This opinion will be unpublished and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
C2-95-2367

In Re the Marriage of:
Bertil Conrad Nielsen, petitioner,
Respondent,

vs.

Debra Lee Nielsen,
Appellant.

Filed August 6, 1996
Affirmed as modified
Holtan, Judge
*

Anoka County District Court
File No. F4-92-11780

Louis M. Reidenberg, 625 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402 (for Appellant)

David M. Lawson, 3433 Broadway Street Northeast, Suite 185, Minneapolis, MN 55413 (for Respondent)

Considered and decided by Klaphake, Presiding Judge, Huspeni 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 Debra Lee Nielsen (wife) and respondent Bertil Conrad Nielsen (husband) were married March 10, 1984. The couple had one child. When they separated on November 10, 1992, they had achieved a measure of financial success: husband was 50% owner of a flourishing business, and the couple had made numerous productive investments. During the marriage, wife was primarily a homemaker. At the time of trial, wife was pregnant, but husband was not the father. The trial court valued and divided marital assets and debts and awarded spousal maintenance and some attorney fees to wife. On appeal, wife challenges many of the findings and conclusions. Husband challenges the award of attorney fees. We affirm as modified.

1. Because a trial court has broad discretion in dividing property, its decision will stand, unless it has abused that discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). An appellate court will not reverse a trial court's valuation of an asset in a dissolution action unless it is "clearly erroneous on the record as a whole." Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). The trial court need not be exact in its valuation of assets; "it is only necessary that the value arrived at lies within a reasonable range of figures." Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979) (quoting Hertz, 304 Minn. at 145, 229 N.W.2d at 44).

In determining the value of a closely held business, a trial court abuses its discretion

by failing to take into consideration the relevant facts and the fundamental factors appropriate for use and analysis in the value of a closely held corporation.

Nardini v. Nardini, 414 N.W.2d 184, 190 (Minn. 1987) (strongly suggesting consideration of the factors enumerated in Rev. Rul. 59-60, 1959-1 C.B. 237). "Averaging is a fair method of calculation when there is no great disparity between estimated values." Flynn v. Flynn, 402 N.W.2d 111, 117 (Minn. App. 1987) (citing Balogh v. Balogh, 356 N.W.2d 307, 313 (Minn. App. 1984)). In Flynn, even though one expert's estimates of the value of various limited partnerships were approximately double another's estimates, the trial court did not abuse its discretion by averaging the two valuations. Id. An averaging approach can, however, be unfair if it is arbitrary, as when the trial court makes no findings demonstrating why or how it arrived at the valuation figure. Worden v. Worden, 403 N.W.2d 909, 911 (Minn. App. 1987) (citing Balogh, 356 N.W.2d at 313).

Wife contends the trial court erred in its valuation of Scales Advertising, Inc. and NJS Partnership (husband's businesses) by (1) failing to consider the Nardini factors, (2) averaging the valuations of the parties' two experts, and (3) subtracting $16,000 as a nonmarital portion. We disagree.

Husband's expert noted in his valuation report that he had considered all eight Nardini factors. Because Nardini does not require specific findings on all the factors, it was sufficient that the trial court heard evidence on the factors before making its decision.

The difference between the experts' valuations was not so great as to preclude averaging in this case. In fact, the valuation by husband's expert was 60% of the valuation by wife's expert, a smaller variance than the one affirmed in Flynn. Furthermore, because the trial court explained why it believed wife's valuation was too high and husband's too low and because both experts testified that their figures fell within the range of possible valuations, the decision to average was not arbitrary. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations).

In determining the nonmarital value of Scales Advertising, the trial court properly relied on the report and testimony of husband's expert, demonstrating how he valued the business at $16,368 as of the end of 1984, the year the parties were wed. This valuation was unrebutted. A logical inference is that husband had a $16,000 interest in the business before his marriage. See Minn. Stat. ' 518.54, subd. 5(b) (1994) (nonmarital property defined as including property acquired before the marriage).

2. Wife contends the trial court abused its discretion in calculating the value of husband's Merrill Lynch SEP account by deducting husband's nonmarital claim and the two contributions to the plan made in 1993 and 1994, $8,527 and $8,555, respectively.

Unless the parties agree to a different valuation date or unless the court specifically finds that another date is fair and equitable, the trial court

shall value marital assets for purposes of division between the parties as of the day of the initially scheduled prehearing settlement conference.

Minn. Stat. ' 518.58, subd 1 (1994).

