This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-1343

In re the Marriage of:

Barbara Ann Hallin, petitioner,

Respondent,

vs.

Lannie Kent Hallin,

Appellant.

Filed January 21, 1997

Affirmed

Peterson, Judge

Polk County District Court

File No. F4951408

Patti J. Jensen, Lindquist & Jeffrey, 306 American Federal Building, 124 Demers Avenue Northwest, East Grand Forks, MN 56721 (for Respondent)

Richard A. Ohlsen, Richard A. Ohlsen, Ltd., P.O. Box 366, Brainerd, MN 56401-0366 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Willis, Judge.

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

PETERSON, Judge

On appeal from a dissolution judgment, appellant challenges the district court's determinations on custody, maintenance, and property division. We affirm.

FACTS

The parties were married in 1976. They have two children, a daughter, who turned age 18 after the dissolution judgment was entered, and a minor son. When the marriage was dissolved in 1996, respondent was 38 years old, and appellant was 42.

Both parties have a high school education. When they married, respondent was working at Herberger's Department Store earning minimum wage. Respondent continued to work at Herberger's through 1993, eventually becoming a supervisor, earning about $18,000 per year. In 1994, the store closed, and respondent was laid off. Respondent obtained full-time employment with a clinic but quit the job for personal reasons. At the time of trial, respondent was working 30 to 40 hours per week for Ecolab, earning $5.75 per hour, and about 14 hours per week for Bjornson Imports, earning $4.50 per hour. The trial court found respondent received a total net monthly income of $930 from both jobs.

Appellant has been employed by the University of North Dakota for about 20 years. Appellant also worked seasonally for Mack Farms and earned a cash rental income of $3,200 per year from farm property he owned. The district court found appellant's total net monthly income from all three sources was $1,923.75.

The district court awarded respondent the parties' home but ordered appellant to pay $273 of the monthly $500 mortgage payment for 11 months to repay a $3,000 second mortgage loan obtained to finance a pickup truck awarded to respondent. The parties agree that the net value of the marital property awarded to respondent, including the homestead, was $76,797.89.[1] In his brief, appellant states that the net value of the marital property awarded to him was $54,981.75. Appellant, however, failed to include a savings account with a balance of $877.09 in his calculations. The net value of the marital property awarded to appellant, thus, was $55,858.84. The district court also awarded appellant tools and hunting and fishing equipment worth an unspecified value and nonmarital farmland with a fair market value of $55,000.

The district court found that respondent's reasonable monthly expenses were $1,694. The court found that when appellant no longer paid $273 toward the mortgage, respondent's net monthly income of $930 and a child support award of $500, would leave her about $300 per month short of meeting her expenses. The court found that returning to school to acquire new skills was not a practical alternative for respondent because she had to work. The court also found respondent could not make up for the years she had invested in working for Herberger's.

Appellant did not submit evidence of his monthly living expenses. Although he submitted a list of expenses following the hearing on respondent's motion for temporary relief, many of those expenses were related to the parties' marital household. At the time of trial, appellant was living in his mother's home and paying no rent. The court found that after paying child support and $273 toward the mortgage, appellant would have about $1,227 left to support himself. The district court found that the parties had established a quite comfortable standard of living during the marriage and that appellant had the ability to pay maintenance. The court awarded respondent $300 per month in permanent maintenance.

Based on an interview with the parties' son, the court found that he preferred the temporary custody arrangement, under which respondent had custody of the children, except that he would like to spend more time with appellant. During the interview, when asked how the temporary custody arrangement was going, the son stated, "Well, it's not going, I don't know, I guess I'd like to see my dad more." The son also stated:

I'd like to spend a little bit more time with my dad because we have more in common, but if I could change that if it didn't work out, or I don't know.

The district court found that respondent was the children's primary caretaker. The court also found that both parents have a significant and important relationship with their children; the children get along well with each other, and it is desirable that they live in the same home; the children have adjusted normally to home, school, and community considering the strain caused them by the dissolution; the children should be left in the care of their primary caretaker to provide continuity; considered in light of appellant's indefinite living arrangements, continuing to live in the family home with respondent assures a permanent family unit; both parties are healthy; both parties have the capacity and disposition to provide love, affection, guidance and to continue education and religious training for the children; while respondent had temporary custody, she allowed appellant significant visitation; and it was uncertain whether appellant, if he had physical custody, would encourage visitation with respondent. The district court awarded respondent physical custody of the children subject to reasonable visitation by appellant on 12 hours notice.

D E C I S I O N

I.

