This opinion will be unpublished and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

C4-96-1859

In Re the Marriage of:

Therese Ann Novick, petitioner,

Respondent,

vs.

Timothy George Novick,

Appellant.

Filed April 22, 1997

Affirmed in part, reversed in part, and remanded

Short, Judge

Chisago County District Court

File No. F493667

Steven A. Sicheneder, Tennis, Sicheneder and Collins, P.A., 20 North Lake Street, Suite 202, Forest Lake, MN 55025 (for appellant)

Mark W. Benjamin, Parker, Satrom, O'Neil & Benjamin, P.A., 123 South Ashland, Cambridge, MN 55008 (for respondent)

Considered and decided by Harten, Presiding Judge, Short, Judge, and Mansur, Judge.[*]

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

SHORT, Judge

This dispute arises from a 1996 judgment and decree of dissolution following an eleven-year marriage. Timothy George Novick and his former spouse argue the trial court abused its discretion in: (1) determining child custody; (2) setting Novick's child support obligation; (3) valuing and distributing marital property; and (4) awarding and calculating spousal maintenance. Novick's former spouse also argues the trial court abused its discretion in refusing to award her attorneys' fees. We affirm in part, reverse in part, and remand.

D E C I S I O N

A trial court has broad discretion in matters of property division, spousal maintenance, and child custody and support, and we will uphold the trial court's decisions absent an abuse of that discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

I.

Novick's former spouse argues the trial court erred in ordering that she continue to educate the parties' children within the North Branch school district. We agree. Courts should not permit the removal of a child from a given geographical area if it contradicts the best interests of the child. Sefkow v. Sefkow, 372 N.W.2d 37, 46 (Minn. App. 1985) (citing Auge v. Auge, 334 N.W.2d 393, 396-99 (Minn. 1983)), remanded on other grounds, 374 N.W.2d 733 (Minn. 1985). In addition, a custodial parent may not move a child's residence for the purpose of interfering with the noncustodial parent's visitation rights. Minn. Stat. § 518.175, subd. 3 (1996); Auge, 334 N.W.2d at 397. However, Minnesota law does not permit the placement of unnecessary limits on the movement of the family unit, because such limits interfere with the stable circumstances of a child. Sefkow, 372 N.W.2d at 46. Absent evidence that a custodial parent intends to remove a child wrongfully, a trial court may not place residential conditions on a custody award. See id. at 47 (reversing as unlawful express condition on custody that mother reside in particular area, where mother's prospective educational plans would take her away from vicinity, but father showed no evidence that mother wished to impair father's relationship with child).

The trial court incorporated the following language into the parties' judgment and decree:

The custody arrangement is based on the minor children residing in the North Branch school district. Neither party shall remove the minor children from pursuing their education in the North Branch school district without the consent of the other party or further order of the court.

In ordering Novick's former spouse to continue the children's education within the North Branch school district, the trial court, in effect, prevented her from moving any distance from North Branch. Because Novick presented no evidence that his former spouse intended to remove the children from the area for the purpose of interfering with Novick's visitation, this condition on custody is unlawful. Under these circumstances, we must reverse and remand to the trial court to remove this provision from the judgment and decree.

II.

Novick's former spouse argues the trial court abused its discretion by failing to distribute equally between the parties the income tax dependency exemptions for the three children. We disagree. In granting two exemptions to Novick and one to his former spouse, the trial court noted Novick earned twice the income of his spouse. We conclude this distribution of the exemptions did not abuse the court's broad discretion. See Fudenberg v. Molstad, 390 N.W.2d 19, 21 (Minn. App. 1986) (holding trial court may permit a noncustodial parent the use of dependency exemptions).

Both parties argue the trial court committed a number of errors in determining Novick's net income for the calculation of guidelines support. However, this court must uphold a trial court's determination of net income if it has a reasonable basis in fact. Rouland v. Thorson, 542 N.W.2d 681, 685 (Minn. App. 1996). The record demonstrates the trial court: (1) deducted Novick's federal and state income tax from gross income; (2) calculated Novick's tax liability from the tax tables, using Novick's filing status as single with three exemptions; (3) deducted $230 per month from gross monthly income as a "reasonable pension deduction," although Novick actually contributed $1,053, more than one-quarter of his pay, to a retirement fund; and (4) deducted $26 per month from Novick's total monthly income as "cafeteria medical expenses." Given these facts and the controlling statute, we conclude the trial court's determination of net monthly income had a reasonable basis in fact. See Minn. Stat. § 518.551, subd. 5(b)(i), (ii), (iv), (vii) (1996) (permitting deduction from total monthly income of reasonable pension deductions, federal and state income tax, and "cost of individual or group health/hospitalization coverage or an amount for actual medical expenses"); see also Mueller v. Mueller, 419 N.W.2d 845, 847 (Minn. App. 1988) (concluding appropriateness of pension deductions is question for trial court).

Novick also argues the trial court abused its discretion in refusing to make a 35% downward deviation from guidelines child support in view of his private debts and significant visitation with the children. However, in determining child support, a trial court may consider a debt owed to a private creditor only if it was reasonably incurred for necessary support of the child or parent or for the necessary generation of income. Minn. Stat. § 518.551, subd. 5(d) (1996). Additionally, while visitation expenses may justify a departure from the guidelines, such a departure is not automatic and must be supported by specific trial court findings. See Graser v. Graser, 392 N.W.2d 743, 745 (Minn. App. 1986) (holding court may depart on basis of visitation costs); Bliss v. Bliss, 493 N.W.2d 583, 586 (Minn. App. 1992) (remanding trial court's reduction of child support during nine-week visitation period for consideration of custodial parent's reasonable needs while children are away and how children's best interests are served by reducing support), review denied (Minn. Feb. 12, 1993).

