This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-728

In re the Marriage of:

Susan Marie Klang, petitioner,

Appellant,

vs.

James Kenneth Klang,

Respondent.

Filed December 17, 1996

Affirmed as modified

Randall, Judge

Dakota County District Court

File No. F2-95-14463

John R. Kempe, McCullough, Smith & Wright, P.A., 905 Parkway Drive, St. Paul, MN 55106 (for Appellant)

Lisa M. Amundson, Dudley and Smith, P.A., 2602 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 (for Respondent)

Considered and decided by Randall, Presiding Judge, Short, Judge, and Davies, Judge.

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

RANDALL, Judge

Appellant argues the trial court erred in denying her temporary spousal maintenance or, alternatively, in refusing to reserve the issue. Appellant also contends the trial court erred in not making specific findings on the statutory factors governing maintenance, and in imputing appellant's income without evidence of motive or bad faith. Appellant further challenges the trial court's allocation of the minor children's uninsured medical expenses, arguing the trial court erred as a matter of law when it ordered the parties to share equally the payment of those uninsured expenses. Lastly, appellant argues the trial court improperly classified appellant's IRA funds as marital and improperly awarded income tax exemptions for the parties' minor children to respondent, the noncustodial parent. We affirm as modified.

FACTS

The parties were married May 19, 1973, and on January 18, 1996, the trial court dissolved the parties' marriage. They have three children born during this marriage, including two minors, ages 15 (d.o.b. 10/9/81) and 12 (d.o.b. 2/12/84). The trial court awarded the parties joint legal custody and granted appellant sole physical custody of the minor children, subject to visitation by respondent. Respondent was ordered to pay child support of $1,352.98 each month and to pay for health and dental insurance for the parties' minor children while it is available through his employer. The trial court directed the parties to equally divide the cost of any uninsured health or dental expenses for the minor children. The trial court further ordered that respondent would be entitled to claim the parties' children on his state and federal income taxes beginning with his 1995 tax returns.

Respondent is employed by GNB Technologies. As determined by the trial court, respondent has a net monthly income of $3,865.67. Respondent reported his monthly expenses as over $3,500; however, the trial court concluded that including child support he has reasonable monthly expenses of approximately $2,900. Appellant is a registered nurse employed on call with Dakota County and HealthSpan. Her net income each month is $1,464.39, while her gross annual income in 1994 was $25,734.41. Although appellant estimated her and the children's monthly expenses to be $3,752, the trial court approximated reasonable monthly living expenditures for appellant and the children to be $3,100.

Appellant completed a three-year degree in nursing in 1971, and she has taken continuing education courses throughout her career. Additionally, she took a word processing course in 1986 and a math course in 1994. With the exception of a five year period from 1981-1986, appellant has been employed in a full or part-time position throughout the parties' marriage.

Appellant visited two different Vocational Rehabilitation and Employment Consultants prior to trial. Appellant's consultant recommended appellant be afforded the opportunity to complete course work for a four-year nursing degree at Bethel College, which would, he opined, allow appellant to earn a salary averaging $30,000 to $41,000 in addition to benefits. Appellant's consultant also determined appellant is currently employable as a registered nurse in a full or part-time capacity. Respondent's consultant reported that there is full-time employment available for registered nurses regardless of whether they have three or four-year degrees. Additionally, respondent's expert presented findings showing that employment opportunities open to appellant ranged in salary from $33,500 to $44,179. The trial court determined that appellant does not need additional training to find full-time employment, and that appellant is not entitled to maintenance from respondent.

D E C I S I O N

I.

The trial court has discretion in awarding spousal maintenance, and the standard of review in such cases is an abuse of that discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). Unless findings of fact concerning spousal maintenance are "clearly erroneous" they must be upheld on appeal. Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992). Additionally, unless the trial court's conclusions are "clearly erroneous" and "against logic and the facts on the record" no abuse of discretion will be found. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

The trial court concluded that with appellant's current educational background she is capable of earning a self-supporting income through employment as a nurse. Both appellant and respondent's employment consultants concluded that appellant is currently employable on a full-time basis. The trial court cited the opinion of respondent's consultant who determined that appellant has the potential to earn $33,500 to $44,179. The trial court did not abuse its discretion by adopting these figures as salaries feasibly available to appellant. These figures are supported by evidence in the record.