A child's best interests serve as the focal point in custody decisions. In considering a child's best interests, the trial court must make findings reflecting the trial court's consideration of the statutory factors listed in Minn. Stat. § 518.17, subd. 1(a). The court may not use one factor "to the exclusion of all others," and although the "primary caretaker factor" is significant, it cannot be used as a presumption in determining a child's best interests. An appellate court will not reverse a custody determination unless the trial court has abused its discretion by setting forth findings that are unsupported by the evidence or by improperly applying the law.

Schumm v. Schumm, 510 N.W.2d 13, 14 (Minn. App. 1993) (citations omitted) (quoting Minn. Stat. § 518.17, subd. 1(a) (1992)).

The district court considered the factors listed in Minn. Stat. § 518.17, subd. 1(a) (1994). Appellant argues that the district court erred in finding that the son expressed a preference to live with respondent. Although the son indicated that he wanted to spend more time with his father, the district court's finding that the son wanted to continue living with respondent subject to more visitation with appellant was a permissible interpretation of the son's statement to the court. Moreover, even though the son did not strongly indicate a custodial preference, the district court found that the remaining statutory factors, to the extent they favored one parent over the other, favored awarding custody to respondent.

Appellant next contends that because respondent worked full time during the marriage, the district court erred in finding respondent was the children's primary caretaker. We disagree. Respondent's testimony supports the district court's findings that she was primarily responsible for the caring and nurturing duties required of a primary caretaker. See Pikula v. Pikula, 374 N.W.2d 705, 713 (Minn. 1985) (listing factors to consider in determining which parent is the primary caretaker).

Appellant also argues that the district court improperly gave presumptive weight to the primary caretaker factor. See Minn. Stat. § 518.17, subd. 1(a) (primary caretaker factor may not be used as presumption in determining child's best interests). The findings that appellant cites to support his argument were from the temporary order. The findings in the dissolution judgment do not indicate that the district court assigned presumptive weight to the primary caretaker factor in making its final custody determination.

Finally, appellant argues that the court should not have considered the primary caretaker factor because the son was old enough to express a custodial preference. We disagree. The court may consider the primary caretaker factor even when a child is old enough to express a custodial preference. See Steinke v. Steinke, 428 N.W.2d 579, 583-84 (Minn. App. 1988) (district court erred by failing to consider 10-year-old's clearly expressed custody preference and by failing to determine which parent was the primary caretaker). The district court did not abuse its discretion by awarding respondent physical custody of the parties' son.

II.

The district court has broad discretion in awarding maintenance, and its decision will not be overturned absent an abuse of discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). The district court may award maintenance if it finds that the spouse seeking maintenance:

(a) lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or

(b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment * * *.

Minn. Stat. § 518.552, subd. 1 (1994). When determining the amount and duration of maintenance, the court should consider all relevant factors. Id., subd. 2 (1994) (listing factors to consider). When the need for a permanent award is uncertain, the court shall order a permanent award, leaving the order open for later modification. Id., subd. 3 (1994).

Respondent's reasonable monthly expense were $1,694. Her net monthly income of $930 and the maximum amount of child support she received, $500 per month, left her $264 per month short of meeting those expenses. Appellant argues that the $273 he was ordered to pay toward the mortgage should be added to respondent's income. But that payment was only temporary. Moreover, it was part of the property division and, therefore, not properly considered in determining respondent's need for maintenance. See Dougherty v. Dougherty, 443 N.W.2d 193, 195 (Minn. App. 1989) (spouse is not required to invade principal of property settlement to meet monthly expenses); see also Stevens v. Stevens, 501 N.W.2d 634, 637-38 (Minn. App. 1993) (district court lacked jurisdiction to convert property settlement into maintenance award).

Appellant also argues that respondent can draw upon the marital assets awarded to her to meet her monthly expenses. Absent evidence that the assets awarded to respondent were income-producing assets, respondent is not obligated to use those assets to meet her monthly expenses. Presumably, the certificates of deposit worth $9,040.90 earned interest, but appellant does not cite to any evidence indicating the amount of income generated by the certificates.

Appellant also argues that some of respondent's claimed monthly expenses were unreasonable. Except for her monthly expenses of $25 for cable television, $50 for entertainment, and $50 in miscellaneous expenses, respondent's expenses were for necessities. The district court did not abuse its discretion in determining that respondent's monthly expenses were reasonable.

Based on respondent's employment at Herberger's, appellant argues that respondent has the ability to obtain employment in a supervisory capacity at a salary comparable to what she earned when she was laid off from Herberger's. But at the time of trial, respondent was employed part time by Ecolab and part time by Bjornson, earning a total net monthly income of $930. The evidence supports the district court's findings that respondent did not have the skills necessary to support herself through employment and that she could not make up for the years she had invested in working for Herberger's.

