This opinion will be unpublished and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

C9-96-688

In Re the Marriage of:

Mary J. Martin, petitioner,

Respondent,

vs.

Kevin L. Martin,

Appellant.

Filed November 26, 1996

Affirmed in part, Reversed in part, and Remanded

Kalitowski, Judge

Ramsey County District Court

File No. F0942367

Maury D. Beaulier, Crosby & Associates, P.A., 25 Empire Drive, St. Paul, MN 55103 (for Respondent)

Allan P. Salita, 206 Brooklyn Crossing, 3300 County Road 10, Brooklyn Center, MN 55429 (for Appellant)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

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

KALITOWSKI, Judge

In an appeal from the judgment and decree of dissolution, Kevin L. Martin challenges the trial court's deduction of the costs of sale in determining the value of the homestead, the imputation of the value of certain savings bonds to appellant, and the award of attorney fees to respondent Mary J. Martin. Respondent filed a notice of review challenging the trial court's refusal to consider appellant's worker's compensation award in determining his child support obligation. We affirm the property division and the award of attorney fees, but reverse and remand the determination of child support for consideration of appellant's worker's compensation award.

D E C I S I O N

Because this appeal is taken directly from the judgment and neither party brought a motion for a new trial, our review is limited to whether the evidence sustains the findings of fact and conclusions of law. See Tyroll v. Private Label Chems., 505 N.W.2d 54, 56 (Minn. 1993).

I.

The trial court has broad discretion over the division of marital property and will not be overturned on appeal except for a clear abuse of discretion. Bogen v. Bogen, 261 N.W.2d 606, 609 (Minn. 1977). The trial court's division of property must be affirmed if it has an acceptable basis in fact and principle, even though the appellate court may have taken a different approach. Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984).

(a) Valuation of the Homestead

The parties presented four appraisals of the homestead, with valuations ranging from $72,000 to $88,000. The trial court accepted one of the appraisals as the most credible and determined that the value of the homestead is $82,000. The court awarded the homestead to respondent. The court found that it is "fair and equitable" that respondent only be credited with the value of the net proceeds if the property is sold. After deducting the current mortgage balance of $60,300 and $8,287 in closing costs, the court determined that the net value of the homestead is $13,413.

Appellant contends that the trial court abused its discretion in deducting the costs of sale, because there is no indication in the record that respondent intends to sell the house. We disagree.

The trial court is afforded broad discretion in making valuation decisions. Letsch v. Letsch, 409 N.W.2d 239, 242 (Minn. App. 1987). Although the trial court was not required to consider the costs of sale, we cannot say it was an abuse of discretion to do so, in view of the parties' respective financial circumstances and the overall property division. See Ruzic v. Ruzic, 281 N.W.2d 502, 505 (Minn. 1979) (division of marital property need not be mathematically equal; it need only be just and equitable).

(b) Savings Bonds

Respondent testified that the parties invested in savings bonds with a total value of $15,000. She stated that appellant removed the bonds from the homestead after the parties' separation and that she has not seen them since that time or received any of the proceeds from the bonds. Appellant testified that he removed some, but not all, of the bonds from the homestead. Appellant stated that in April 1994, he received $5,100 for cashing in certain bonds, and that he used the money to pay marital debts. Respondent testified that no marital debts were paid with the proceeds from the bonds. The trial court imputed $5,000 to appellant for the bonds that were cashed in April 1994, and imputed an additional $3,350 to appellant to reflect the value of missing bonds.

If the court finds that a party, in contemplation of commencing or during the pendency of a dissolution action, has disposed of marital assets without the consent of the other party, except in the usual course of business or for necessities of life, the court shall compensate the other party by placing both parties in the same position that they would have been in had the disposal not occurred. Minn. Stat. § 518.58, subd. 1a (1994). In compensating a party, the court, in dividing the marital property, may impute the entire value of an asset to the party who disposed of it. Id. The burden of proof is on the party claiming that the other party improperly disposed of the asset. Id.

Appellant argues that respondent did not show that his use of $5,000 in savings bonds cashed in April 1994 was in contemplation of commencing the dissolution action. Appellant points out that respondent did not commence the dissolution action until July 1994. But respondent testified that she contacted an attorney in July 1993 to start the dissolution. Further, appellant deposited the proceeds from the bonds that he cashed in April 1994 into a separate bank account that he had opened with a third person, whom the record identifies as appellant's girlfriend. We conclude the record shows the parties were "in contemplation of commencing" the dissolution action when appellant cashed in certain savings bonds in April 1994. See Minn. Stat. § 518.58, subd. 1a.