Appellant argues the parties had a traditional marriage and she sacrificed her career for the marriage. She does not contend, however, that she will not be able to obtain full-time employment now. Rather she contends she will not be able to find a full-time position which does not require working weekend or night shifts. Appellant could cite to no authority supporting a proposition that a trial court errs when it considers the availability of reasonable work rather than just those shifts that someone agrees to take out of personal preference. We cannot say the trial court erred when it considered the availability of work that involved some weekend and night shift hours. Appellant argues her age is a factor in her desire not to work late at night. Appellant is 46 years old and agrees she is in normal health with no physical limitations. This court is not prepared to say that 46-year-old men and women, by virtue of the fact of their age alone, possess a built-in physical limitation which prevents them from being considered for some late night hours. Appellant is a registered nurse. This court is not prepared to state that 46-year-old registered nurses are less able to work afternoon and night shifts than registered nurses age 45 and younger.

Appellant argues that she cannot maintain the parties' standard of living without maintenance. The trial judge detailed the value of the parties' property, finding that the couple lived in a home with a fair market value of $210,000, owned 1993 and 1986 vehicles and were leasing a 1994 vehicle, and had personal property and checking and savings accounts with a total value of approximately $10,600. The couple's other assets include pensions, IRAs, and insurance policies. None of these figures indicate that the couple maintained a "high" standard of living.

Based upon the record, we conclude the trial court acted within discretion by not awarding maintenance to appellant or by not reserving this issue.

Appellant contends the trial court erred in failing to provide particularized findings confirming the court's consideration of the statutory criteria governing determination of maintenance issues. Appellant further contends the trial court erred in imputing appellant's income without evidence of motive or bad faith by appellant.

"Effective appellate review of the exercise of [the trial court's broad] discretion is possible only when the trial court has issued sufficiently detailed findings of fact to demonstrate its consideration of all factors relevant to an award of permanent spousal maintenance." Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989). Findings and conclusions should "always [be] detailed, specific and sufficient enough to enable meaningful review by this court." Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).

In the present case, the trial judge initially did not make any specific findings about the parties' expenses except to say that their reported expenses were exaggerated. After appellant brought a motion for review, questioning this lack of particularized findings, the trial judge amended the Findings of Fact to state that appellant's and respondent's reasonable expenses are $3,100 and $2,900, respectively, including support for the children. The amended Findings of Fact by the trial judge do provide findings on each party's net income and on the reasonable expenses of each party. These findings indicate the trial judge considered the needs and financial abilities of appellant and respondent.

Contrary to appellant's contentions, the trial court did not need to find she acted in bad faith before using her earning capability rather than her current net income to determine whether maintenance was warranted. The trial court is required to consider "the party's ability to meet needs independently." Minn. Stat. § 518.552, subd. 2(a) (1996). This court has stated that in determining maintenance awards, the key consideration is the financial need of the party seeking maintenance and that party's capability to satisfy those needs weighed against the financial situation of the party from whom maintenance is being sought. Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992), review denied (Minn. March 19, 1992). There is no requirement that the trial court consider only the current net income of a party seeking maintenance. A party quitting or cutting back on employment just prior to the dissolution hearing would unfairly skew every dissolution if it were that simple.

The trial court's findings were sufficient to facilitate appellate review. Further, the trial court was not required to find bad faith by appellant, as a matter of law, before denying her request for maintenance.

II.

Appellant argues the trial court erred as a matter of law in ordering the parties to share equally in the payment of their minor children's uninsured medical expenses. We disagree.

Minnesota law requires that "if the obligee * * * has the financial ability to contribute to the cost of medical and dental expenses for the child, including the cost of insurance, the court shall order the obligee and obligor to each assume a portion of these expenses based on their proportionate share of their total net income * * * ." Minn. Stat. § 518.171, subd. 1(d) (1996). The statute states that both the cost of insurance and the cost of uninsured medical expenses should be considered in apportioning the expenses to be paid by the parties.

