support the determination that appellant's bonuses have been reliable. Despite appellant's speculation, he again received a bonus this year. The record also indicates that appellant has not received any money from the trust because he has not made such a request. Appellant's brother, a co-beneficiary of the trust, has requested and received disbursements from the trust. Appellant has not presented any evidence to the contrary that would support his claims that there are any limitations on his receiving similar disbursements other than by his own volition in not making any request for funds.

If at some time in the future appellant's bonus income terminates or the trust is dissipated, thereby creating a substantial change in circumstances, he would not be estopped from moving the court to reconsider the amount of his child support obligation. Minn. Stat. ' 518.64, subd. 2 (1994). Until appellant has cause to move the district court for modification, we conclude, therefore, that the original support award is just and reasonable.

Appellant argues that he should not be liable for half the 1993 tax consequences that resulted from the dissipation of respondent's IRA. He contends that his former spouse utilized poor planning in failing to set aside sufficient monies to pay the taxes due on the IRA liquidation and she alone should be responsible for this debt.

"The division of marital debts is treated in the same manner as division of assets." Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986) (citing Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984)), review denied (Minn. May 29, 1986). A party to a dissolution may be held liable for marital debts, even though the other party receives the benefit of the payment. Id. (citing Dahlberg, 358 N.W.2d at 80). The district court has broad discretion in dividing property and this court

will and must affirm the decision made if it has an acceptable basis in fact and principle even though we might have made a different disposition of the problem.

Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986) (quoting Bollenbach v. Bollenbach, 285 Minn. 418, 426-27, 175 N.W.2d 148, 154 (1970)).

The district court found that the tax consequences of the liquidated IRA constituted marital property and divided the debt between the parties. We find no evidence in the record to permit an alternative conclusion. On review of the record before us, we conclude that the district court did not err by dividing the marital debt between the parties.

Appellant also argues that the district court erred in awarding attorney fees to his former spouse. He contends that the child support award has left him unable to pay his own expenses. Therefore, appellant argues that he should not be made to incur additional debt by being held responsible for his former spouse's attorney fees. Respondent has also requested attorney fees on appeal.

Granting of attorney fees is largely at the discretion of the district court. Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977). In addition, this court independently determines the merits of appellant's request for a recovery of attorney fees on appeal. Frederiksen v. Frederiksen, 368 N.W.2d 769, 779 (Minn. App. 1985) (citing Solon, 255 N.W.2d at 397).

The district court awarded attorney fees to respondent in the amount of $5,000 because she does not have sufficient income to pay the balance of her fees. The record shows that appellant has additional sources of income that are available to him to pay his expenses. We conclude, therefore, that the district court's award of attorney fees was not an abuse of discretion. Furthermore, we also award respondent reasonable attorney fees on appeal. Respondent should submit an affidavit of fees incurred on appeal within 10 days of filing of this opinion. A further order of the court will issue on attorney fees.

Affirmed.


Footnotes

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