This opinion will be unpublished and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-96-117

In Re the Marriage of:
June Lois Hunter, petitioner,
Respondent,

vs.

Dennis Dean Hunter,
Appellant.

Filed July 30, 1996
Affirmed
Holtan, Judge
*

Pipestone County District Court
File No. F1950148

David Trygstad, Trygstad Law Office, 108 Second Avenue Southeast, P. O. Box 693, Pipestone, MN 56164-0693; Constantine J. Gekas, 2850 Metro Drive, Suite 429, Bloomington, MN 55425 (for Respondent)

Christopher J. Schulte, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402; Merlyn Meinerts, Nord, Macklin & Meinerts, P.A., P.O. Box 427, 207th Street and Holyoke Avenue, Lakeville, MN 55044 (for Appellant)

Considered and decided by Lansing, 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

HOLTAN, Judge

Appellant-father Dennis Dean Hunter challenges the trial court's award to respondent-mother June Lois Hunter of more than half the marital property. We affirm.

FACTS

The parties were married in 1967 and had a child. Father worked outside the parties' hometown and, by 1992, no longer lived in the marital homestead. The parties' son was emancipated in 1993. When mother petitioned to dissolve the parties' marriage in January 1994, she did not seek maintenance. At the August 1995 trial, both parties proposed that property be divided equally. When the court asked mother about maintenance, she said that she did not seek it. After a recess, mother testified that she sought maintenance, and the parties testified to their monthly expenses. In an October 1995 judgment, the trial court awarded mother more than half of the property "in lieu of" maintenance. After the trial court denied the bulk of father's motion for amended findings or for "reconsideration," father appealed.

D E C I S I O N

Father does not challenge the trial court's property valuations, but he does claim that awarding mother two-thirds of the marital property is inequitable. See Minn. Stat. ' 518.58, subd. 1 (1994) (trial court to divide marital property equitably). Absent a motion for a new trial, we review whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment. Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976). Findings of fact are not set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.

Father claims that under Weikle v. Weikle, 403 N.W.2d 682, 686 (Minn. App. 1987), review denied (Minn. June 30, 1987), substantially unequal property divisions cannot stand. Cf. Miller v. Miller, 352 N.W.2d 738, 742 (Minn. 1984) (equal property division presumptively equitable upon dissolution of a long-term marriage). Under Weikle, however, the critical question is not whether the property distribution is unequal, but whether any inequality is justified. Weikle, 403 N.W.2d at 686 (unequal property division reversed after an 18-year marriage because of the inequality and "error in the reasons stated by the trial court to justify that inequality"). [1]

Here, the trial court awarded mother additional property "in lieu" of maintenance. The judgment shows that father has a monthly surplus, mother has a monthly deficit, mother will not receive maintenance, and mother's rental property may not generate enough income to cover her deficit. These findings support awarding mother a disproportionate share of the marital property. See Minn. Stat. ' 518.58, subd. 1 (in dividing marital property, trial court shall address, among other things, the "liabilities, needs, opportunity for future acquisition of capital assets, and income of each party").

Father claims that both parties are in relatively the same financial condition and argues that there are "no extenuating circumstances" to justify awarding mother a disproportionate share of the marital property. See Reynolds v. Reynolds, 498 N.W.2d 266, 270 (Minn. App. 1993) (absent extenuating circumstances, an equal property division is equitable). The record supports the existence of mother's deficit and father's surplus. Also, mother's deficit combines with father's surplus to constitute circumstances justifying an award to mother of a disproportionate amount of property. E.g., Letsch v. Letsch, 409 N.W.2d 239, 243 (Minn.App. 1987) (affirming disproportionate award of property to wife noting that the property division statute "requires a just and equitable division, not necessarily an equal one" and considering the facts of the case).

Father claims that the trial court's findings fail to address mother's contribution to the marital estate during the separation and various other items. The cases father cites to support his claims that the findings are inadequate are distinguishable. Also, the trial court found that mother maintained certain property during the separation. Further, many of the factors on which the trial court allegedly did not make findings were not put in issue before the trial court, and several of the allegedly missing findings are addressed by the findings on the parties' employment. [2]

Father claims that the basic issue to be decided by the trial court was whether he would get a cash payment from mother or a lien on property awarded to her. Because father's argument on this issue assumes an equal division of marital property and because we affirm the trial court's unequal property division, we do not address this claim.

Father claims that mother was not entitled to a disproportionate share of the property because case law prohibits awarding additional property to a party to compensate that party for care to a child during a separation. The trial court, however, awarded mother a disproportionate share of the property "in lieu" of maintenance.

Neither party's pleadings sought maintenance, but the trial court still awarded mother more than half of the property "in lieu" of maintenance. Father claims that the trial court erred by considering the unpleaded maintenance issue when dividing the marital property. This issue is beyond the limited scope of review allowed by father's failure to seek a new trial, and we do not address the issue. We note, however, that if we were to address the issue, father would not prevail. See Folk v. Home Mut. Ins. Co., 336 N.W.2d 265, 267-68 (Minn. 1983) (consent to litigate an unpleaded issue may be express or implied from parties' conduct).

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] Father cites several other cases reversing unequal property divisions, but they are distinguishable.

[2] Father also claims that the trial court failed to make findings on his payments to mother and child during the separation and on mother's use of the proceeds of certain land. A claim is "too late" when made for the first time in a motion for a new trial. Antonson v. Eckvall, 289 Minn. 536, 539, 186 N.W.2d 187, 189 (1971). Here, father did not even move for a new trial; therefore, and we do not address the issue.