This opinion will be unpublished and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:

William K. Fruen, petitioner,

Appellant (C9-97-1043, C8-97-1535),

Respondent (C4-97-2066),


Mary Angela Fruen,

Respondent (C9-97-1043, C8-97-1535),

Appellant (C4-97-2066).

Filed May 26, 1998

Affirmed in part, reversed in part, and remanded

Schumacher, Judge

Hennepin County District Court

File No. DC122744

Theodore P. Wagensteen, Jr., 2225 Holly Lane, Plymouth, MN 55447 (for appellant/respondent William K. Fruen)

Margaret O'Sullivan Kane, 310 Dacotah Building, 370 Selby Avenue, St. Paul, MN 55102 (for respondent/appellant Mary Angela Fruen)

Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.



In three consolidated appeals from a dissolution judgment and various posttrial proceedings, appellant William K. Fruen (husband) challenges the property division, the finding of his income, and the awards to respondent Mary Angela Fruen (wife) of maintenance and attorney fees. Wife challenges aspects of the property division, a maintenance modification and claims the district court lacked jurisdiction to modify maintenance. We affirm in part, reverse in part, and remand.


1. The third appeal is wife's challenge to a posttrial order. She claims that because the prior appeals were pending and involved the same issues addressed in the order, the order should not have addressed maintenance, property and husband's income. See Amatuzio v. Amatuzio, 431 N.W.2d 588, 589 (Minn. App. 1988) (appeal deprives district court of jurisdiction to "amend or modify" issues on appeal or "necessarily involved" in pending appeal), review denied (Minn. July 27, 1989). The prior appeals involved the finding of husband's income and the propriety of his maintenance obligation as of the time of those rulings. Husband's motion to modify maintenance, which prompted the rulings wife challenges in the third appeal, alleged circumstances had substantially changed since the making of the rulings involved in the prior appeals. Thus, while the prior appeals involved the then existing findings and award, the issue in the modification proceeding was whether circumstances had substantially changed since the district court made the rulings involved in the prior appeals. Therefore, the district court did not lack jurisdiction to address the motion. See Minn. Stat. § 518.64, subd. 2 (1996) (district court has continuing jurisdiction to modify maintenance if party alleges substantially changed circumstances); Blomgren v. Blomgren, 386 N.W.2d 378, 380 (Minn. App. 1986) (when support modification is sought, change in circumstances must be measured against when support was last set or modified). Similarly, to the extent husband's motion sought an order requiring wife to sign documents needed to sell certain land, he was seeking to enforce the judgment provision requiring the parties to cooperate in selling the property. A district court retains jurisdiction to enforce its judgment pending appeal. David N. Volkmann Constr. v. Isaacs, 428 N.W.2d 875, 876-77 (Minn. App. 1988).

2. Husband claims the district court abused its discretion by imputing income to him. Income may be imputed to a maintenance obligor if the obligor is underemployed in bad faith. Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997). The district court found husband's income substantially decreased between July and September 1997 and that husband (a) did not fully explain the decrease; (b) knew "for a substantial period of time" that a major source of his funds was in "financial crisis[;]" (c) "lack[ed] effort" in finding another source of income; and (d) willfully failed to produce adequate income to meet his obligations. We defer to what is functionally the district court's credibility determination that husband acted in bad faith in allowing his income to stay artificially low. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations). The district court did not abuse its discretion in imputing income to husband.

3. Husband claims his modified maintenance obligation is excessive. While the district court did not explicitly state that husband's prior maintenance obligation was unreasonable and unfair under Minn. Stat. § 518.64, subd. 2, the court did note that a maintenance modification requires substantially changed circumstances that render the existing award unreasonable and unfair. Id. The court did, however, find husband's new maintenance obligation both "reasonable and fair." Because the district court applied the correct standard for modifying maintenance and stated the modified maintenance award was reasonable and fair, we conclude the modified maintenance award is not an abuse of the district court's broad discretion. We do so particularly in light of the financial data in this record. E.g., General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987) (whether to modify maintenance is within district court's "broad discretion").

