may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Kristen Ann Aldainy, petitioner,
Ahmed Mohammed Aldainy,
Filed September 9, 1997
Washington County District Court
File No. F1952663
Stephen R. Arnott, Arnott Law Firm, P.A., Ramsey Professional Building, 311 Ramsey Street, Saint Paul, MN 55102 (for respondent)
Peter H. Watson, Peter H. Watson & Associates, P.A., 1960 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Harten, Judge.
In a dissolution action, Ahmed Mohammed Aldainy appeals from a judgment and decree, an amended judgment and decree, and a second amended judgment and decree, contending the trial court erred by: (1) determining that respondent Kristen Ann Aldainy is entitled to putative spouse status; (2) dismissing property claims brought by appellant's wife, Munina Ahmet Bahar Al-Masri (the Intervenor); (3) awarding sole physical custody of the minor children to respondent; (4) improperly dividing property and debt; (5) reserving the issue of future spousal maintenance; and (6) ordering appellant to pay his own attorney fees. We affirm on all issues.
The parties spent time in both the United States and Saudi Arabia, travelling extensively and living a wealthy lifestyle. Respondent worked from time to time and assisted appellant in his business affairs. Using funds generated from the sale of a rental property, respondent purchased a lake property in Wisconsin now valued at $100,000. Respondent claims that appellant generated over $9,600 per month in rental income from his ownership of 13 villas and 49 cabins in Saudi Arabia.
Both parties suffer from diabetes. In addition, respondent suffers from heart problems, high blood pressure, and asthma.
Respondent filed a petition for dissolution of marriage on June 6, 1995. Appellant subsequently took the children to Saudi Arabia and has refused to obey a trial court order requiring him to return them to Minnesota. In addition, he has failed to remain current on his temporary maintenance obligation.
Pursuant to a July 11, 1995, hearing, respondent was awarded temporary use and possession of a 1993 Ford Explorer and a 1983 Stingray Boat. On or about February 5, 1996, without the knowledge or consent of respondent, an application for duplicate certificate of title was made to the Department of Public Safety and the parties' address was changed to the address of appellant's older daughter. On or about February 12, 1996, title to the automobile was allegedly transferred to The Triangle Corporation. Respondent did not sign the duplicate certificate of title, and she last saw the boat and automobile on March 1, 1996. Appellant claims that his son-in-law created The Triangle Corporation and repossessed the items. Appellant claims that he is in no way responsible for the disappearance of the car and boat, and he is unaware of their whereabouts.
I. Putative Spouse Status
Any person who has cohabited with another to whom the person is not legally married in the good faith belief that the person was married to the other is a putative spouse until knowledge of the fact that the person is not legally married terminates the status and prevents acquisition of further rights.
We disagree. We will not disturb the trial court's findings as to putative spouse status unless, upon review of the record, we are "left with a definite and firm conviction that a mistake has been made." Mjolness v. Mjolness, 363 N.W.2d 839, 841 (Minn. App. 1985).
The trial court made the following findings in support of granting putative spouse status to respondent: (1) the parties went to South Dakota for a marriage license because South Dakota did not require documentary proof that appellant was divorced; (2) respondent believed that appellant was free to marry, but that obtaining written proof from Saudi Arabia would be difficult and take a long time; (3) respondent knew of appellant's previous marriage to the Intervenor, but believed that appellant and the Intervenor were divorced and that the Intervenor was entitled to respect as the mother of appellant's three oldest children; (4) that appellant failed to raise his marriage to the Intervenor as an issue until after the trial court ordered appellant to return the parties' two minor children to Minnesota and ordered appellant to pay an increased level of spousal maintenance, plus costs and attorney fees; and (5) respondent held a good faith belief that she was married to appellant from July 1, 1982, until on or about February 22, 1996. These findings are supported by evidence in the record, including: (1) respondent's testimony regarding her good faith belief that appellant was not legally married to another woman; (2) appellant's deposition in which he refers to respondent as his present wife and the Intervenor as his past wife; and (3) a statement dictated by appellant in which he refers to respondent as "my wife" and the Intervenor as simply the mother of his three children.
