This opinion will be unpublished and

may not be cited except as provided by

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




In Re the Marriage of:

James A. Ayers, petitioner,



Joanna Marie Ayers,


Filed November 18, 1997


Huspeni, Judge

Itasca County District Court

File No. F796692

James H. Henrichsen, 215 First Ave. N.W., Grand Rapids, MN 55744 (for appellant)

Larke L. Huntley, 432 Northeast Third Ave., Grand Rapids, MN 55744 (for respondent)

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Kalitowski, Judge.



Appellant challenges the denial of his motion for a new trial in his dissolution proceeding, arguing that the district court abused its discretion in awarding respondent temporary maintenance and a judgment lien on appellant's property. Because we conclude that neither award was an abuse of discretion, we affirm.


Appellant James Ayers, now 63, and respondent Joanna Ayers, now 57, were married from 1992 to 1996. Appellant owns and operates a resort in which he had an 87.43% equity at the time of the marriage, when the resort was valued at $160,000. The parties made improvements to the resort. They stipulated to its value at the time of dissolution as $234,000, of which $15,000 was passive appreciation. The court set its value at $219,000 and determined appellant's nonmarital share to be $191,471.70. The remainder of the set value ($27,528.30), was deemed to be increase from improvements made during the marriage. This amount became part of the total marital estate, valued by the court at $30,778.30. As respondent's share of the marital estate ($15,389.15), she was awarded $2,250 in marital property and a judgment lien of $13,139.15 on the resort. Respondent also has nonmarital property valued at over $83,500.

Prior to the marriage, respondent worked as a nurse's aide, and during the marriage she helped operate the resort, performing light work 15-30 hours per week. Her physical condition limited her ability to perform additional work, and she has been unemployed outside of the resort since the marriage. The court found that she currently has no income and that her monthly expenses are $1,369. The court found that appellant's monthly income is $4,815.33 and his monthly expenses are $2,850. Appellant was ordered to pay maintenance of $250 per month until respondent remarries, turns 62, or begins receiving social security. Appellant moved unsuccessfully for a new trial or in the alternative for relief from judgment and amendment of the court's order setting the lien and the maintenance award. He challenges both the denial of his motion and the judgment.


Spousal maintenance

The standard of review on spousal maintenance is "whether the trial court abused the wide discretion accorded to it." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). In awarding maintenance, the court made findings in regard to each of the seven criteria listed in Minn. Stat. § 518.552, subd. 2. Appellant challenges the findings on his income, his expenses, and respondent's ability to work.

The district court found that appellant's 1997 income will be approximately $57,784: his social security plus $21,120 from renting his cabins at 100% capacity for four months per year and $31,080 from renting his campsites at 75% capacity for four months per year. Appellant claims that there was no testimony to support this finding. He testified, however, that his resort is open from Memorial Day to Labor Day and for parts of the fishing and deer hunting seasons. Appellant offers no evidence to show that the district court's estimate of his 1997 income is not accurate. It was not an abuse of discretion for the district court to find that appellant will have an income of $57,784 in 1997.

Appellant also challenges the district court's finding that his monthly expenses are $2,850, rather than his claimed amount, $3,309.45. The court considered appellant's list of combined personal and business expenses and deducted resort expenses for the months the resort is closed, as well as seasonal expenses.[1] Appellant claims there was no testimony to support the district court's reductions of his monthly expenses, but offers no evidence to refute the court's findings that expenses incurred by the operation of the resort would not be incurred when the resort was closed and that seasonal expenses would not be incurred throughout the year. The district court's determination that appellant's monthly expenses were $2,850 is supported by the evidence.

Appellant argues that the maintenance award is not consistent with the court's finding "that the Respondent was able to work 15-30 hours per week." However, appellant misstates the court's finding. The court actually found that:

[Respondent] has two replaced hips which severely limit her ability to work on her feet. [Respondent] was able to work at the resort only 15-30 hours per week doing laundry and light cleaning. [Respondent's] education and employment prospects are severely limited due to her age and physical disability.

In denying appellant's motion for a new trial, the court noted that light resort work "was available to [respondent] specifically because of her marriage. A comparable position would be nearly impossible to find."

The findings on appellant's income and expenses and on respondent's inability to work are supported by evidence in the record. The award of spousal maintenance was not an abuse of discretion.