In determining that appellant had the ability to pay maintenance, the court noted that appellant's obligation to pay child support for his daughter and to contribute toward the home mortgage both would end within a year and that appellant had almost $6,000 in a checking account and a credit union account. Appellant argues that this finding shows the district court intended that appellant use his property settlement to pay maintenance. Appellant, however, did not present sufficient evidence regarding his current expenses to show that he would have to use his property settlement to meet his monthly maintenance obligation. Absent such evidence, we cannot conclude that the district court abused its discretion in determining appellant's ability to pay maintenance. See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (district court did not abuse discretion by refusing to modify maintenance when obligor failed to present complete picture of his finances).

Appellant relies on Abuzzahab v. Abuzzahab, 359 N.W.2d 12 (Minn. 1984), to argue that the district court erred in awarding respondent permanent maintenance. In Abuzzahab, the supreme court reversed a permanent maintenance award to a wife who had been trained as a registered nurse and was currently working in real estate because she was capable of attaining a degree of self-sufficiency through employment. Id. at 14. Here, in contrast, the district court found that respondent did not have the skills necessary for her to be self-supporting and that continuing her education was not a practical alternative for respondent because she needed to work. Moreover, after Abuzzahab was decided, the legislature "amended the maintenance statute to clarify that temporary awards should not be favored over permanent awards." Gales v. Gales, 553 N.W.2d 416, 419 (Minn. 1996).

In Gales, the supreme court reversed a permanent maintenance award when the wife was only 32 years old at the time of dissolution, had not foregone employment opportunities during the marriage, and had no desire to advance in her career. Id. at 420-22. Here, the district court did not find that respondent did not want to advance in her career, but rather that it was impractical for her to continue her education to obtain the skills necessary to become self-supporting because she needed to work. Also, she has custody of the parties' minor son. The district court's decision to award respondent permanent maintenance of $300 per month was not an abuse of discretion.

III.

The district court has discretion to divide the parties' marital property, and its decision will be affirmed "'if it has an acceptable basis in fact and principle.'" Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986) (quoting Bollenbach v. Bollenbach, 285 Minn. 418, 426, 175 N.W.2d 148, 154 (1970)). The district court must make "a just and equitable division" of the parties' marital property. Minn. Stat. § 518.58, subd. 1 (1994). A just and equitable division is not necessarily a mathematically equal division. Reynolds v. Reynolds, 498 N.W.2d 266, 270 (Minn. App. 1993). The factors the court should consider in dividing marital property are listed in Minn. Stat. § 518.58, subd. 1.

The trial court awarded respondent marital property worth $76,797.89, or 57.9% of the net marital estate, and appellant marital property worth $55,858.84, or 42.1% of the net marital estate. The trial court's findings indicate that the court found the unequal division was justified by the disparity between the parties' incomes and employment opportunities and by appellant's potential to acquire income-producing and capital assets in the future due to his ownership of the unencumbered, nonmarital farmland. These are proper factors to consider under Minn. Stat. § 518.58, subd. 1. The district court did not abuse its discretion in dividing the parties' marital property. See Reynolds, 498 N.W.2d at 270-71 (affirming 57.5%-42.5% property division based on income disparity between parties). Moreover, appellant was awarded a greater share of the marital property than he admits because he was awarded tools and hunting and fishing equipment worth an unspecified value.

Appellant also argues that the district court erred by failing to award him items of personal property that have a sentimental value to him. The items appellant requests are household goods and furniture. The court may "award to either spouse the household goods and furniture of the parties, whether or not acquired during the marriage." Minn. Stat. § 518.58, subd. 1. We, therefore, will not reverse the property award on this basis. We note, however, that respondent concedes that appellant should have been awarded these items, but she is unwilling to give them to him unless the property distribution is adjusted to account for any items of significant value. The parties are not prohibited from reaching an agreement to exchange these items.

Respondent requests attorney fees on appeal based on need. Minn. Stat. § 518.14, subd. 1 (1996), allows the court to award attorney fees provided that the award is necessary to enable a party to carry on a proceeding and that the opposing party has the means to pay them. Because it is unclear whether an award is necessary to enable respondent to carry on this proceeding and whether appellant has the means to pay respondent's attorney fees, we decline to award respondent attorney fees.

Affirmed.

[ ]1There appears to be an error in the parties' calculation. The net value of the marital property awarded to respondent, itemized in findings of fact 9, 10, 12, and 13 and conclusions of law 7, 9, 11, 13, and 14, was $70,797.89. Because the apparent error does not affect our decision, we use the value calculated by the parties.