We recognize that there is conflicting evidence as to whether respondent knew or should have known that appellant's marriage to the Intervenor predated her own marriage to appellant. The trial court had an opportunity to consider the conflicting testimony and to assess the credibility of the witnesses. See Mjolness, 363 N.W.2d at 841 (trial court's findings are product of first-hand observation and possess integrity not contained in record alone). In light of the support in the record for the trial court's findings, we reject appellant's argument. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations).
A putative spouse acquires the rights conferred upon a legal spouse * * * . If there is a legal spouse * * * , rights acquired by a putative spouse do not supersede the rights of the legal spouse * * * , but the court shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice.
We disagree. Appellant failed to set forth any argument demonstrating why this court should conclude that the trial court's apportionment of property, maintenance, and support was inappropriate under the circumstances and in the interests of justice. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) ("[a]n assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection"). The trial court found that respondent is unable to provide adequate self-support and property was apportioned to provide for her reasonable needs. The trial court dismissed the Intervenor's claims to property apportioned to respondent based on the Intervenor's ongoing marital relationship with appellant and appellant's continued willingness and capability of providing support. Thus, we cannot conclude that the trial court erred. The trial court properly considered the circumstances of this case and its decree represents the interests of justice.
Appellant argues that the trial court erred by granting sole physical custody to respondent because the children are presently schooled in Saudi Arabia and F.A.A. has indicated that he prefers to spend equal time with both parents. We disagree. The trial court did consider the concerns set forth by appellant, finding: (1) F.A.A. proposed that he spend equal time in Minnesota with his mother and in Saudi Arabia with his father; (2) F.A.A. started his schooling in Saudi Arabia; and (3) the children generally spend summers in Minnesota and the rest of the year in Saudi Arabia. Appellant does not question the completeness of the trial court's numerous other findings addressing the pertinent statutory factors or whether any of those findings are supported in the record. He, thus, fails to make any argument on which to base a reversal. See Ayers, 508 N.W.2d at 518 (stating scope of appellant review).
The children are presently with appellant in Saudi Arabia. Significantly, appellant has refused to obey a trial court order requiring him to return the children to Minnesota and has denied respondent physical access to the children since January 1996. The trial court found that awarding physical custody of the children to appellant would seem to guarantee that the children would never see their mother again. In light of the circumstances, the extensive findings of the trial court, and the children's expressed interest in spending time with their mother, we conclude that the trial court's custody award was not an abuse of discretion.
The presumptive "marital" classification of property is rebutted by showing that the property is nonmarital. Minn. Stat. § 518.54, subd. 5 (1996). "A party seeking to establish the nonmarital character of an asset must do so by a preponderance of the evidence." Wopata v. Wopata, 498 N.W.2d 478, 484 (Minn. App. 1993).
In order to maintain its nonmarital character, nonmarital property must be kept separate from marital property or, if commingled, must be readily traceable.
Id. An apportionment of nonmarital property requires a finding of unfair hardship. Minn. Stat. § 518.58, subd. 2 (1996). A finding of unfair hardship has been upheld where there was great disparity between the parties' incomes, financial needs, and earning potentials. Hanson v. Hanson, 378 N.W.2d 28, 30-31 (Minn. App. 1985). Where there was less disparity in incomes, a finding of unfair hardship has been upheld where a party's emotional and medical needs would require costly treatment and where a party was in ill health and lacked marketable skills. Frederiksen v. Frederiksen, 368 N.W.2d 769, 775 (Minn. App. 1985) (upholding award of nonmarital assets where marital estate insufficient to meet needs); Roel v. Roel, 406 N.W.2d 619, 622 (Minn. App. 1987) (unfair hardship finding supported in light of health problems and restricted employability).
a. The Homestead
Appellant asserts that the trial court erred in determining that respondent held a $125,000 nonmarital interest in the homestead property, valued at $470,000. Further, he argues that the trial court abused its discretion by finding unfair hardship and awarding appellant's nonmarital interest of $125,000 and the parties' entire marital interest in the homestead to respondent, free and clear of any interest or claim on the part of appellant. We disagree.
