This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-1506

In Re the Marriage of:

Viktoria Atamashko Hodynsky, petitioner,

Appellant,

vs.

Walter Hodynsky,

Respondent.

Filed February 25, 1997

Affirmed

Forsberg, Judge

[*]

Anoka County District Court

File No. F9-95-4600

Julie Pawluk, Henderson, Howard, Pawluk & McNamara, P.A., 6200 Shingle Creek Parkway, Suite 385, Brooklyn Center, MN 55430 (for appellant)

Donald P. Halva, 460 Ninth Avenue Northwest, New Brighton, MN 55112 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Forsberg, Judge.

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

FORSBERG, Judge

Appellant Viktoria Atamashko Hodynsky claims the trial court abused its discretion by (1) awarding respondent Walter Hodynsky legal and physical custody of the parties' minor child, A.H.; (2) awarding an insufficient amount of spousal maintenance; (3) classifying respondent's retirement plan as nonmarital property; (4) refusing to award her an interest in respondent's nonmarital property; and (5) failing to award her sufficient attorney fees. Respondent claims that the trial court abused its discretion by (1) awarding any spousal maintenance; (2) failing to award him child support and daycare expenses; and (3) awarding appellant attorney fees. We affirm.

FACTS

The parties married in 1989, when appellant was visiting from her native Ukraine. At that time, respondent was a Minnesota attorney of Ukrainian descent; appellant, who had been a medical doctor in the Ukraine, was working part-time as a home health aide in the United States.

The couple had a son, A.H., in 1991. Appellant's mother, a Ukrainian citizen in the United States temporarily, lived with the couple, providing daycare for A.H. Appellant, considering herself of Ukrainian and Russian ethnicity, spoke both Russian and Ukrainian to A.H. Respondent and his parents strongly disliked the presence of any Russian influence in the house. Appellant fervently objected to A.H. visiting with his paternal grandparents.

In March 1995, respondent filed for divorce. Each party alleges that the other engaged in domestic abuse, and each maintains his or her individual innocence. In April 1995, appellant claimed that respondent sexually abused A.H. Respondent denied the allegation and claimed that appellant physically abused A.H. The trial court consolidated the abuse complaints with the divorce proceeding, and ordered a custody evaluation. The court temporarily awarded appellant custody and respondent supervised visitation.

Following trial, the court concluded (1) sole legal and physical custody of A.H. should be awarded to respondent; (2) respondent should pay $500 per month in spousal maintenance for the first year, reduced to $300 per month the second year, $100 per month the third year, and nothing thereafter; (3) respondent's interest in the Burlington Northern Railroad Company Thrift and Profit Sharing Retirement Plan was nonmarital property; (4) appellant should not be awarded any of respondent's nonmarital property; (5) child support should be reserved; and (6) respondent should pay $7,500 of appellant's attorney fees.

Both parties brought motions for amended judgment, and respondent moved for a new trial. The trial court amended its findings to deny respondent child support and daycare expenses. This appeal followed.

D E C I S I O N

I.

A trial court must consider the "best interests of the child" in making custody determinations. See Weatherly v. Weatherly, 330 N.W.2d 890, 891 (Minn. 1983). The court must determine the child's best interests by considering all relevant statutory factors, and may not consider one factor to the exclusion of others. See Minn. Stat. § 518.17, subd. 1 (1996). Findings on these statutory factors will not be overturned unless clearly erroneous. See Minn. R. Civ. P. 52.01. And a trial court has the best opportunity to observe the witnesses and assess their credibility. Id. (due regard shall be given to opportunity of trial court to judge credibility of witnesses).

Appellant first challenges the trial court's finding that respondent did not sexually abuse A.H. Deciphering whether sexual abuse occurred in this case amounts to a credibility determination. Appellant and her mother alleged that respondent sexually abused A.H.; respondent denied emphatically the allegations. There was considerable evidence supporting the trial court's finding that sexual abuse did not occur. For instance, A.H. preferred to have respondent play with him, dress him, and put him to bed. In addition, A.H. was involved with other children at an early childhood family education center, and no evidence of sexual abuse ever surfaced there. Further, after appellant claimed to have known of the abuse, she made no report and continued to be affectionate with respondent. Given this evidence, the court did not clearly err in finding that appellant fabricated many allegations and that respondent did not abuse A.H.

Second, appellant challenges the trial court's finding that respondent "presents a more permanent family unit than does [appellant]." Appellant claims that she provides the more permanent family unit for A.H. because she and her mother have cared for him, and because she and her mother intend to remain in the United States and continue raising him. Although appellant's contention is well-supported in the record, there is also a plethora of evidence that respondent and his parents are stable members of the community, have been involved in rearing A.H., and will provide a permanent family unit. The trial court's finding thus has a basis in the record and is not clearly erroneous.

