This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-448

In re the Marriage of:

Bruce Engebretson, petitioner,

Appellant,

vs.

Julie Engebretson,

Respondent.

Filed December 10, 1996

Affirmed

Randall, Judge

Otter Tail County District Court

File No. F8-94-2023

John A. Hatling, Hatling Law Office, 1005 Pebble Lake Road, Box 205, Fergus Falls, MN 56538 (for appellant)

Rolf H. Nycklemoe, Nycklemoe & Ellig, 106 E. Washington, P.O. Box E, Fergus Falls, MN 56538-0960 (for respondent)

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Randall, Judge.

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

RANDALL, Judge

Appellant challenges the district court's decision on appellant's petition for dissolution of marriage, award of custody, and division of property. We affirm.

FACTS

Appellant Bruce Engebretson and respondent Julie Engebretson were married on June 20, 1987. The Engebretsons gave birth to their daughter, K., on February 11, 1989. Shortly after K.'s birth, appellant suffered a disabling, work-related back injury. As a result of his injury, appellant received a disability insurance payment of $5,300 and a workers' compensation award of $4,300. The parties used these sums to make home repairs and improvements, buy a used pickup truck, and cover other household expenses.

Appellant has not worked outside of the home since his injury. Until June, 1994, when respondent obtained an order granting her temporary custody of K., appellant stayed home with K. during the day, while respondent worked outside of the home. Appellant currently receives $603 per month in combined disability and social security payments. Respondent receives monthly after-tax income of approximately $800 and has acquired an interest in a work-related pension plan worth $4,500.

The parties bought their home for $42,000 on Oct. 20, 1990. At the time of the purchase, respondent's grandfather gave respondent $5,500, which the parties applied to the cost of their home and the court found to be a nonmarital gift. The parties currently owe more than $44,000 under two mortgages on their home, which the court found to be worth no more than $40,000, in effect finding that the home had no equity. The HRA will forgive one of the mortgages, in the amount of $10,000, if at least one of the parties occupies the home until the year 2004.

Appellant petitioned the district court in forma pauperis for dissolution of his marriage with respondent, an award of physical custody of the parties' child, and division of the parties' marital estate. The district court issued an order dissolving the parties' marriage, awarding physical custody of the child to respondent, and awarding the parties' home to respondent. Appellant moved for amended findings and conclusions and for a new trial. The district court amended its earlier findings and conclusions to reflect a decrease in appellant's income, and reduced appellant's child support obligation accordingly, but denied appellant further relief.

Appellant sought review of the district court decision in forma pauperis. The district court denied appellant in forma pauperis status on appeal on the ground that appellant failed to establish that his appeal was not frivolous.

D E C I S I O N

A trial court has broad discretion to provide for custody of marital children, divide marital property, and award spousal maintenance. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). A trial court abuses its discretion only where it makes a clearly erroneous conclusion contrary to logic and the facts on record. Id. A reviewing court must examine the trial court record in the light most favorable to the trial court's findings. Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993).

1. Appellant argues that the district court erred in awarding physical custody to respondent because the court based its award on a clearly erroneous finding that respondent is K.'s primary caretaker, and disregarded appellant's claims of abuse. Under Minnesota law, a court must consider numerous factors in determining the best interests of a child and awarding physical custody. See Minn. Stat. § 518.17, subd. 1(a) (1994) (listing thirteen factors relevant to best interests of child). Although a court may not use the primary caretaker factor as a proxy for the best interests of a child, Minn. Stat. § 518.17, subd. 1(a), where the evidence shows that both parents are acceptable custodians and the child is too young to express a preference, courts will often award custody to the primary caretaker. See Maxfield v. Maxfield, 452 N.W.2d 219, 222 (Minn. 1990) (holding that primary caretaker factor is not to be applied mechanically, but in light of all the relevant statutory factors).

Here, the district court made findings on each of the statutory factors and found, inter alia, that: (1) both parents had an intimate and loving relationship with K.; (2) K. was too young to express a preference on her custody; (3) respondent was K.'s primary caretaker; and (4) appellant failed to substantiate his allegations that K. was abused while in respondent's custody. Based on its consideration of the statutory factors, the court determined that the award of custody to respondent was in K.'s best interests.

Appellant argues that the district court erred in finding that respondent served as K.'s primary caretaker. We disagree. Respondent had sole custody of K., and therefore served as her primary caretaker, for at least the six months before the parties' dissolution proceedings began. Before respondent assumed sole custody, the parties lived together with K. During this period, appellant stayed home during the day and supervised K., while respondent worked outside the home but continued to prepare meals for K., bathe her, do her laundry, schedule her medical visits, and enroll her in preschool. On this record, the district court did not abuse its discretion in finding that respondent served as K.'s primary caretaker.

