may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Victoria Marie Miller, petitioner,
George Ernest Miller,
Filed February 3, 1998
Toussaint, Chief Judge
Hennepin County District Court
File No. DC212084
A. Larry Katz, Brian L. Sobol, Katz & Manka, Ltd., 4150 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for respondent wife)
Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Forsberg, Judge.[*]
Appellant George Ernest Miller challenges (1) the amount and duration of his maintenance obligation; (2) the requirement he secure maintenance; (3) the finding he dissipated marital assets; (4) the valuations of his medical practice and profit sharing plan; and (5) the awards to respondent Victoria Marie Miller of certain property, maintenance arrears, and attorney fees. Because the district court's findings are not clearly erroneous and its rulings within its discretion, we affirm.
Appellant claims the district court erred by setting maintenance without requiring respondent to use income from her property award to support herself, as case law requires. E.g., Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985). The district court found "many" assets awarded respondent are "not income-producing" and that she should not have to liquidate them. This is consistent with case law. See Dougherty v. Dougherty, 443 N.W.2d 193, 195 (Minn. App. 1989)(stating maintenance recipients not required to invade principal of property award to pay expenses). Because appellant has not shown respondent could earn more than nominal income on the liquid portion of her property award, we will not reverse on this basis. See Minn. R. Civ. P. 61 (harmless error to be ignored). Similarly, because respondent's need for maintenance is a function of her marital standard of living, Minn. Stat. § 518.552, subd. 2(c) (1996), and because the marital standard of living included certain real property, the district court did not abuse its discretion by not requiring respondent to sell that real property.
Appellant claims the district court should have imputed more income to respondent than it did. The cases on which appellant relies are distinguishable from this case. Also, on this issue, the district court found the testimony of appellant and his expert not credible, or inconsistent with the marital standard of living, or both. We defer to the district court's view of the testimony. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations).
Appellant challenges the findings of both parties' monthly expenses. Because the district court apparently found respondent's claimed expenses credible but appellant's claimed expenses not credible, we defer to those findings under Sefkow. Appellant states it is unclear on which finding of his income his maintenance obligation was based. Because we affirm the finding of appellant's expenses and because even the lower finding of his income is substantial, we will not reverse on this basis. Minn. R. Civ. P. 61.
Appellant claims the transfer could not have been made in contemplation of dissolution as required by Minn. Stat. § 518.58, subd. 1a, because it occurred two and-a-half years before the parties separated. In a series of findings, the district court functionally found the transfers in question were a strategic decision made by appellant in contemplation of the dissolution that was certain to occur should respondent learn the truth about his extramarital relationship and children. This record supports the finding that husband breached his fiduciary duty to respondent. See Lossing v. Lossing, 403 N.W.2d 688, 690 (Minn. App. 1987) (requiring record be viewed in light most favorable to findings).
Appellant claims that under Minn. Stat. § 518.58, subd. 1 (1996), which requires marital property to be divided "without regard to marital misconduct," whether respondent knew about his nonmarital children is irrelevant to the property division. Even if appellant correctly reads this provision of the property-division statute to conflict with the provision making him liable for breaching his fiduciary duty, the latter provision is more specific. It is implicated only if he breaches his fiduciary duty, rather than in all property divisions like the general property-division provision. Such a conflict between general and specific statutory provisions is resolved in favor of the specific provision. Minn. Stat. § 645.26, subd. 1 (1996).
Appellant claims the transfer was not a "dissipation" of assets. By statute, he is liable if he "transferred, encumbered, concealed, or disposed of marital assets except in the usual course of business or for the necessities of life[.]" Minn. Stat. § 518.58, subd. 1a. Appellant makes no claim the transfer occurred in the usual course of his medical practice. Nor can it be said the transfer was to pay for the necessities of life. Because Estate of Jeruzal v. Jeruzal, 269 Minn. 183, 130 N.W.2d 473 (1964) is distinguishable, appellant's reliance on it is misplaced.
Appellant claims respondent is not entitled to a share of assets acquired after the date she would have sought to dissolve the marriage if she had known of his infidelity. But marital property is defined, in part, as property acquired "any time during the existence of the marriage relation[.]" Minn. Stat. § 518.54, subd. 5 (1996). Here, assets were acquired during the marriage but after appellant began his extra-marital relationship.
Appellant claims the finding of the amount of additional assets that would have been available for distribution but for the transfer is speculative and ignores the taxes that would have been paid on the income from the transferred assets. Respondent's expert testified that the income projections for the funds in question were based on actual rates of return. Further, even if the effective tax rate is as appellant claims, the district court overstated the amount in question by less than the difference in the parties' estimated values of appellant's medical practice, an amount the district court did not find significant.
Appellant claims the district court's division of the parties' profit-sharing plans is unfair because respondent's income will exceed his after the parties retire. Had the transfer to the irrevocable trust not occurred or had appellant not established trusts for his nonmarital children, or both, he would have additional assets for retirement purposes.
Appellant complains about the method respondent's expert used to value the medical practice. To the extent appellant's complaints were not brought up in district court, they need not be reviewed. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). To the extent appellant's objections were raised in district court, they are functionally a request that this court find respondent's expert to be not credible or that this court re-evaluate the weight to be given the testimony of respondent's expert, or both. Such requests are improper. See Sefkow, 427 N.W.2d at 210 (appellate courts defer to district court credibility determinations); J.L.B. v. T.E.B., 474 N.W.2d 599, 603 (Minn. App. 1991) (appellate courts defer to district court determinations of weight to be given evidence), review denied (Minn. Oct 11, 1991). Further, while respondent's expert admitted estimating appellant's reasonable compensation based on compensation for a specialty other than the one husband practices, the expert stated he adjusted the compensation figure to account for differences between the two specialties.
Appellant claims the district court erred by ignoring the parties' stipulation on the valuation of his profit-sharing plan. Where, as here, parties stipulate to the value of a contested asset and the party possessing the information on which the stipulation is to be based later admits, against his interest, the asset has a greater value, the district court may adopt that greater value.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI.