Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Deborah D. Snyder, petitioner,
Robert S. Snyder,
Filed February 24, 1998
File No. 108086
Robert H. Zalk, Jennifer L. Wood, Zalk & Eayrs, P.A., 5861 Cedar Lake Rd., Minneapolis, MN 55416 (for respondent)
Alan C. Eidsness, Neil M. Kliebenstein, Henson & Efron, P.A., 1200 Title Insurance Bldg., 400 Second Ave. S., Minneapolis, MN 55401 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Foley, Judge.
*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Appellant argues that the trial court's valuation of marital property was clearly erroneous and that the court abused its discretion in awarding attorney fees to respondent. We affirm in part, reverse in part, and remand for additional findings.
The parties separated in 1994, but agreed to continue their joint management of HKH and divide equally any income from HKH and TriStar. Each party then began, without the other's knowledge, to withdraw funds from HKH and its subsidiaries. Respondent withdrew a total of $114,241. Appellant withdrew a total of $215,244; he diverted some of the funds into other personal businesses (Alexandria Properties, LLC, and Snyder & Associates, LLC) and loaned $70,000 of the funds to Lorraine Lucas, with whom he lived.
The parties' marriage was dissolved by judgment entered on December 20, 1996. By that time, HKH was subject to deferred tax liabilities of $1,017,786 and unpaid payroll taxes of $85,531 (totaling $1,093,317); its mortgage reserve and bond reserve had been exhausted. TriStar's only remaining asset, an unpaid $70,000 management fee owed by HKH, was contingent on the successful resolution of two lawsuits.
In the judgment, the trial court valued HKH and TriStar as follows:
HKH Tax Liability (1,093,317)
Fort Morgan 200,000
Cable JV (3,500)
Commercial Lot 0
Residential Lot 6,500
President Homes 0
TriStar 70,000 ____
NET VALUE OF HKH AND
TRISTAR ASSETS (120,317)
The final property division can be summarized as follows:
HKH & TriStar (120,317) -
Maplewood Rd. home 100,000 -
Lucas loan repayment 70,000 -
Respondent's IRA 0 -
Appellant's IRA - 9,200
Jeeps 10,323 3,500
Personal property 45,600 49,175
Subtotal 232,271 277,119
Equalization Payment 22,424 (22,424)
TOTAL 254,695 254,695
As the above chart shows, the court awarded HKH, its subsidiaries, and TriStar to respondent, crediting her with receipt of a $120,317 negative asset in the overall property division. The court also ordered that the repayment of the $70,000 Lucas loan go to respondent. The court also ordered appellant to make an equalization payment of $22,424 to respondent.
The court ordered appellant to pay $80,000 of respondent's attorney fees both as a bad faith sanction and because the parties had disparate abilities to pay those fees. The trial court later awarded respondent an additional $3,000 in attorney fees.
In an order for amended judgment dated April 29, 1997, the court justified its negative valuation of HKH on the basis of the "strong likelihood" that respondent would be held personally liable for HKH's tax liability. The amended judgment was entered on May 6, 1997. Appellant appeals from the original judgment, the March 1997 order awarding $3,000 in additional attorney fees, and the amended judgment.
Appellant agrees that the trial court properly included in his cash distribution from HKH the $70,000 he loaned to Lucas, but asserts that the court improperly awarded to respondent the repayment of the same $70,000, in effect double-counting it.
The issue is properly before this court. At an April 1997 hearing, the trial court agreed to consider additional information regarding possible miscalculations in previous orders. Appellant's counsel raised the "double-counting" issue with the court by letter dated April 14, 1997. Because the trial court had an opportunity to consider this issue, we may consider it on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
Respondent argues that the double-counting should be permitted to offset other undisclosed distributions taken by appellant. But double-counting the $70,000 against appellant to offset other, unspecified financial wrongdoing is speculative; it does not have "an acceptable basis in fact and principle." Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984). The Lucas loan should only have been counted once, as a distribution to appellant. We reverse and remand with instructions not to award respondent repayment of the Lucas loan.
Appellant argues that the trial court abused its discretion by valuing HKH at a negative amount. The negative value was based on the assumption that respondent would be held personally liable for HKH's deferred tax liability.
Tax consequences that are not speculative may be considered in a property division. Balogh v. Balogh, 356 N.W.2d 307, 310-11 (Minn. App. 1984). But, if speculative or uncertain, tax consequences should not be considered in dividing marital property. Nolan v. Nolan, 354 N.W.2d 509, 513 (Minn. App. 1984); see also Miller v. Miller, 352 N.W.2d 738, 744 (Minn. 1984) (court "should not speculate about possible tax consequences [without] sufficient information that the actual tax liability resulting from the property division can be calculated with a reasonable degree of certainty"); O'Brien v. O'Brien, 343 N.W.2d 850, 854 (Minn. 1984) (where specific evidence is lacking, court must not consider tax consequences of possible future sale of homestead or stock transfer); Nemitz v. Nemitz, 376 N.W.2d 243, 248 (Minn. App. 1985) (failure to consider tax consequences not error where appellant did not advise court which marital property he intended to sell or how he might shelter gains from such sale).
The existing record does not support the trial court's negative valuation of HKH. Respondent has provided no evidence that HKH's liquidation is inevitable or that she would be personally liable for HKH's unpaid taxes if HKH were liquidated. On this record, the trial court erroneously undervalued HKH. We remand to the trial court for findings regarding the likelihood that respondent will be held personally liable for HKH's deferred tax liability. The value of HKH should be adjusted accordingly.
Appellant argues that the trial court should have valued HKH and TriStar separately. By valuing them together, the court allowed HKH's negative value to negate TriStar's potentially positive value. The record shows that HKH and TriStar are separate corporations that should have been valued separately. Failure to do so will be of consequence if HKH is, on remand, not given a negative value. We remand to the trial court with instructions to value HKH and TriStar separately.
(1) that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;
(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and
(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.
Minn. Stat. § 518.14, subd. 1 (1996). An award of fees is also appropriate where one party has proceeded in bad faith. Minn. R. Civ. P. 11. An award of attorney fees "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion." Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987).
Appellant's due process arguments notwithstanding, there was no prejudice. In light of appellant's tactics at trial and the parties' disparate abilities to pay the fees, the trial court's decision to award attorney fees was not an abuse of discretion.
In summary, we affirm the trial court's decision to award attorney fees to respondent. We reverse the trial court's treatment of TriStar and the Lucas loan and its valuation of HKH and TriStar. We remand for additional findings regarding the valuation of HKH and TriStar.
Affirmed in part, reversed in part, and remanded.
FOLEY, Judge (concurring specially)
I concur that there should be a remand in this case on division of property rights, but I write separately to urge the trial court to review and clarify its award of attorney fees, which are in a substantial amount, $80,000, in favor of respondent wife.
It seems clear enough that a portion of the award of attorney fees constitutes a sanction against appellant husband for his conduct in mishandling the assets of the parties, but the trial court did not allocate an amount for sanctions as against a general award where there is a disparity of assets. This should be made clear. Attorney fees in divorce cases continue to escalate, but where sanctions are appropriate, reasonable sums should be awarded.
[ 1] This sum includes the $70,000 appellant loaned to Lorraine Lucas.