This opinion will be unpublished and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
C1-96-734

In Re the Marriage of:
Mark Lee Robertson, petitioner,
Appellant,

vs.

Paula Wynn Robertson,
Respondent.

Filed July 16, 1996
Affirmed in Part and Remanded
Short, Judge

Ramsey County District Court
File No. F795562

James G. Roban, 261 Ruth Street, St. Paul, MN 55119 (for Appellant)

John G. Westrick, Kari L. Clark, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Holtan, Judge.*

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

SHORT, Judge

In this dissolution case, Mark Lee Robertson challenges the trial court's denial of his motion for a new trial or, alternatively, to amend the trial court's findings and conclusions of law with respect to (1) custody, (2) child support, (3) day care expenses, (4) insurance, (5) homestead allocation, and (6) the annual dependent tax exemption. Robertson's former spouse argues the trial court erred by failing to address Robertson's pension in its property division and seeks attorney fees for this appeal. We affirm in part and remand.

D E C I S I O N

I.

An appellate court will not reverse a custody determination unless the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). A trial court's findings will be sustained unless they are clearly erroneous. Id.

Robertson argues the trial court erred by awarding his former spouse sole physical custody of the parties= two-year-old child. The record demonstrates:  (1) Robertson was the child's primary caretaker; (2) Robertson took steps to limit his former spouse's participation in the caretaking of their child when she attempted to share in that role; and (3) Robertson's former spouse is more willing than Robertson to see that the other parent remains a significant part of the minor child's life. The trial court made extensive findings on each of the statutory factors listed in Minn. Stat. ' 518.17, subd. 1(a) (1994), which are supported by the record. Given these facts, we cannot say the trial court abused its discretion in finding that it is in the best interests of the child to award Robertson's former spouse sole physical custody subject to Robertson's right of liberal visitation. See Maxfield v. Maxfield, 452 N.W.2d 219, 222 (Minn. 1990) (acknowledging that the primary caretaker factor may not be used to the exclusion of all other factors in determining the best interests of a child).

II.

The trial court has broad discretion to provide for the support of the parties' child. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). We will not reverse the trial court's decision on child support unless it is clearly erroneous. Id. at 51.

The trial court ordered Robertson to pay monthly child support of $384 based on the guidelines amount for his net monthly income. Robertson argues that guidelines support is unfair where the minor child is with him "half of the time." However, there is no evidence that Robertson cares for the minor child "half of the time." The custody and visitation arrangement contained in the trial court's order does not indicate such an allocation. Moreover, Robertson's former spouse was granted sole physical custody, implying she has a greater obligation to care for the minor child's physical needs. Under these circumstances, we cannot say the trial court's decision was clearly erroneous. See Tuma v. Tuma, 389 N.W.2d 529, 531-32 (Minn. App. 1986) (rejecting the argument that the trial court erroneously failed to reduce a child support obligation to reflect the monetary contributions associated with a liberal visitation schedule).

III.

The trial court shall allocate day care costs to each parent in proportion to each parent's net income after the payment of child support, unless the allocation would be substantially unfair. Minn. Stat. ' 518.551, subd. 5(b) (Supp. 1995). Robertson argues the trial court's day care award is unfair. However, based on Robertson's greater net income, [1] the trial court ordered Robertson to pay $114 as additional child support for day care. In light of the facts, the trial court's decision is not clearly erroneous. See Rutten, 347 N.W.2d at 50 (noting the trial court's broad discretion to provide for the support of the parties' child).

IV.

A trial court must assign the responsibility for medical insurance and uninsured medical and dental expenses for a minor child. Minn. Stat. ' 518.171, subd. 1(a)(1) (Supp. 1995). In addition, a trial court shall order the party with the better health and dental insurance to name the minor child as a beneficiary. Minn. Stat. ' 518.171, subd. 1(a)(2) (Supp. 1995).