4. Husband challenges aspects of the first amended judgment's property distribution. A district court has broad discretion when dividing property and the district court will be affirmed if its division "`has an acceptable basis in fact and principle even though [the appellate court] might have made a different disposition of the problem.'" Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986) (quoting Bollenbach v. Bollenbach, 285 Minn. 418, 426-27, 175 N.W.2d 148, 154 (1970)). Here, the property division was not an abuse of the district court's discretion. The record shows (a) the parties were married for 15 years; (b) the district court divided the parties' assets roughly equally; and (c) the district court ordered the use of proceeds of certain land to equalize the asset distribution. See Miller v. Miller, 352 N.W.2d 738, 742 (Minn. 1984) (equal division of property appropriate upon dissolution of long-term marriage); Lynch v. Lynch, 411 N.W.2d 263, 266 (Minn. App. 1987) (division of marital property need not be equal, only just and reasonable), review denied (Minn. Oct. 30, 1987). Also, because the district court valued the business it awarded husband at the amount the parties' experts agreed it was worth, we affirm that valuation. See Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975) (valuations affirmed if within limits of credible estimates of competent witnesses).

We reject husband's claim that the district court erred by not crediting him with pre-judgment amounts awarded wife to pay support arrears. Because a vehicle was ordered sold to pay the support arrears, we conclude its sale was neither a dissipation of marital assets under Minn. Stat. § 518.58, subd. 1a (1996) nor a sale ordered to preserve the value of the marital estate under Minn. Stat. § 518.58, subd. 3. See Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985) (statutory interpretation is legal question reviewed de novo). To treat the amount as a property advance to wife and as reducing husband's arrears would double count the amount in question.

Husband also challenges the district court's ruling that husband's payment of certain of wife's moving expenses was a payment from husband's income rather than a property advance. Even assuming the district court erred in doing so, given the size of the marital estate, the amount of the moving expenses, and the breadth of the district court's discretion in dividing property, we cannot say any such error is reversible. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis error); see also Minn. R. Civ. P. 61 (harmless error to be disregarded).

5. Husband claims the district court abused its discretion by not considering certain marital debts when dividing the assets and by assigning those debts to him. The district court has broad discretion in dividing debts and its division will be affirmed if it has an acceptable basis in fact, even if we might have reached a different decision. Bliss v. Bliss, 493 N.W.2d 583, 587 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). The district court found each party responsible for their own debts and required husband to pay any unpaid 1995 and 1996 joint taxes, penalties, and interest. On this record, we cannot say the district court abused its broad discretion in apportioning debts, particularly in light of (a) wife's limited income; (b) husband's a history of substantial (albeit, currently decreased) income; (c) husband's established career; (d) husband's part in generating the debts in question; and (e) husband's control over the marital finances. See, e.g., Lynch, 411 N.W.2d at 266 (affirming requirement husband pay all family debt); Maher v. Maher, 393 N.W.2d 190, 193 (Minn. App. 1986) (affirming requirement husband pay all debts where he was awarded marital share of business and assets were divided "essentially equally"); Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984) (affirming, where husband had "considerably greater resources," awards to wife of disproportionate share of assets and to husband of all debts).

6. Because the district court lost jurisdiction to address the issue of the equity in the Chartwell home before its most recent ruling, we review only the earlier rulings as they relate to the Chartwell equity. Wife argues husband's failure to pay the mortgage on the Chartwell property resulted in penalties, foreclosure on the property, and depletion of any equity that the parties could have shared. From the record currently before us, we are unable to discern what portion of the equity, if any, each party is entitled to receive. We reverse and remand this issue. On remand, the district court shall specifically address the amount of the Chartwell equity, the division of that equity, and the reasons for that division.

7. Husband contends the trial court abused its discretion by awarding wife attorney fees and making the award nondischargeable in bankruptcy. In dissolutions, attorney fee awards to spouses in need are considered debts for maintenance or support and are nondischargeable in bankruptcy. Foster v. Childers, 416 N.W.2d 781, 784 (Minn. App. 1987) (incorporating Minn. Stat. § 518.14 (relating to attorney fee awards in dissolutions) and 11 U.S.C.A. § 523(a)(5) (precluding discharge in bankruptcy of obligation to former spouse for maintenance or support arising out of dissolution decree)). Here, in the first amended judgment, the district court (a) made the findings necessary for a need-based fee award to wife under Minn. Stat. § 518.14, subd. 1 (1996) ; and (b) stated the fee award was in the nature of support and nondischargeable in bankruptcy. On this record, such a ruling was not an abuse of discretion.

8. We express no opinion on how to decide the remanded issues.

Affirmed in part, reversed in part, and remanded.