Appellant further asserts that his allegations of abuse require reversal of the district court's custody award. Appellant cites Sucher v. Sucher, 416 N.W.2d 182 (Minn. App. 1987), review denied (Mar. 18, 1988), for the proposition that

where there is some evidence that custody with one parent has resulted in some evidence of child abuse and that there is less than exemplary behavior on the part of those with whom such parent is acquainted, that custody should be placed with the other parent.

We decline to apply the Sucher rationale because Sucher, unlike this case, involved egregious, substantiated misconduct. Here, the district court considered the factors relevant to a custody award, did not err in finding that respondent served as K.'s primary caretaker, and did not err in finding appellant's claims of abuse unsubstantiated.

2. Appellant argues that the district court abused its discretion in failing to award spousal maintenance to appellant. Under Minnesota law, a court may award maintenance to either spouse if it finds that the spouse seeking maintenance cannot maintain the marital standard of living or otherwise provide adequate self-support. Minn. Stat. § 518.552, subd. 1 (1994). Subdivision 2 of section 518.552 requires that a court awarding spousal maintenance consider all factors relevant to the proper amount and duration of maintenance. Id., subd. 2(g) (1994). The essential consideration in a maintenance award is the ability of the party requesting maintenance to meet his needs, balanced against the financial condition of the spouse from whom maintenance is requested. Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).

In this case, the district court denied appellant maintenance without specifically finding that appellant had failed to meet the criteria of subdivisions 1(a) or 1(b). Appellant, however, failed to show, or even argue, that he lacked sufficient property or income to support himself. The court did make findings on the parties' income, and we have to conclude the district court properly considered the parties' relative ability to meet their own needs because the court stated that no disparity in income existed to justify spousal maintenance for either party. The district court could have properly awarded appellant maintenance on this record, but it did not abuse its discretion in declining to do so.

3. Appellant argues that the district court abused its discretion in awarding the marital home to respondent and failing to award appellant a share of respondent's pension benefits. In a dissolution proceeding, a district court must divide marital property in a just and equitable manner. Minn. Stat. § 518.58, subd. 1 (1994). The court may divide marital property only after considering all relevant factors. See id. Subject to certain exceptions not relevant here, marital property includes real estate and vested pension plan benefits acquired by the parties at any time during the marriage. Minn. Stat. § 518.54, subd. 5 (1994); see also Elliot v. Elliot, 274 N.W.2d 75, 77 (Minn. 1978) (holding that pension benefits are property for purposes of division of marital property).

The court did not expressly state that it awarded the marital home to respondent or declined to award appellant a share of respondent's pension benefits based on consideration of the above factors. But the court's findings of fact show that the court considered the relevant factors.

4. Appellant next contends that the district court abused its discretion by declining to award appellant his nonmarital interests in his personal injury claims. Appellant cites Ward v. Ward, 453 N.W.2d 729 (Minn. App. 1990), review denied (Minn. June 6, 1990), for the proposition that in a dissolution proceeding, a court should treat personal injury settlements as nonmarital and award them to the settling spouse. While the Ward court did hold that courts should treat certain personal injury settlements as nonmarital, it also held that property acquired during marriage is presumed marital, that the marital or nonmarital status of settlement monies depends on their purpose, and that the burden lies on the party seeking nonmarital classification to justify such treatment. Id. at 732. Thus a court will treat a settlement as nonmarital only if the party seeking such classification establishes that the settlement was intended to compensate for personal injuries, and not for lost wages. See, e.g., Hafner v. Hafner, 406 N.W.2d 590, 593 (Minn. App. 1987) (holding that the burden of proving recovery for personal injuries is nonmarital in nature is on party seeking such classification).

Here, appellant entered into his personal injury settlement during marriage. He did not present any evidence at trial that the settlement was intended to compensate him for personal injuries rather than lost wages. Consequently, the court properly treated appellant's injury claims as marital property by simply taking them into account in the division of marital property, and did not abuse its discretion in declining to somehow segregate out the claims and award them solely to appellant.

5. Appellant argues that the district court abused its discretion in finding that appellant failed to establish that his appeal was not frivolous for the purposes of in forma pauperis status. A court may grant in forma pauperis status only where the petitioner establishes his indigence and that his appeal is not frivolous. Minn. Stat. § 563.01, subd. 3 (1994); see, e.g., Maddox v. Department of Human Services, 400 N.W.2d 136, 139-40 (Minn. App. 1987) (affirming denial of in forma pauperis status on frivolous appeal). "The trial court has broad discretion in determining whether expenses of the appeal should be paid under Minn. Stat. § 563.01, subd. 3." 400 N.W.2d at 139 (citing Thompson v. St. Mary's Hospital, 306 N.W.2d 560, 563 (Minn. 1981)).

In this case, the court found that appellant was indigent, but that he failed to show that his appeal was not frivolous. We agree that appellant failed to sustain his burden here, and that the court did not abuse its discretion in finding appellant not entitled to proceed in forma pauperis on appeal.

Affirmed.