Third, appellant challenges the court's finding that she was unwilling to foster a relationship between A.H. and his father, whereas respondent was willing to foster the mother-son relationship. Appellant claims that she only interfered with respondent's visitation when it was justified for A.H.'s safety or health. However, appellant's testimony that she would "tolerate" A.H.'s relationship with respondent and her refusal to awaken A.H. for visitation with his father provides a basis for the trial court's finding. Fourth, appellant challenges the trial court's determination that respondent "would have a better opportunity to ferret out people and programs to assist him in his custodial role." Because the record establishes that respondent has vast connections to the community, the trial court's finding was not clearly erroneous.

Finally, appellant challenges the trial court's findings regarding A.H.'s cultural background. Appellant contends that A.H. is both Ukrainian and Russian, that the trial court failed to acknowledge A.H.'s Russian heritage. Appellant further contends that the trial court erred by failing to find that respondent would prevent A.H. from developing ties to his Russian heritage.

The trial court found that both parties share a "strong connection to the Ukraine culture," and that both "desire [A.H.] to continue to become knowledgeable about the Ukraine culture." The court also found that appellant, who lived in the Ukraine from her birth in 1962 until she moved to the United States in 1989, "learned to live with the Soviet Union's influence and domination of the Ukraine." And the court further found that because respondent's parents left in 1951 and "despise[d]" the Soviet Union,"

[i]t was very evident that [appellant] may arouse alarm and anger in [respondent] by speaking the Russian language, and/or referring to the Russian influence in a positive way.

Given these findings, which are amply supported by the record, we cannot conclude that the trial court abused its discretion or improperly failed to consider A.H.'s best interests.

II.

Appellant asserts the trial court abused its discretion by calculating spousal maintenance based on her speculative future earning capacity. We disagree. The trial court utilized appellant's present net monthly income to derive the amount of maintenance she should receive for the first year. The court's gradual reduction of spousal maintenance based on appellant's increased earning potential was not speculative. In contrast to the cases cited by appellant, the trial court relied on (1) testimony that there were specific, more lucrative jobs available for which appellant was qualified, and (2) appellant's ability to increase her hours to become a full-time employee at her current job and, thus, increase her income. Cf. Reif v. Reif, 426 N.W.2d 227, 230 (Minn. App. 1988) (finding on spouse's potential income without evidence that jobs existed was speculative); Laumann v. Laumann, 400 N.W.2d 355, 359-60 (Minn. App. 1987) (findings regarding potential income from new career as independent contractor found speculative), review denied (Minn. Feb. 10, 1987).

III.

A trial court may deviate from the child support guidelines once it takes into consideration certain factors. See Minn. Stat. § 518.551, subd. 5(c) (1996). This court reviews the trial court's findings in a child support determination according to a clearly erroneous standard. Henry v. Henry, 404 N.W.2d 376, 378 (Minn. App. 1987) (citing Reck v. Reck, 346 N.W.2d 675, 677 (Minn. App. 1984), review denied (Minn. Apr. 25, 1984)). Ultimate determinations regarding child support will not be reversed absent a clear abuse of discretion. Id.

Respondent challenges the trial court's decision to deviate from the guidelines and to deny his petition for child support. Respondent asserts that, contrary to the trial court's finding that his earning capacity is greater, appellant has the greater earning capacity. However, child support determinations must be based on an obligor's current income. See Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn. App. 1989). In addition, Minn. Stat. § 518.551, subd. 5(c), requires consideration of the "earnings, income, and resources" of each party and does not allow consideration of future earnings. There was sufficient record evidence to support the trial court's finding that appellant's employment options and earning potential are presently "somewhat limited."

Respondent further challenges the trial court's finding that "[t]here is no evidence that [r]espondent would not be able to continue providing for [A.H.'s] daily needs without the assistance from [appellant]." Respondent asserts that because the court awarded appellant spousal maintenance and did not calculate respondent's daycare costs into his expenses, he will not be able to provide for A.H. on his income alone. However, the court had extensive evidence regarding both parties' resources, including marital and nonmarital property, income, and expenses. Because respondent's total resources will enable him to pay for daycare and his remaining expenses, we conclude that the trial court did not clearly err in finding that respondent could provide for A.H.'s daily needs.

IV.

To determine spousal maintenance, a trial court essentially balances the recipient's financial needs and ability to meet those needs against the financial condition of the spouse providing the maintenance. See Krick v. Krick, 349 N.W.2d 350, 351-352 (Minn. App. 1984) (citing Erlandson v. Erlandson, 318 N.W.2d 36, 39 (Minn. 1982)). This court must affirm a trial court's findings regarding maintenance unless clearly erroneous. Reif, 426 N.W.2d at 230 (citing Garcia v. Garcia, 415 N.W.2d 702, 704 (Minn. App. 1987)). This court will review a trial court's ultimate maintenance award for abuse of discretion. Erlandson, 318 N.W.2d at 38.