Husband's testimony and documentary evidence support the finding that before the marriage, $1,215 was deposited in this account and is, therefore, nonmarital property. The trial court properly deducted this amount from the balance. The prehearing conference, setting the statutory valuation date, occurred on January 4, 1995. Because the record does not reveal a different valuation date, the Merrill Lynch SEP account was undervalued by $17,083, representing the two employer contributions for 1993 and 1994.

We, therefore, modify the division of property with respect to this asset. The trial court valued the Merrill Lynch SEP account at $46,292 and awarded $20,000 to wife and $26,292 to husband (a 43% to 57% split, approximating the overall split of the marital property). Because the asset should have been valued at $63,375, we modify judgment by awarding $27,251 of the Merrill Lynch SEP account to wife (43%) and $36,124 to husband (57%).

3. Wife contends the trial court's $24,133 valuation of the parties' Shoreview townhouse is an abuse of discretion. She contends the trial court improperly relied on her prehearing statement to set this amount and that no evidence was presented at trial to corroborate this figure. She further contends it was an abuse of discretion for the trial court to fail to consider the tax consequences of this award.

The trial court properly valued the property. In addition to wife's prehearing statement, there was trial evidence that the townhouse had a tax basis of $24,000. Because wife cites no legal authority to support any of her other contentions, she has not met her burden of affirmatively showing error. See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (holding that error is never presumed on appeal, and the burden of showing rests with appellant). Furthermore,

[a]lthough it is within the discretion of the trial court to consider the tax consequences of its property division, * * * the court should not speculate about possible tax consequences.

Miller v. Miller, 352 N.W.2d 738, 744 (Minn. 1984).

4. Wife contends the trial court failed to consider husband's dissipation of assets. She claims this dissipation occurred in two ways: (1) by husband's failure to make a March 1993 balloon payment on an undeveloped lot purchased under a contract for deed, this marital asset, valued at $5,883, was lost; and (2) husband withdrew money from the parties' IDS account without wife's consent.

Minn. Stat. ' 518.58, subd. 1a (1994), provides:

If the court finds that a party to a marriage, without consent of the other party, has in contemplation of commencing, or during the pendency of, the current dissolution * * * proceeding, transferred, encumbered, concealed, or disposed of marital assets except in the usual course of business or for the necessities of life, the court shall compensate the other party * * *.

(Emphasis added.) Here, the trial court considered wife's dissipation claims, but specifically declined to hold husband responsible for the depletion because (1) husband was not required to make the balloon payment and (2) the money withdrawn from the IDS account was used to pay family bills. We conclude, therefore, that the lost real estate is not a dissipated asset for which wife must be compensated and that the transferred IDS monies were used for the necessities of life.

5. Wife contends the trial court, by holding her responsible for $38,358 of the marital debt, retroactively changed the temporary orders requiring husband to pay the couple's bills during the pendency of the dissolution. She further argues that husband may have had some tax benefit from this apportionment and that husband alone received income from some of the assets on which he paid bills. We cannot say the trial court improperly apportioned the couple's debt.

The apportionment of marital debt, though not required, is treated and reviewed in the same manner as division of assets. Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986), review denied (Minn. May 29, 1986). Furthermore, as we previously stated, a trial court may not speculate about possible tax consequences. Miller, 352 N.W.2d at 744.

Here, the trial court's temporary order reserved the final apportionment of debt until the final judgment and decree. It specifically declined to order that wife would be held harmless for the parties' bills. Further, even though husband may have had some tax benefit from this apportionment, such consequences are speculative. Finally, in support of her contention that husband received income from the rental properties on which he paid expenses, wife only generally refers this court to husband's 1993 tax return. She has not satisfied her burden of showing error.

6. Wife contends valuing the 1993 Toyota and 1987 Saab at $8,500 and awarding them to her was an abuse of discretion. She argues her trial testimony and a schedule of assets which she prepared prove that the Saab was a gift to her son and the Toyota was subject to a $20,000 loan. She also claimed at trial that a portion of the couple's boat was traceable to her $4,000 nonmarital interest in a previous boat.

Our review of the record does not convince us that the trial court erred by ruling that wife did not prove by a preponderance of the evidence her nonmarital interest in any of these items or that the trial court abused its discretion in not crediting her claims. See Gorz v. Gorz, 428 N.W.2d 839, 843 (Minn. App. 1988) (stating the burden of proof).

7. Wife contends the trial court abused its discretion by awarding her spousal maintenance of $700 per month for 18 months and by allegedly considering the property division in assessing her need.

The standard of review on appeal from a trial court's determination of a maintenance award is whether the trial court abused the wide discretion accorded to it.

Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).

Under Minnesota law, the trial court "may grant" a maintenance order if the spouse seeking maintenance lacks sufficient property, "including marital property," to provide for his or her reasonable needs or

is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment * * * .

Minn. Stat. ' 518.552, subd. 1 (1994) (emphasis added).

The trial court is to look at [the obligee]'s income, including income from marital property, not at the property division itself, in assessing [his or] her need for maintenance.

Bury v. Bury, 416 N.W.2d 133, 138 (Minn. App. 1987). The obligee "should not be required to place herself at risk by liquidating her assets to meet her expenses." Id.

Nothing in the judgment and decree supports wife's contention that the trial court, in assessing wife's need, expected her to liquidate her assets to meet her expenses. Discussing the statutory factors prescribed by Minn. Stat. ' 518.552, the trial court found, inter alia, that (1) wife, at age 38, was sufficiently young and healthy to find full-time employment, (2) over $120,000 worth of the $257,000 in marital property awarded to her was fairly liquid, (3) the marriage was not long-term and that the standard of living was "comfortable but not extravagant," and (4) husband had sufficient income to pay reasonable spousal maintenance. The trial court also noted that husband had paid the same amount of maintenance while the dissolution was pending, and it expressed skepticism about wife's refusal to sell the couple's lake property in 1993 when such a "sensible economic decision" would have netted the parties $100,000.

Even though the trial court specifically found wife did "not lack sufficient property to provide for her reasonable needs considering the standard of living established during the marriage," it nevertheless found her current pregnancy was a "relevant circumstance" justifying a maintenance award because the pregnancy would make it difficult for her to obtain full-time employment quickly.

Ordinarily, the trial court must make findings that "balance the obligor's ability to provide maintenance with the obligee's needs and ability to meet her needs." Bliss v. Bliss, 493 N.W.2d 583, 587 (Minn. App. 1992), review denied (Minn. Feb.12, 1993). However, in this case, because the trial court did not base the award so much on wife's financial need as upon the circumstance of her pregnancy, it was not required to make a detailed analysis of her monthly needs and expenses. Nevertheless, it noted that the "loans" wife claimed were unsubstantiated and were more likely for attorney fees than living expenses.

Notwithstanding wife's contention that the awarded property will not "provide her with a substantial source of income to allow her to live beyond poverty level," the logical inference is that the trial court expected wife to prudently invest her liquid marital property, live in the townhouse she would own, and find suitable employment within 18 months.

8. Wife contends the trial court, by adopting nearly verbatim husband's proposed findings and conclusions, abused its discretion. We disagree.

"[V]erbatim adoption of a party's proposed findings and conclusions of law is not reversible error per se." Bliss, 493 N.W.2d at 590. Nevertheless, even though this is an acceptable practice, it "raises the question of whether the trial court independently evaluated each party's testimony and evidence." Id. Thus, it is imperative that the trial court

scrupulously assure that findings and conclusions--whether they be the court's alone, one or the other party's, or a combination--are always detailed, specific and sufficient enough to enable meaningful review by this court.

Id.

This marital dissolution was quite complicated. It required the trial court to make many complex findings regarding the valuation and apportionment of the parties' considerable marital assets. It also required the trial court to make more subjective findings regarding wife's need for spousal maintenance. The findings and conclusions were, however, sufficiently detailed to allow for our meaningful review.

9. Both parties challenge the trial court's award of $10,000 in attorney fees to wife.

The allowance of attorney fees "rests almost entirely in the discretion of the trial court." Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977) (refusing to disallow an award). "[O]nly rarely will a trial court's decision regarding attorney fees be overturned on appeal." Burns v. Burns, 466 N.W.2d 421, 424 (Minn. App. 1991) (holding no abuse of discretion in refusing to grant an award). In light of the disparity in income and the amount of fees for which wife is responsible, an award of $10,000 is not an abuse of discretion.

10. On appeal, husband requests attorney fees of $5,000, but makes no motion to that effect and submits no affidavit of expenses substantiating his claim. Although he cites no statutory authority for his request, he apparently relies on Minn. Stat. ' 549.21 (1994).

In all civil actions, upon motion of a party or upon the court's own motion, the court may award attorney fees against a party who acts in bad faith or asserts a claim that is frivolous and costly to the other party. Minn. Stat. ' 549.21, subd. 2. "An award of attorney fees on appeal rests within the discretion of this court." Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994). Because we see no evidence this appeal was taken in bad faith or is frivolous, we refuse to award attorney fees.

Affirmed as modified.


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.