This opinion will be unpublished and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

C5-96-820

In Re the Marriage of:

Sheila May Talbot, petitioner,

Respondent,

vs.

Daniel Haase Talbot,

Appellant.

Filed January 7, 1997

Affirmed in part, reversed in part, and remanded

Huspeni, Judge

Ramsey County District Court

File No. DMF 3902967

Michael C. Black, Michael C. Black Law Office, Ltd., 265 West Seventh Street, St. Paul, MN 55102 (for Respondent)

Andrew V. Moran, 501 East Highway 13, Suite 114, Burnsville, MN 55337 (for Appellant)

Considered and decided by Huspeni, Presiding Judge, Norton, Judge, and Forsberg, Judge.[*]

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

HUSPENI, Judge

In this appeal from a dissolution judgment, appellant challenges the trial court's amended findings of fact and conclusions of law regarding custody, property division, spousal maintenance, and attorney fees. Because we find no abuse of discretion with regard to custody and attorney fees, we affirm on these issues. However, because we find that the trial court did not properly consider appellant's financial ability when awarding spousal maintenance, we reverse and remand that issue; we also reverse respondent's award of right of possession of the marital homestead because that right was neither part of the marital estate nor part of either spouse's nonmarital estate.

FACTS

Appellant Daniel Talbot and respondent Sheila Talbot were married on April 25, 1981, in Michigan. The parties then moved to the St. Paul home of Daniel's father, Dr. Darwin Talbot. Dr. Talbot built the home; its mortgage was paid off in 1944. Daniel and Sheila and their three children, ages 6, 9, and 14, lived there together until 1994.

Dr. Talbot began "gifting" the house to Daniel in 1986. He signed a warranty deed conveying the title in fee simple to Daniel, subject to a life estate in favor of Dr. Talbot. This conveyance created a remainder interest in Daniel; however, Daniel is not entitled to any right of possession until Dr. Talbot dies. Dr. Talbot allowed Daniel and Sheila to live in the home even though technically, under the law of property, they had no right of possession.

Daniel and Dr. Talbot executed a mortgage note for $95,000 with annual payments of $10,000. Each year in January, Dr.Talbot made a $10,000 gift to Daniel, who then used the money to pay the mortgage. Sheila's name was never on any of the checks, and Dr. Talbot testified that he never intended to gift the home to Sheila. No mortgage payments were made using marital funds.

Although Sheila filed for dissolution of marriage in 1990, the parties continued to live together until 1994, when Daniel vacated the home pursuant to a temporary relief order. The referee granted temporary custody of the children to Sheila and ordered Daniel to pay $952 a month in temporary child support. Sheila was ordered to pay taxes on the home as they came due.

After trial, the district court (1) found that because the mortgage in favor of Dr. Talbot was a sham it did not reduce the value of the home; (2) found that the $6,000 in property taxes due on the home was marital property, not post-separation debt; (3) awarded the home to Daniel as nonmarital property, but awarded all rights of possession and occupancy to Sheila until emancipation of the youngest child; (4) ordered Daniel to pay $900 per month child support, and $250 per month maintenance, and to assume responsibility for some $27,000 of unsecured marital debt;[1] (5) ordered Daniel to pay $4,250 for Sheila's attorney fees; and (6) awarded Sheila sole physical custody of the children. Daniel appeals all of the above.

D E C I S I O N

I. Custody

Appellate review of custody determinations is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 ( Minn. 1985). This court should not find its own facts; instead the trial court's findings must be sustained unless clearly erroneous. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). The trial court need not address all statutory factors;

[i]t is sufficient if the findings as a whole reflect that the trial court has taken the statutory factors into consideration, in so far as they are relevant, in reaching its decision.

Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 172 (1976).

Daniel challenges the trial court's determination that Sheila was the primary caretaker of the children and appears to argue that because this finding is erroneous, granting Sheila sole physical custody is erroneous as well. We find no error. First, there is evidence in the record to support the primary parent determination. Second, this factor is but one of thirteen factors to be considered by the trial court in determining custody. Minn. Stat. § 518.17, subd. 1(a) (1994). Here, the trial court addressed all thirteen factors and clearly did not rely on any one to the exclusion of others. Given the trial court's broad discretion regarding this issue and the fact that the trial court made detailed findings addressing the statutory factors, there was no abuse of discretion.

II. Property Division

Trial courts have broad discretion in dividing property and this court

will and must affirm the [trial court's property division] if it has an acceptable basis in fact and principle even though [the appellate court] might have made a different disposition of the problem.

Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986) (quoting Bollenbach v. Bollenbach, 285 Minn. 418, 426-27, 175 N.W.2d 148, 154 (1970)).

Although accorded broad discretion in valuation and distribution of an asset, such discretion is not unlimited and the court's determination should be supported by clear documentary or testimonial evidence, or by comprehensive findings issued by the court. Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983). Further, a trial court's apportionment of debt is treated and reviewed as a property division. Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986), review denied (Minn. May 29, 1986).

Possession of the Homestead

Daniel argues that the trial court abused its discretion by awarding temporary possession and occupancy of the home to Sheila, although it found that the home was Daniel's nonmarital property.

The court, having due regard to all the circumstances and the custody of children of the parties, may award to either party the right of occupancy of the homestead of the parties, exclusive or otherwise * * * for a period of time determined by the court.

Minn. Stat. § 518.63 (1994). The statute makes no distinction between marital and nonmarital homesteads. Further, this court has ruled that an award of possession of another spouse's nonmarital homestead is within the trial court's discretion. Charlson v. Charlson, 374 N.W.2d 473, 477 (Minn. App. 1985) (holding that trial court was within its discretion in ruling wife was entitled to temporary possession of a homestead that was substantially husband's nonmarital property).