Although he agrees his insurance coverage is better than his former spouse's, Robertson argues he and his former spouse should share equally the costs of their minor child's health and dental insurance. The trial court ordered:  (1) Robertson to provide health and dental insurance for the minor child through his employment; and (2) Robertson and his former wife to share equally the cost of any uncovered or unreimbursed medical and dental expenses for the minor child. Under these facts, we cannot say the trial court abused its broad discretion.

V.

A trial court has broad discretion in dividing marital property, and its decision will not be reversed on appeal absent an abuse of discretion. Rohling v. Rohling, 379 N.W.2d 519, 523 (Minn. 1986).

Robertson argues the trial court erred in awarding his former spouse the parties' homestead because his former spouse cannot afford to stay in the homestead, and he deserves the homestead because the child is with him for half of the time. Neither position is supported by case law or the record. The trial court did not abuse its discretion by awarding the homestead to the child's sole physical custodian.

VI.

A custodial parent should receive the dependent exemption for any taxable year unless that parent signs a written declaration waiving the exemption. 26 U.S.C. ' 152(e)(1)-(2) (1994); see Biscoe v. Biscoe, 443 N.W.2d 221, 224 (Minn. App. 1989) (stating that "if exemptions are allocated to a noncustodial parent, the custodial parent must execute a clear waiver of the exemptions").

Robertson argues the trial court's decision to alternate the annual tax exemption between the parties was inappropriate. Robertson's former spouse admits that she did not address this issue in her notice of review, but also argues the trial court's decision is plain error. See Minn. R. Civ. App. P. 103.04 (permitting appellate courts to review any matter required by the interest of justice). After careful review, we conclude the trial court made a proper and equitable determination. See, e.g., Fudenberg v. Molstad, 390 N.W.2d 19, 21 (Minn. App. 1986) (affirming a referee's order requiring the custodial parent to execute a waiver of the dependency exemption).

VII.

Pension benefits are property and must be considered by the trial court when dividing property or awarding maintenance. Kruschel v. Kruschel, 419 N.W.2d 119, 121 (Minn. App. 1988). The valuation and division of pension rights are matters within the trial court's discretion. DuBois v. DuBois, 335 N.W.2d 503, 505 (Minn. 1983).

Robertson=s former spouse identified Robertson's pension as an asset in her answer and counter-petition for dissolution and in her posttrial responsive notice of motion. However, the trial court failed to address this issue in either its original order or amended order. Robertson's former spouse argues the trial court erred by not awarding her part of the pension. The record demonstrates: (1) Robertson had pension deductions taken from his paycheck by the state for approximately 14 years; and (2) Robertson was married for approximately six of those years. Because the trial court omitted this property from its judgment, we remand for consideration by the trial court. See Roberson v. Roberson, 296 Minn. 476, 477-78, 206 N.W.2d 347, 348 (1973) (stating the failure to move for amended findings does not bar a challenge on appeal to the sufficiency of findings); cf. Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 918 (Minn. 1990) (finding the defendant did not waive a statute of limitations defense, which it pleaded in its answer and for which it produced evidence at trial, even though it failed to address the defense in the pretrial statement, and reiterating "the pleadings cannot be ignored by a trial court when it determines the rights of the parties").

VIII.

An appellate court may award appropriate attorney fees and necessary disbursements on appeal. Minn. Stat. ' 518.14, subd. 1 (1994). A court shall award attorney fees if it finds:  (1) fees are necessary for the good-faith assertion of a party=s rights and will not contribute unnecessarily to the length and expense of the proceeding; (2) the party from whom fees are sought has the means to pay them; and (3) the party to whom fees are awarded does not have the means to pay them. Id. Robertson's former spouse requests $3,500 in attorney fees for the cost

of this appeal. Because there is a financial disparity between the parties' incomes, we award Robertson's former spouse $1,000 in attorney fees.

Affirmed in part and remanded.


Footnotes

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

[1]The trial court stated Robertson earns 44 percent of the parties' combined income and his former spouse receives 56 percent. This is merely an inadvertent transposition of the percentages based on the parties' individual net incomes as found by the trial court.