Although the homestead was purchased with appellant's nonmarital funds prior to the parties' putative marriage, the trial court found that the certificate of title for the parties' homestead lists the parties as joint tenants, respondent was pregnant when the homestead was purchased, and appellant wished to set up a home for respondent. In addition, the trial court found that appellant wanted the property to go to respondent in the event that he died. Appellant does not dispute these factual findings or reference any evidence to the contrary. We conclude that the findings support the trial court's conclusion that appellant intended respondent to have an undivided one-half interest in the homestead property and that such an interest was given to respondent as a premarital gift. Thus, the trial court did not err in concluding that respondent held a nonmarital interest of $125,000 in the homestead property.
In addition, we reject appellant's contention that the trial court abused its discretion in making an unfair hardship finding. The trial court found the following: (1) appellant has repeatedly ignored court orders to make payments to respondent; (2) appellant has failed to disclose or has hidden assets outside the jurisdiction of the court; (3) appellant has unreasonably contributed to the length and expense of the dissolution proceeding; (4) respondent has diabetes, heart problems, high blood pressure, and asthma; (5) respondent's medical condition limits her employment opportunities; and (6) respondent has no retirement benefits or savings set aside for retirement. As to disparity, the trial court found that appellant had claimed over $9,600 per month in rental income from the ownership of 13 villas and 49 cabins in Saudi Arabia. In addition, the trial court found it likely that future orders to pay spousal maintenance, attorney's fees, maintenance arrearages, marital debts, or one-half the value of particular items of property under the control of appellant would be ignored. Appellant does not specifically claim that any of the trial court findings are not supported in the record. We conclude the trial court's findings easily support awarding all interest in the homestead to respondent, including appellant's nonmarital interest.
b. Other Marital Property and Debt
Appellant claims that the trial court erred in determining that the Wisconsin property was purchased with marital funds. We disagree. It is undisputed that the funds used to purchase the Wisconsin property were derived from the sale of rental property. Although appellant asserts that the rental property was purchased with nonmarital funds, he fails to reference support or documentation in the record in support of his assertion. Cf. Minn. R. Civ. App. P. 128.02 (each statement of a material fact is to be accompanied by a reference to the record). The trial court deemed the Wisconsin property marital, finding: (1) respondent was significantly involved in the purchase, management, and sale of the property; (2) sale proceeds were placed in both parties' names; and (3) appellant was not involved in the purchase and care of the Wisconsin property. Appellant failed to show by a preponderance of the evidence that the Wisconsin property is nonmarital.
Further, appellant argues that the trial court abused its discretion by awarding a disproportionate share of marital property to respondent, including the Wisconsin property and all personal property located in Minnesota. In addition, appellant claims the trial court abused its discretion by requiring appellant to pay the outstanding marital debt. We disagree. The trial court's findings in support of a finding of unfair hardship likewise support the trial court's property award and the requirement that appellant pay the outstanding debt.
In addition, we reject appellant's argument that the trial court improperly considered marital misconduct. See Minn. Stat. § 518.58, subd. 1 (court shall make property division without regard to marital misconduct). The misconduct noted by the trial court related to appellant's refusal to obey trial court orders.
Appellant contends, in light of the property awarded to respondent, that the trial court erred by preserving respondent's right to seek future maintenance. We reject appellant's argument because he does not argue that any findings of fact supporting the trial court's decision are clearly erroneous and his bare assertion does not provide a basis for reversal. See Schoepke, 290 Minn. at 519-20, 187 N.W.2d at 135 (stating unsupported assertions of error are waived unless inspection alone reveals prejudicial error).
Appellant argues that the trial court abused its discretion by ordering both parties to pay their own attorney fees despite a lack of evidence in the record that appellant is able to pay his own fees. We disagree. The trial court found that appellant unreasonably contributed to the length and expense of the proceeding, has failed to disclose significant assets outside the court's jurisdiction, and has an income in excess of $240,000 per year. From the record, we conclude the trial court's findings are supported by the record.