Here, the trial judge ordered respondent to continue providing 100 percent of the minor children's health and dental insurance. Then and only then were both parties ordered to equally apportion the children's uninsured medical expenses. Because the trial court ordered respondent to pay all health insurance for the minor children and to pay one-half the uninsured medical expenses, it is likely that respondent's combined court-ordered contributions will equal or exceed an amount proportionate to his income. We conclude the trial court properly handled this division in a manner fair to appellant.

III.

Appellant contends the trial court improperly classified the IRA in her name as marital property. On established facts, the classification of property as marital or nonmarital is a question of law which should be reviewed de novo. Wopata v. Wopata, 498 N.W.2d 478, 484 (Minn. App. 1993). However, on appeal the findings of fact used to determine "whose resources were used to acquire the assets" must be "set aside [only] if they are clearly erroneous." Swick v. Swick, 467 N.W.2d 328, 330 (1991), review denied (Minn. May 16, 1991).

Property acquired by either of the parties during their marriage is presumed to be marital property unless this presumption can be overcome. Minn. Stat. § 518.54, subd. 5 (1996). Minnesota Statutes state:

"Nonmarital property" means property real or personal, acquired by either spouse before, during, or after the existence of their marriage, which

(a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;

(b) is acquired before the marriage;

(c) is acquired in exchange for or is the increase in value of property which is described in clauses (a), (b), (d), and (e);

(d) is acquired by a spouse after the valuation date; or

(e) is excluded by a valid antenuptial contract.

Id. To maintain nonmarital property's character, it should not be commingled with marital property. Wopata, 498 N.W.2d at 484. If the property is commingled, the party attempting to prove the property is nonmarital must show by a preponderance of the evidence that the property is "readily traceable" to a nonmarital investment. Id.

Appellant argues her IRA should be considered nonmarital property because she received $18,000 from her family, and $8,000 of that money was deposited in her IRA. Other than appellant's own trial testimony there is little to support this contention. Appellant's trial exhibits show copies of checks labeled "gift" written to her and received from her family totaling $19,600 and receipts from deposits in her Dean Witter IRA totaling over $8,000. However, the dates of the checks she received and the dates of the deposits have no correlation. It is possible that the parties intended for the money from appellant's relatives to be used for her IRA. But it is appellant's burden to trace the funds to establish by a preponderance of the evidence that the funds were indeed nonmarital. The trial court did not err by concluding appellant failed to meet her burden of proof.

IV.

Appellant maintains the trial court erred as a matter of law in ordering that respondent is entitled to claim the parties' children as income tax exemptions. Appellant argues that federal law requires the custodial parent to make a clear waiver of the right to these exemptions and the trial court cannot grant this right of exemptions to the noncustodial parent.

The analysis is not that simple. Federal law requires the custodial parent receive the tax exemptions for the parties' children unless the custodial parent signs a written waiver and this waiver is attached to the noncustodial parent's tax return. 26 U.S.C. § 152(e) (1994). This court has recognized that a court order for the custodial parent to sign a waiver does not violate Congressional intent and has no impact upon the IRS and, therefore, such orders are not in conflict with federal law. Fudenberg v. Molstad, 390 N.W.2d 19, 21 (Minn. App. 1986).

The trial court here ordered that "[b]oth parties shall cooperate in signing the appropriate tax forms to effectuate the tax deduction awards" necessary to follow this order. Although the trial court did not specifically state appellant must sign a waiver, the language used by the court effectively conveys this intent. We conclude the trial court did not err in granting respondent tax exemptions for the parties' children.

A trial court "should make the custodial parent's execution of the [dependency exemption] waiver contingent upon receipt of support payments." Fudenberg, 390 N.W.2d at 21. Here, the trial court did not specifically condition respondent's grant of tax exemptions upon his payment of child support. However, respondent's attorney willingly conceded at oral argument that this requirement is built into the law and can be construed from the trial court's order with no prejudice to respondent. Thus, in accordance with an attorney's oral stipulation on the record, which we accept, we hold that respondent's right to claim the minor children as tax exemptions is contingent upon the reasonable payment of child support. We make this minor modification without remand.

Affirmed as modified.