This opinion will be unpublished and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

C0-96-580

In Re the Marriage of:

Paulette Boehland, petitioner,

Respondent,

vs.

Paul Boehland,

Appellant.

Filed October 22, 1996

Affirmed in part, reversed in part, and remanded

Huspeni, Judge

Otter Tail County District Court

File No. F2941031

Peter M. Irvine, 450 West Main Street, P. O. Box 160, Perham, MN 56573 (for respondent)

Nathan L. Seeger, 128 West Junius Avenue, Fergus Falls, MN 56537 (for appellant)

Considered and decided by Huspeni, Presiding Judge, Amundson, Judge, and Thoreen, Judge.[*]

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

HUSPENI, Judge

Appellant Paul Boehland claims that the trial court erred in determining his income, dividing marital property, and awarding visitation inconsistently with the parties' stipulation. We reverse and remand the determination of appellant's income, the period over which appellant must pay respondent Paulette Boehland for her interest in the marital estate, and the visitation schedule. We otherwise affirm the trial court.

FACTS

After the parties married, they moved to, and worked on, the dairy farm of appellant's parents. They later acquired an interest in the dairy herd. In October 1990, the parties bought the farm on a contract for deed for the land, a bill of sale for the cattle, and a lease of the equipment. Originally, the documents were drafted in appellant's name, but respondent's name was added to them before they were executed. In a March 1995 judgment, the trial court dissolved the parties' marriage and reserved other issues for trial. A January 1996 amended judgment rejected appellant's claims of a nonmarital interest in the land and cattle and a claim that respondent secreted property from the marital estate. It also divided the property and debts, and set visitation inconsistently with the parties' stipulation.

D E C I S I O N

1. The trial court reduced appellant's gross monthly income of $3,942.56 by "one-third for the appropriate statutory deductions" to find his net monthly income to be $2,602.09. Appellant challenges this finding. A finding of net income for support purposes is affirmed if it has "a reasonable basis in fact." Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987). Because the parties dispute the elements of appellant's income, the trial court's blanket "one-third" reduction for "appropriate statutory deductions" is insufficiently specific to allow this court to determine whether the trial court's income finding has "a reasonable basis in fact." See Minn. Stat. § 518.551, subd. 5(b) (Supp. 1995) (listing deductions used to calculate net monthly income); see also Bartl v. Bartl, 497 N.W.2d 295, 299 (Minn. 1993) (reversing trial court's failure to allow certain statutory deductions). We remand this issue for the trial court to address the deductions to which appellant is entitled.

We note that the parties' calculations of appellant's income are improperly based on 1995 tax tables. See 26 U.S.C.A. § 1 (West Supp. 1996) (new tax tables effective for tax years starting in 1996). If, on remand, the trial court uses tax tables in finding appellant's income, they must be current tables. See Minn. Stat. § 518.551, subd. 5(b) (use of tax tables recommended in finding net income for support purposes); Thomas v. Thomas, 407 N.W.2d 124, 127 (Minn. App. 1987) (court must determine "current net income for the purposes of setting child support").[1]

Respondent notes that the courts have recognized the difficulty of finding a self-employed farmer's net monthly income. While we do not disagree with respondent's observation, the cases she cites involve difficulty in estimating the income figure against which the statutory deductions are allowed and to which the tax tables are applied. Here, the trial court found such a figure but, without explaining why, neither specifically addressed the statutory deductions nor applied the tax tables as recommended by statute. 2. Appellant claims that the trial court erred by not awarding him nonmarital interests in the farm and cattle. We disagree. The trial court has broad discretion to divide property. Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983). Property acquired by either spouse during a marriage is presumptively marital. Minn. Stat. § 518.58, subd. 5 (1994). Whether property is nonmarital is a legal question we review de novo but the trial court's findings of fact underlying a ruling on whether property is nonmarital are not set aside unless clearly erroneous. Johnson v. Johnson, 388 N.W.2d 47, 48-49 (Minn. App. 1986). The nonmarital nature of property must be shown by a preponderance of the evidence. Id. at 49.

Appellant claims that respondent fraudulently induced appellant's father to put respondent's name on the documents conveying the farm by threatening to divorce appellant if her name were not put on those documents and by promising to put appellant's name on her assets. We find no merit in appellant's argument that the trial court erred in not relying on parol evidence appellant presented regarding the farm conveyance. Appellant's claims of fraud were implicitly denied when the trial court found the property to be marital.[2]

Appellant also claims that respondent's representations constituted an agreement for support and that parol evidence is admissible to show consideration for a deed when the consideration is an oral agreement for support. This case does not involve an agreement for support. See Fritz v. Fritz, 377 N.W.2d 20, 22-23 (Minn. App. 1985) (agreement for support entails a conveyance of property in exchange for promise by recipient to provide for grantor during grantor's life), review denied (Minn. Jan. 23, 1986). Naming appellant as co-owner of respondent's assets would not necessarily have conveyed anything. See Berry v. Breslain, 352 N.W.2d 516, 518 (Minn. App. 1984) (form of property ownership is not dispositive of its marital or nonmarital nature), review denied (Minn. Nov. 8, 1984). Also, appellant does not claim that respondent promised to provide for him during his life and the enforceability of a contract to stay married in exchange for a property interest is suspect. See United Steelworkers of Am., Local 6115 v. Quadna Mountain Corp., 435 N.W.2d 120, 123 (Minn. App. 1989) (addressing court's ability to rule contracts void as against public policy), review denied (Minn. Mar. 29, 1989).