In this case, however, neither party currently has a right of possession of the homestead. The property was conveyed to Daniel in fee simple, subject to a life estate in favor of Dr.Talbot. Daniel has only a remainder interest; he has no rights of possession until Dr.Talbot's death. John E. Cribbet, Principles of the Law of Property 23-25 (1982). This remainder interest is Daniel's nonmarital property; the right of possession is Dr.Talbot's.

Because the nonmarital property is only a future interest in the property, the trial court may award Sheila only future rights in the property. The trial court may not award Sheila the right of present possession, because that right is exclusively Dr. Talbot's. We reverse the trial court's determination on this issue.

Valuation of the Life Estate

Daniel also argues that the trial court abused its discretion in its valuing the life estate. A trial court's valuation of an asset will not be reversed, 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). When done by approximation, it is only necessary that the value arrived at lie within a reasonable range of figures. Id.

In the instant case, based on the testimony of a residential appraiser, the trial court valued the home at $173,000. The trial court also applied the life expectancy tables in the jury instruction guides to determine the value of Dr. Talbot's life estate. We believe that the figure arrived at was within a reasonable range of figures, and the trial court did not abuse its discretion.

Household Goods and Furnishings

Daniel further argues that the trial court abused its discretion by awarding nonmarital household goods and furnishings to Sheila. Under Minn. Stat. § 518.58, subd. 1 (1994), the trial court may award either spouse the household goods and furniture of the parties, whether or not acquired during the marriage. There was no abuse of discretion regarding this issue.

Property Taxes on the Homestead

Finally, Daniel claims that the trial court should not have considered the $6,000 owing in real estate taxes as marital debt. A trial court's division of marital debt is reviewed in the same manner as a division of marital property. Justis, 384 N.W.2d at 889.

In this case, the trial court disregarded the referee's order that Sheila pay the real estate taxes. The trial court was under no obligation to follow the temporary order, which was only in effect until the entry of a final decree. Minn. Stat. § 518.131, subd. 5 (1994). Further, the trial court's findings provide support for the conclusion that Sheila was not in a financial position to pay the taxes. As a result, the trial court was within its discretion in considering the $6,000 in property taxes to be a marital debt.

III. Spousal Maintenance

Daniel argues that the trial court abused its discretion by ordering him to pay spousal maintenance. The trial court has broad discretion in awarding spousal maintenance, and its determination of the amount of spousal maintenance will not be disturbed on review, absent an abuse of discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). 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). Even where the appellate court would have ruled otherwise had it been the trial court, the trial court's decision regarding maintenance must be affirmed if it has an acceptable basis in fact and principle. Rohling v. Rohling, 379 N.W.2d 519, 524 (Minn. 1986).

In awarding Sheila $250 per month in spousal maintenance, the trial court referred to all of the statutory factors set forth in Minn. Stat. § 518.552 (1994). However, it is not clear how the trial court arrived at its conclusion that Daniel had the financial ability to provide maintenance. The court found his net monthly income to be $2,572.17[2] and his reasonable monthly living expenses to be $1,413. From the $1,159.17 remaining, the court ordered him to pay $900 per month child support, $136 per month child care expense, and $250 per month spousal maintenance, and to service over $27,000 of marital debt. In view of the trial court's findings regarding Daniel's income and expenses, it is doubtful that he will be able to comply with his court ordered obligations at his current rate of pay. We reverse and remand the issue of spousal maintenance to enable the trial court to make the necessary findings regarding Daniel's financial ability to discharge all court ordered obligations, and note that the trial court may wish to receive evidence on Daniel's income from teaching photography and the wedding picture business.

IV. Attorney Fees

Daniel challenges the trial court's order that Daniel pay $4,250 of Sheila's attorney fees. The allowance of attorney fees rests almost entirely in the discretion of the trial court. Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977). Only rarely will a trial court's decision regarding attorney fees be overturned on appeal. Burns v. Burns, 466 N.W.2d 421, 424 (Minn. App. 1991).

Minn. Stat. § 518.14, subd. 1 (1994), provides that a trial court shall award attorney fees if (1) the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding; (2) the party from whom fees are sought has the means to pay them; and (3) the party to whom fees are awarded does not have the means to pay them.

The court found that the great financial disparity of the parties warranted that Daniel pay a portion of Sheila's $17,000 of attorney fees and that all three provisions of the statute applied. The evidence in the record supports the trial court's findings. Given the broad discretion of the trial court in this matter, there was no abuse.

Affirmed in part, reversed in part, and remanded.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1The court stated that responsibility for this indebtedness was assigned to Daniel as

additional child support and spousal maintenance * * * made in lieu of awarding [Sheila] a portion of [Daniel's] non-marital assets in order to cure the unfair hardship worked upon [Sheila] by not invading [Daniel's] non-marital assets.

[Daniel's] obligation to defend and hold [Sheila] harmless from the payment of the debts and liabilities set forth above shall be non-dischargeable under 11 U.S.C. § 523 of the Bankruptcy Code. The obligations to defend and hold harmless are an integral part of the financial support of [Sheila] and the minor children.

Daniel alleges a monthly expense of $1,371 to service this indebtedness. The trial court made no findings as to a reasonable monthly expense for debt service.

[ ]2The trial court also stated that "[Daniel] earns additional income from teaching photography and wedding picture business" but did not specify an amount received from these pursuits.