Respondent challenges the trial court's finding that he "will have an ability to provide maintenance to [appellant]." Respondent states that his monthly income is $1,722.31, and that if calculation of his expenses includes reasonable monthly daycare expenses of $400 per month and appellant's awarded maintenance, then his monthly expenses exceed his income. The trial court found that respondent has monthly expenses of $1,180.87. In the discussion above, we concluded that the trial court did not err by finding that respondent has the ability to pay for his son's daycare. In addition, the trial court found that appellant has earning potential that will eliminate her need for spousal maintenance, but allowed her two years to gradually increase her income. Under these circumstances, the trial court's award of maintenance was well within its discretion.

V.

A trial court's division of marital property will not be overturned absent a clear abuse of discretion. White v. White, 521 N.W.2d 874, 877 (Minn. App. 1994). This court need not defer to a trial court's legal conclusion about whether property is marital or nonmarital. Id. Nonmarital property includes all property acquired before marriage or acquired from an increase in the value of property that was acquired before marriage. See Minn. Stat. § 518.54, subd. 5(b), (c). When the increase in the value of nonmarital property is due to inflation or market forces alone, courts distinguish between income and appreciation and "determine whether the growth represents realized or unrealized gain." White, 521 N.W.2d at 878 (citing Swick v. Swick, 467 N.W.2d 328, 332 (Minn. App. 1991), review denied (Minn. May 16, 1991)). Realized interest on nonmarital property constitutes "income" and becomes marital property when it is presently available for the parties' use. Id. at 878-79.

The parties agree that respondent's Burlington Northern Defined Benefit Plan (the Plan) was acquired as nonmarital property. However, appellant asserts that the trial court erred by concluding that the amount of interest the Plan accumulated during marriage was nonmarital property. She claims that although the Plan had not been distributed for use, it was fully vested and owned by respondent during the marriage. Appellant cites Wiegers v. Weigers, 467 N.W.2d 342, 344-45 (Minn. App. 1991), Campion v. Campion, 385 N.W.2d 1, 5 (Minn. App. 1986), and Pearson v. Pearson, 363 N.W.2d 337, 339 (Minn. App. 1985), to support her claim that as long as interest is severable and independently identifiable from the principal, it is income. However, these cases specifically state that interest must be available or accessible to be considered income. In this case, the interest from the Plan is not available to respondent until he reaches the age of 591/2. Thus, the trial court did not err by determining that the Plan was nonmarital property.

VI.

If a trial court finds that one spouse's resources or property, including marital property, is "so inadequate as to work an unfair hardship," the court may award that spouse "up to one-half" of the other spouse's nonmarital property. See Minn. Stat. § 518.58, subd. 2 (1996). This court reviews the trial court's determination in nonmarital property apportionments according to an abuse of discretion standard. See Dammann v. Dammann, 351 N.W.2d 651, 652 (Minn. App. 1984).

Appellant claims that she is suffering unfair hardship because she (1) left her native country for respondent; (2) has much less immediate earning potential than respondent; (3) has greater expenses than income; and (4) has a significantly smaller opportunity for future acquisition of capital assets and income than respondent. In Hanson v. Hanson, 378 N.W.2d 28, 30-31 (Minn. App. 1985), this court affirmed a trial court's finding of unfair hardship where the wife abandoned her native Taiwan to marry a United States citizen and would suffer extreme disgrace if she chose to return to Taiwan. Hanson is distinguishable from this case because appellant is free to return to the Ukraine without the social stigma found in Hanson. Appellant would not endure any of the economic ostracism that would prevent her from utilizing her skills to earn a living. Thus, the court did not err by (1) declining to find undue hardship would result, and (2) refusing to award appellant a portion of respondent's nonmarital property.

VII.

A court may award attorney fees "in an amount necessary to enable a party to carry on or contest a proceeding." Minn. Stat. § 514.14, subd. 1 (1996). The court must assess whether (1) the award of fees is necessary for the party to proceed; (2) the party awarded fees does not have the means to pay them; and (3) the party assessed has the ability to pay them. Id. The allowance of attorney fees rests almost entirely in the discretion of the trial court. See Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977).

Respondent claims that the trial court failed to make findings detailing appellant's inability to pay her own attorney fees. We disagree. The trial court's findings were extensive and thorough on all the issues, and provided a basis for its conclusion to award $7,500 in attorney fees to appellant. Cf. Richards v. Richards, 472 N.W.2d 162, 166 (Minn. App. 1991) (trial court erred when it denied request for attorney fees without making specific findings).

VIII.

A trial court may order attorney fees if one spouse has the means to pay and the other's need is established with proof that she would have had to sell her car or home in order to pay her fees or otherwise liquidate a substantial portion of her property award. See Karg v. Karg, 418 N.W.2d 198, 202 (Minn. App. 1988); Schultz v. Schultz, 383 N.W.2d 379, 383 (Minn. App. 1986). Appellant claims that the trial court's award of $7,500 is insufficient and will require her to use her property award to pay her remaining attorney fees; respondent claims that the trial court's award improperly requires him to liquidate his property award to pay appellant's fees. Because either party would be required to liquidate some portion of their property award to pay appellant's attorney fees, we cannot conclude that the trial court abused its discretion in ordering respondent to pay a portion of appellant's fees.

Affirmed.

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