The property award

A district court has broad discretion in dividing property, and there must be a clearly erroneous conclusion that is against logic and the facts on record before a reviewing court will find an abuse of that discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Respondent's lien of $13,139.15 on the resort was based on the district court's application of the formula set out in Schmitz v. Schmitz, 309 N.W.2d 748 (Minn. 1981), for dividing property in which one party has both a marital and a nonmarital interest. The nonmarital interest of a party in property acquired before the marriage is "the proportion [the party's] net equity at the date of the marriage bore to the value of the property at the date of the marriage." Id. at 750.

Two weeks after the marriage, appellant made a $10,000 payment on the mortgage, increasing his equity in the property to $149,882.27, or approximately 93% of $160,000. He argues that the court should have used the date of the payment, not the date of the marriage, and established his nonmarital share at 93% rather than 87.43%. The record shows that respondent had given appellant $6,000 a few days prior to the mortgage payment, and that she had been contributing both money and services to the resort before that. While the district court found the $10,000 to be nonmarital funds, the evidence indicates otherwise.[2] A similar situation occurred in Cummings v. Cummings, 376 N.W.2d 726 (Minn. App. 1985), where one party assisted the other with a business. Where both spouses are contributing effort and funds to commercial property during a marriage,

[t]he increase in equity is not merely the increase in value of property acquired before the marriage. Rather, the additional equity resulted from income earned during the marriage that was used to reduce the mortgage and to make improvements to the property. Even if the income came from the earnings of [the business operated on the commercial property,] it would have freed up part of the joint pool of income to go toward the procurement of other marital assets. Furthermore, there was uncontroverted testimony that [one party] contributed to the marital relationship as a homemaker, a bookkeeper, and a receptionist. Thus, we find that the increase in equity cannot be traced directly to [the other party's] nonmarital property, and that the trial court erred in classifying it as nonmarital property.

Id. at 731-32 (quotation and citations omitted). Here, uncontroverted testimony showed that respondent was contributing funds to and helping with the operation of the resort when the parties married. By the time appellant made the $10,000 payment, his funds were no longer separate from respondent's. "There is no authority in Minnesota for nonmarital classification of an investment to include the portion financed during the marriage." Campion v. Campion, 385 N.W.2d 1, 5 (Minn. App. 1986) (rejecting the view that mortgage payments on nonmarital property made with the rental proceeds of that property were an increase in nonmarital equity of the property even absent evidence that the rental income was attributable to the efforts of both spouses). See also Nardini v. Nardini, 414 N.W.2d 184, 192 (Minn. 1987) ("the increase in the value of nonmarital property attributable to the efforts of one or both spouses during their marriage, like the increase resulting from the application of marital funds, is marital property"); Stroh v. Stroh, 383 N.W.2d 402, 406-07 (Minn. App. 1986) (rejecting the view that the date of the marriage can be ignored in looking at the value of an investment that one party initiated with nonmarital funds and the Kentucky holding that marital contributions include only funds, not personal efforts); Quinlivan v. Quinlivan, 359 N.W.2d 276, 279 (Minn. App. 1984) (using property other than marital property to make mortgage payments on the homestead "freed up part of the joint pool of appellant's and respondent's wages which would normally go for mortgage payments to go toward the procurement of other marital assets"). The district court did not err in applying the Schmitz formula using appellant's equity on the date of the marriage.

The court did not abuse its discretion in awarding either temporary monthly maintenance of $250 or the judgment lien of $13,139.15.


[1] The court reduced the monthly housecleaning expense of $120 to $30 for the months the resort is closed and reduced the monthly snow removal cost of $115 to $0 for seven months from mid-April through mid-November. The court did not reduce those expenses that appellant incurred personally, such as haircuts, or that the resort incurred every month, such as insurance and mortgage payments.

[ ]2 We note that the district court used appellant's equity at the date of marriage, not his equity after the mortgage payment, as a basis for the Schmitz formula calculation. Thus, the district court in effect treated the mortgage payment as having been made with marital funds. Where a finding (here that the $10,000 was nonmarital property), although erroneous, did not affect the determination of the case, it is immaterial. Quinn v. Olson, 34 Minn. 422, 424, 26 N.W. 230, 231 (1886).