The record shows: (1) Novick has incurred $64,705 in personal, unsecured debts and a lien on the homestead, which is soon payable; (2) Novick does not allege these debts were reasonably incurred for necessary support or generation of income; (3) Novick did not establish a substantial decrease in his former spouse's needs during visitation periods; (3) the trial court departed downward 17.5% in consideration of Novick's substantial visitation, but refused to depart further. Given these facts, we cannot say the trial court abused its discretion in refusing to make a 35% downward deviation from guidelines support.

III.

Novick argues the trial court erred in valuing the couple's personal property now held by his former spouse. The specific value of a marital asset is a question of fact, and we will not set aside a trial court's valuation unless clearly erroneous. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). Because valuation of assets often requires an approximation, a trial court's estimate need only be within a reasonable range of figures. Id. The record demonstrates that the trial court valued the personal property by averaging Novick's estimate of value with Novick's lower estimate of his cost in refurnishing the home after his former spouse removed the items. Given the testimony, the trial court's valuation was not clearly erroneous. See id. (holding reviewing court must sustain finding of value if it "falls within the limits of credible estimates made by competent witnesses even if it does not coincide exactly with the estimate of any one of them").

The parties also allege abuse of discretion in the trial court's treatment of a homestead lien and losses from the parties' cattle operation. The record shows the trial court: (1) awarded Novick's former spouse a lien on the homestead for half its equity, but allowed Novick to delay payment of the lien for three years; and (2) awarded half the parties' herd of cattle to each spouse, but did not apportion the loss Novick incurred from the cattle operation during the pendency of the dissolution proceedings. Under these circumstances, we conclude the trial court's division of property and timing of payment of the lien did not abuse its broad discretion. See Minn. Stat. § 518.58, subd. 1 (1996) (prescribing just and equitable, but not equal, property division); Holmberg v. Holmberg, 529 N.W.2d 456, 461 (Minn. App. 1995) (permitting party receiving homestead in property distribution to delay payment of lien to former spouse), review denied (Minn. May 31, 1995).

IV.

Novick argues the trial court abused its discretion in awarding his former spouse permanent maintenance. An award of maintenance is permissible if a spouse lacks sufficient property to provide for that spouse's reasonable needs or is unable to provide adequate self-support. Minn. Stat. § 518.552, subd. 1 (1996). The critical considerations in an award of maintenance are the recipient spouse's financial need and ability to meet that need, balanced against the financial situation of the maintenance obligor. Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982). A spouse seeking maintenance must prove "that spouse's" expenses exceed spendable income. Sefkow v. Sefkow, 427 N.W.2d 203, 216 (Minn. 1988).

The record demonstrates the trial court: (1) failed to make a finding on the reasonable monthly expenses of Novick's former spouse; (2) did not consider the income Novick's former spouse received from the investments she was awarded in the property settlement; (3) failed to compare her income to her expenses; and (4) assumed the parties' needs were equal, and awarded maintenance so as to equalize the parties' incomes precisely. The trial court's bare finding that Novick's former spouse is unable to support yourself adequately through employment, absent specific findings of need and income, is insufficient to support an award of spousal maintenance. See Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989) (requiring sufficiently detailed findings of fact to demonstrate consideration of all relevant statutory factors); Stevens v. Stevens, 501 N.W.2d 634, 637 (Minn. App. 1993) (concluding failure to make adequate findings compels remand even where record supports trial court's decision); see also Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985) (requiring courts to consider income generated by recipient spouse's liquid assets).

Furthermore, the trial court's award, calculated to effect an equalization of the parties' incomes, rather than to meet the parties' needs, constitutes an abuse of discretion. See Snyder v. Snyder, 298 Minn. 43, 53, 212 N.W.2d 869, 875 (1973) (stating the "purpose of alimony is to care for the wife's needs after divorce, not to provide her with a lifetime profit-sharing plan") (citation omitted). Because we must remand to the trial court for proper findings to support an award of maintenance, we need not reach the remaining assignments of error in the calculation of maintenance alleged by Novick's former spouse.

V.

Novick's former spouse argues the trial court erred in refusing to award her attorneys' fees. Under Minn. Stat. § 518.14, subd. 1 (1996), a court may award attorneys' fees and costs if it finds: (1) the fees are necessary for the good-faith assertion of the party's rights and will not contribute unnecessarily to the length and expense of the proceedings; (2) the party from whom fees are sought has the means to pay them; and (3) the party seeking fees does not. The allowance of attorneys' fees rests almost entirely in the discretion of the trial court. Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977). In declining to award fees, the trial court noted that its equal distribution of marital property rendered the parties equally able to pay attorneys' fees. Under these circumstances, we cannot say the trial court abused its broad discretion in denying fees to Novick's former spouse.

In addition to the above allegations of error, Novick's former spouse argues the trial court abused its discretion in awarding the parties joint legal custody, splitting responsibilities within joint legal custody, and deducting Novick's life and disability insurance payments from gross income to calculate child support. However, Novick's former spouse waived her right to appeal these issues by requesting, in her own proposed amended findings of fact, findings on these matters identical to those of the trial court. See Twin Cities Metro. Pub. Transit Area v. Holter, 311 Minn. 423, 425, 249 N.W.2d 458, 460 (1977) (holding party not aggrieved by judgment cannot appeal it); see, e.g., In re LaBelle's Trust, 302 Minn. 98, 112, 223 N.W.2d 400, 409-10 (1974) (refusing to allow husband to challenge validity of trust provisions incorporated into judgment and decree where husband had acquiesced in, if not solicited, amendments). Therefore, we decline to address these issues.

Affirmed in part, reversed in part, and remanded.

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