This opinion will be unpublished and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:

Sandra Kay McKenzie, petitioner,



Alexander Lee McKenzie,


Filed December 3, 1996


Kalitowski, Judge

Beltrami County District Court

File No. F895104

Mary Kay Klein, Benshoof & Klein, P.A., 4 West Office Complex, Suite 220, 403 Fourth Street NW, P.O. Box 1390, Bemidji, MN 56619-1390 (for Appellant)

Carl Baer, Kief, Fuller, Baer & Wallner, 514 America Avenue, P.O. Box 880, Bemidji, MN 56601 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Kalitowski, Judge, and Harten, Judge.



On appeal from a dissolution judgment, appellant Sandra McKenzie (now Flom) challenges the trial court's ruling: (1) awarding computer hardware to Alexander McKenzie (McKenzie) and the McKenzie corporation; (2) valuing the homestead at $56,000 and failing to credit Flom with payments she made to preserve it; (3) failing to assess McKenzie for corporate funds that allegedly disappeared while under his control; and (4) finding the corporation owed German taxes, which included penalties and fees, and further ordering the corporation to pay $2,000 to McKenzie for future German taxes. We affirm.



A trial court has broad discretion in dividing property. There must be a clearly erroneous conclusion that is against logic and the facts on the record before this court will find that the trial court abused its discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

Flom alleges the trial court abused its discretion by awarding computer hardware to Alexander McKenzie and the McKenzie corporation because the hardware was purchased using Flom's nonmarital assets. We disagree.

In this case, the trial court determined that although the computer hardware was purchased with Flom's personal funds, it was nonetheless part of the corporation, and thus marital property. The trial court awarded equal shares in the corporation to both Flom and McKenzie. However, all corporate assets in Germany were awarded to McKenzie and all property in the United States to Flom. The German property included the computer hardware. We conclude it was within the trial court's discretion to award the computer hardware in Germany to McKenzie given: (1) the contributions both parties made to the corporation; (2) McKenzie's intent to continue the business in Germany; and (3) the fact that the trial court awarded the full marital interest of the homestead to Flom to offset the distribution of the corporate assets to McKenzie.


An appellate court will not reverse a trial court's valuation of an asset unless it is clearly erroneous on the record as a whole. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). Further, an appellate court does not require the trial court to be exact in its valuation of assets; it is only necessary that the value arrived at lies within a reasonable range of figures. Id.

Flom challenges both the trial court's valuation of the homestead in Minnesota and the court's alleged failure to credit Flom for the payments she made to preserve the homestead. In determining division of marital property "the contribution of each in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property * * *" shall be considered. Minn. Stat. § 518.58, subd. 1 (1994).

Flom claims the payments made on the property from August 1992 through March 1993 were made with nonmarital assets. The evidence presented, however, shows the payments were made from a checking account in both Flom and McKenzie's name. The trial court found the majority of the payments made by Flom occurred prior to the separation of the parties in August 1994. From this date until December 1995, Flom made the payments on the property.

When a husband and wife are living apart (and independently), even though they remain legally married until the date of the actual divorce decree, equity allows courts to look at the respective contribution, or lack thereof, of each party to the acquisition of marital assets during the separation and take that into account when making a fair division.

Gummow v. Gummow, 375 N.W.2d 30, 36 (Minn. App. 1985) (citing Silverness v. Silverness, 270 Minn. 564, 134 N.W.2d 901 (1965)).

The trial court stated that in consideration for payments that Flom may have made from her individual account, she had use of the property that was not available to McKenzie, who was living in Germany. The property had a reasonable rental value in excess of $200 per month and Flom had the entire benefit and use of this lake property. Additionally, the marital interest in the property was awarded solely to Flom to offset the award of the German corporation to McKenzie. We conclude it was within the trial court's discretion to deny repayment of funds expended by Flom on the property from August 1994 to December 1995.

Valuations by the trial court will be sustained if they fall within the limits of credible estimates by competent witnesses. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). At trial, there was testimony regarding the homestead's value by property appraisers stating values ranging from $37,500 to $56,000. Only when the valuation is clearly erroneous on the record as a whole will the lower court's decision be disturbed. Id. We conclude the trial court did not abuse its discretion by accepting the value of $56,000.


Flom claims the trial court abused its discretion by failing to assess McKenzie for $5,397 in corporate funds that allegedly disappeared while under his control in Germany. Flom testified that the money was unaccounted for when she did her bookkeeping. She alleges McKenzie used this money for personal expenses, and it is owed to the corporation. Flom compared the corporation's business transactions over a three-year period and determined the money was missing. When questioned, Flom admitted there were expenses for which there was no record. The corporation's books, however, were "balanced" and did not reflect the missing money. Mere allegations based on conjecture and speculation without supporting credible evidence need not be addressed by the trial court. See Harvet v. Unity Medical Center, Inc., 428 N.W.2d 574, 579 (Minn. App. 1988) (allegations based on conjecture and speculation are insufficient to create a jury question). Because there is no evidence in the record proving the money is missing, or that McKenzie used the money for his personal expenses, we conclude the trial court did not abuse its discretion in rejecting Flom's claim. See Minn. Stat. § 518.58, subd. 1a (1994) (burden of proving a party dissipated assets is on the party alleging dissipation).


Finally, Flom contends the trial court abused its discretion by finding McKenzie's entire German tax obligations, including penalties and fees, should be paid by the corporation. We disagree.

The trial court found: (1) the tax obligations in Germany were owed by the corporation; (2) the income upon which the taxes are owed was earned on behalf of the corporation and paid directly to the corporation; and (3) the income does not reflect any salary or personal income paid to Flom or McKenzie. Because these findings are not clearly erroneous, the trial court properly ordered the entire amount owing to be paid by the corporation.

Flom also contends the trial court erred in determining the corporation owed $2,000 for estimated 1994 taxes. Flom cites Catania v. Catania, 385 N.W.2d 28 (Minn.App. 1986), to support her contention that the trial court should not have awarded money for future taxes. In Catania, however, the trial court refused to speculate as to what future taxes might be where no evidence was provided. Id. at 30-31. Here, McKenzie testified that he estimated the 1994 tax at $2,000. McKenzie, having paid taxes in Germany in the past, was competent to estimate the tax liability, and the trial court found his estimate to be credible. See Hertz, 304 Minn. at 145, 229 N.W.2d at 44 (valuation found to be necessarily an approximation in many cases and credible estimates by competent witnesses should be sustained). Further, Flom provided no evidence to dispute this estimate. We conclude the trial court did not abuse its discretion.