Appellant claims that because the bill of sale states that the parties bought a half interest in the cattle, the testimony of appellant's father that he gifted a 25 percent interest in the cattle to appellant should have been considered.[3] See Minn. Stat. § 518.54, subd. 5(a) (1994) (nonmarital property includes property acquired during a marriage by gift from a third party to one spouse but not the other). By finding that the purpose of the bill of sale was "to transfer all of [appellant's parents'] interest in any remaining cattle to the parties," the trial court apparently concluded that the bill of sale did not completely represent the cattle conveyances. The record regarding the cattle is confusing and disputed, but the trial court's finding is consistent with respondent's testimony that the parties already had a 25 percent interest in the cattle before the bill of sale was signed and that appellant's father gifted the parties another 25 percent interest in the herd for their work on the farm. On this record, we cannot say that the trial court clearly erred in finding that the purpose of the bill of sale was to convey all of appellant's parents' interest in the cattle to the parties. A similar analysis addresses appellant's claim that his father gifted to him alone an interest in the land.

Appellant challenges the requirement that he pay respondent $94,823.89 by August 1, 1996, noting that respondent sought a payout period of 10 years and that making the accelerated payment will require him to suffer tax consequences not addressed by the trial court. Respondent agrees that the payout was to be pursuant to a payment plan and seeks a remand to establish a more appropriate plan. On remand, the trial court shall adopt a payout period similar to the one the parties proposed or consider the tax implications of the accelerated payout period and adjust the property division accordingly. See Aaron v. Aaron, 281 N.W.2d 150, 153 (Minn. 1979) (when sale of real estate "is required or likely to occur" shortly after a dissolution, tax implications should be considered).

Appellant claims the trial court should have offset his property award by the debts apportioned to him because those debts were outstanding when the parties separated or were incurred after separation to run the farm. Debt apportionment is reviewed as part of the property division. Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986), review denied (Minn. May 29, 1986). A party may be ordered to pay all marital debts. See Yackel v. Yackel, 366 N.W.2d 382, 385 (Minn. App. 1985). The debt apportionment is consistent with respondent's status as the unemployed custodian of the children, her claim that when she stopped keeping the farm records most debts were paid, and her concession that she should not get her property settlement payment on the accelerated schedule ordered by the trial court. It is also consistent with appellant's control over the farm income during the separation and respondent's testimony that the farm generally paid for itself. We find no error in the trial court's apportionment of debt.

We find no merit in appellant's challenge to the award to himself of a condominium time-share interest at the value he put on that interest in his post-trial motion. If appellant does not want the interest, he can sell it. See Minn. R. Civ. P. 61 (harmless error ignored).

Appellant seeks compensation under Minn. Stat. § 518.58, subd. 1a (1994) for property he claims respondent secreted from the marital estate. We defer to the trial court's finding that appellant submitted "no credible evidence" to support this claim. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).[4] Further, addressing appellant's claims would not require reversal of the trial court. See Stiff v. Associated Sewing Supply Co., 436 N.W.2d 777, 779-80 (Minn. 1989) (where evidence conflicts, appellate court will not alter trial court findings merely because appellate court might have found facts differently in the first instance).

3. The transcript provided on appeal supports the parties' claims that the visitation schedule set by the trial court varied from the one to which they stipulated. On remand, the visitation schedule shall be adjusted to reflect the parties' agreement.[5]

Affirmed in part, reversed in part, and remanded.

[ ]* 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 We reject respondent's claim that appellant is not entitled to a deduction for medical costs because he did not present that claim at trial. Exhibit 30, appellant's calculation of his net monthly income, includes a medical deduction.

[ ]2 To the extent that the trial court did not directly address appellant's fraud claim in the dissolution judgment, it did specifically deny post-trial motions in which appellant specifically raised that claim. See generally Nelson v. Dorr, 239 Minn. 423, 432, 58 N.W.2d 876, 881 (1953) (denial of a motion for amended findings is equivalent to an adverse finding on the issue presented).

[ ]3 The bill of sale also states that appellant's father forgave part of the cattle's purchase price. Appellant claims that because the bill of sale does not name the person to whom the forgiveness is granted, he is entitled to the forgiveness based on the testimony of his father. It is unclear how the bill of sale can convey cattle to two people but grant forgiveness of part of the purchase price to only one of the people to whom the cattle were conveyed.

[ ]4 Appellant relies on Johnson to argue that he met his burden of proof. There, "the credibility of the witnesses [was] determinative." 392 N.W.2d at 924. Here, the trial court resolved the credibility questions against appellant.

[ ]5 The parties appear to be in agreement not only on the issue of visitation, but on the issue of the payment period for the $94,823.89 property settlement. In the interest of minimizing the financial impact on both parties upon remand, we urge them to confer through counsel and to present these issues as stipulated matters for incorporation into the trial court's remand order and amended judgment.