This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).




In Re the Marriage of:

Sally A. Serier, f/k/a Sally A. O'Neal, petitioner,



John L. O'Neal,


Filed December 10, 1996


Klaphake, Judge

Washington County District Court

File No. F9-95-2541

Mark J. Vierling, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1835 Northwestern Avenue, Stillwater, MN 55082 (For Appellant)

Tracey Ann Galowitz, Lawson, Marshall, McDonald & Galowitz, P.A., 3880 Laverne Avenue North, Lake Elmo, MN 55042 (For Respondent)

Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Davies, Judge.



In this post-dissolution appeal, appellant John L. O'Neal challenges the district court's property division and maintenance award to respondent Sally A. Serier. Respondent challenges aspects of the property distribution and seeks attorney fees. Because the district court's rulings were within its discretion, we affirm. Because respondent did not file a notice of review regarding her property claims, we do not address those issues. We also deny respondent's request for attorney fees.


1. Maintenance Award

The district court did not abuse its discretion by refusing to recalculate appellant's income based on a claim he did not make until his post-judgment motion. See Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974) (district court may not go outside record or consider new evidence in deciding motion for amended findings); Minnesota Mut. Fire & Cas. Co. v. Retrum, 456 N.W.2d 719, 723 (Minn. App. 1990) (district court properly denied new trial motion raising issue for first time).

Additionally, the trial court did not abuse its discretion by rejecting appellant's claim that his expenses should have included a mortgage payment. Appellant argues he necessarily took the mortgage to be able to make a substantial property payment to respondent. As the district court noted, however, appellant had "other assets" from which he could have satisfied the property payment.

Regarding calculation of respondent's income and expenses, the district court did not err in excluding amounts she could have earned from her property award. The record established that she intended to use a significant portion of her property award to purchase a house, making that amount unavailable for investment. Her other unpledged earnings are nominal. Additionally, because the district court noted but did not adopt appellant's claim that some of respondent's expenses were excessive, we defer to its finding on her expenses. See Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) (appellate courts defer to district court findings based on conflicting affidavits). The record supports the district court's findings on the parties' income and expenses, and we observe no abuse of discretion in the trial court's decision to award maintenance. See Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).

Appellant claims that because respondent's retraining will not enable her to become self-sufficient, the maintenance award should not include the cost of her retraining. Respondent's affidavit states, however, that she is "confident" her retraining will allow her to become self-sufficient and estimates a post-retraining wage range allowing for her self-sufficiency. Thus, the district court did not abuse its discretion in awarding temporary maintenance including the cost of her retraining. See Nardini v. Nardini, 414 N.W.2d 184, 198 (Minn. 1987) (temporary maintenance assumes recipient will attempt to obtain suitable and self-supporting employment).

2. Property Division

The district court must make an equitable division of marital property and has broad discretion to do so. Minn. Stat. § 518.58, subd. 1 (1994); Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983). The district court's post-judgment order rejected appellant's claim that an offset covering the value of the parties' vehicles was excessive. Any such inequality in the property division, even if true, does not make the total property division inequitable. See White v. White, 521 N.W.2d 874, 878 (Minn.App. 1994) (property division must be just and equitable, not equal).

Respondent's submissions also support the district court's collective valuation of certain personal property at $7,500. See Bury v. Bury, 416 N.W.2d 133, 136 (Minn. App. 1987) (parties' testimony may establish value of their assets). The court awarded the property to appellant and awarded respondent a $7,500 offset. Appellant claims that because respondent took other property from the house, some of which he claims as nonmarital, respondent is not entitled to the $7,500 offset. Again, because we conclude that the overall property division was equitable, we will not alter it on appeal, especially where appellant admitted that he was aware respondent took property from the house and that he "allowed her to take those items at that time."

Further, we will not reverse the district court's award of half of the bedroom set to respondent. See Minn. Stat. § 518.58, subd. 1 (district court may award either party household goods and furniture).

Without having filed a notice of review, respondent also challenges aspects of the property distribution. We decline to strike her brief as appellant requests, but we do not consider respondent's claims. See Watson v. Watson, 379 N.W.2d 588, 591 (Minn. App. 1985) (appellate court declines to decide respondent's challenge to a property award not raised by notice of review).

3. Attorney Fees

Respondent's request to this court for attorney fees incurred in the posttrial proceedings is untimely. Pekarek v. Wilking, 380 N.W.2d 161, 165 (Minn. App. 1986). Therefore, we deny it. We also deny her request for attorney fees on appeal.