Appellant also contends respondent did not meet her burden to show that he dissipated marital assets. Dissipation is "frivolous, unjustified spending of marital assets." Volesky v. Volesky, 412 N.W.2d 750, 752 (Minn. App. 1987). The parties presented conflicting testimony regarding the use of the $5,000 proceeds from the bonds that were cashed in April 1994. The court credited respondent's testimony that no marital debts were paid from the proceeds of the bonds, and found that appellant failed to account for the proceeds with either canceled checks or evidence of debt satisfaction. Because there is evidence in the record to support a finding that appellant did not use the proceeds from the bonds to meet the parties' financial obligations, the trial court did not abuse its discretion in imputing $5,000 to appellant for the bonds. See General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987) (appellate court must defer to the trial court's assessment of credibility of witnesses and the weight to be given to their testimony).

Similarly, we defer to the trial court's resolution of the parties' conflicting testimony on the issue of the missing bonds. The trial court's finding that appellant removed the remaining bonds from the homestead at the time the parties separated and that he has failed to account for bonds with a total value of $3,350 is supported by respondent's testimony and documentary evidence submitted by respondent. Because the record supports a finding that appellant failed to account for the missing bonds, the trial court did not abuse its discretion in imputing the value of the bonds to appellant. See Minn. R. Civ. P. 52.01 (trial court's findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous); Kennedy v. Kennedy, 403 N.W.2d 892, 897 (Minn. App. 1987) (appellate court must view the evidence in the light most favorable to the trial court's findings).

II.

The trial court awarded respondent $3,000 in attorney fees, based on a finding that appellant has significant liquid resources and respondent does not, and appellant has the ability to contribute to respondent's attorney fees. Appellant argues that the attorney fees award is an abuse of discretion because respondent did not present any proof of her attorney fees and respondent's income is greater than appellant's when appellant's child support obligation is considered.

The court shall award attorney fees in a dissolution action provided it finds that the fees are necessary for the good faith assertion of the parties' rights in the proceeding, that the party from whom fees are sought has the means to pay them, and that the party to whom fees are awarded does not have the means to pay them. Minn. Stat. § 518.14, subd. 1 (1994). In this case, respondent's testimony regarding the amount of her outstanding attorney fees provided a sufficient basis for the award. See Hortis v. Hortis, 367 N.W.2d 633, 637 (Minn. App. 1985) (trial court may award fees absent an itemized list of charges where there is testimony as to fees incurred and the court has observed the services rendered by the attorney). Based on the totality of the trial court's findings, we are satisfied that the trial court properly considered the parties' respective financial circumstances in determining the issue of attorney fees. In view of the trial court's very broad discretion in this area, appellant has not established a basis for reversal of the attorney fees award. See Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977) (allowance of attorney fees rests almost entirely in the discretion of the trial court).

III.

Appellant received a worker's compensation award totaling approximately $35,000 for an injury he incurred as a result of a fall at his workplace. Appellant took two days of sick leave as a result of the accident, but otherwise did not miss any work. Appellant received an initial payment of $11,164.93 to cover the period from February 22, 1994, to July 23, 1994, and continued to receive checks for $2,059.80 every four weeks until the end of the compensation period.

Respondent challenges the trial court's refusal to consider appellant's worker's compensation award in determining his child support obligation. The trial court found that the worker's compensation proceeds are entirely appellant's nonmarital property, because the benefits were based on the impairment to appellant's use of his left arm, rather than compensation for wages lost because of injury.

We agree with the trial court that appellant's worker's compensation award is his nonmarital property. See Gerlich v. Gerlich, 379 N.W.2d 689, 691 (Minn. App. 1986) (money obtained for injuries personal to a spouse is nonmarital property), review denied (Minn. Mar. 21, 1986). But Gerlich does not address the issue of whether payments for a personal injury award constitute income for calculation of child support.

Whether a source of funds is income for purposes of determining child support is a question of law. Watson v. Watson, 379 N.W.2d 588, 590 (Minn. App. 1985). When reviewing questions of law, this court need not defer to the trial court. Id. Income for child support purposes means "any form of periodic payment to an individual," including worker's compensation payments. Minn. Stat. § 518.54, subd. 6 (1994).

Periodically paid impairment compensation constitutes income in calculating child support. Herrley v. Herrley, 452 N.W.2d 711, 713 (Minn. App. 1990). Worker's compensation payments are included in the definition of "income" under Minn. Stat. § 518.54, subd. 6, without differentiation between disability or impairment income. Id. Moreover, the court is required to take into account all earnings and resources as well as income when setting or modifying child support. Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993). Because the trial court erred in refusing to consider appellant's worker's compensation award in calculating his child support obligation, we reverse and remand for redetermination of child support.

Affirmed in part, reversed in part, and remanded.