This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-98-642

C6-98-653

In Re the Marriage of:

Beth Anne Champlin, petitioner,

Respondent,

vs.

Glenn Martin Champlin,

Appellant.

AND

In the Matter of:

Beth Anne Champlin, petitioner,

Respondent,

vs.

Glenn Martin Champlin,

Appellant.

Filed September 15, 1998

Affirmed

Huspeni, Judge

Wright County District Court

File No.F9961256

Sara Jo Peotter, 2110 Lexington Ave. S., P. O. Box 21603, Eagan, MN 55121 (for appellant)

Cara A. Wittwer, Shadduck, Young & Brown, LLP, 63 Oak Ave. S., P. O. Box 859, Annandale, MN 55302 (for respondent)

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Thoreen, Judge.[*]

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

Appellant challenges the denial of his motion for a new trial, the finding that he was guilty of domestic abuse, the award of physical and legal custody of the parties' children to respondent, the division of marital property, and the imputation of income in setting appellant's child support obligation. Because the finding is not clearly erroneous and because we see no abuse of discretion in any of the trial court's decisions, we affirm.

FACTS

Appellant Glenn Martin Champlin and respondent Beth Anne Champlin have two sons, J.M.C., 13, and A.M.C., 12. During the parties' 13-year marriage, respondent stayed at home with the children and appellant worked for Custom Built Furniture by Pierre. In 1990, the family moved into a lakeside home.

When the parties separated, appellant remained in the homestead. A temporary order gave respondent custody of the boys and ordered appellant to pay child support, $500 towards respondent's attorney fees, and the parties' credit card debt. Appellant did not comply with this order, and respondent applied for child support collection services. Appellant then quit his job to begin a career as an independent maker of custom furniture; he testified that he has not sought another permanent job because of his belief that God wants him to work independently.

The record reflects that during the marriage there were numerous conflicts over financial matters and over providing medical treatment or medication to the children. Appellant let the children's medical insurance lapse.

Shortly before trial, respondent arrived a few minutes early at appellant's home to pick up the boys after visitation. The boys were not ready, and respondent went into the house to collect their clothes. Appellant became angry, grabbed respondent, and threw or shoved her outside. She landed on J.M.C.

Respondent moved for a domestic abuse order for protection (OFP). A hearing on her motion immediately preceded the trial. The court issued the OFP, awarded sole legal and physical custody to respondent, established short-term visitation on condition that appellant participate in a domestic abuse program and long-term visitation on verification that appellant had successfully completed such a program, awarded temporary possession of the homestead to appellant and required him to make mortgage payments, ordered the sale of the homestead and division of the proceeds between the parties, divided personal property and vehicles, awarded respondent $5,000 to equalize the property division, ordered appellant to pay $676 in monthly child support using the guideline amount for appellant's imputed income based on the amount he had earned prior to quitting his job, found appellant in contempt of court for refusing to comply with the temporary order, sentenced him to 90 days, and stayed execution on condition that appellant comply with court orders.[1]

Appellant challenges the denial of his motion for a new trial, the finding of assault and domestic abuse, the grant of custody, the valuation of assets, and the imputation of income in setting child support. His appeals from the OFP and the judgment have been consolidated.

D E C I S I O N

1. Denial of the Motion for a New Trial

"Ordinarily, the decision to grant a new trial does lie within the sound discretion of the trial court and will not be disturbed absent a clear abuse of that discretion." Halla Nursery v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). Where the trial court exercised no discretion but instead based its order upon an error of law, however, a de novo standard of review applies. Id.

Appellant brought the motion under a provision of Minn. R. Civ. P. 59.01, which states that after a bench trial the court may open judgment, take additional testimony, amend the findings of fact and conclusions of law, and direct entry of a new judgment. He submitted letters, exhibits, and affidavits with his posttrial motion. The court reviewed but declined to consider this posttrial evidence, holding that a trial court is "not free to consider evidence presented after the trial has concluded absent fraud or a showing that such evidence is `newly discovered'."

Appellant argues that this holding is an error of law because it violates Minn. R. Civ. P. 59.02, providing:

A motion made pursuant to Rule 59.01 shall be made and heard on the files, exhibits, and minutes of the court. Pertinent facts that would not be part of the minutes may be shown by affidavit.

However, the trial court's decision on the posttrial motion does accurately reflect Minn. R. Civ. P. 59.01, providing that a new trial may be granted for "[m]aterial evidence newly discovered, which with reasonable diligence could not have been found and produced at the trial." See Minnesota Mut. Fire & Cas. Co. v. Retrum, 456 N.W.2d 719, 723 (Minn. App. 1990) (trial court did not abuse its discretion by denying a motion for a new trial where, among other things, the motion was based on "new factual arguments"); see also Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974) (when considering motion for amended findings, district court "may neither go outside the record, nor consider new evidence.").

Appellant does not argue that the posttrial evidence was unavailable at the time of trial.[2] Instead, he argues that Minn. R. Civ. P. 59.02 eradicates the Minn. R. Civ. P. 59.01 requirement that, to justify a new trial, evidence must be material, newly discovered, and unable to have been discovered with due diligence at the time of trial. We see no support for this view.

The law is well settled that before a new trial can be granted on the ground of newly discovered evidence the party seeking the same must show affirmatively by his affidavits on the motion not only that such evidence was not discovered until after trial, but also that it could not have been discovered before trial by the exercise of reasonable diligence. * * * In this connection, he must state with particularity what he did to discover such evidence before trial so the court may determine whether he has exercised the required diligence.

Le Neau v. Nessett, 292 Minn. 242, 247, 194 N.W.2d 580, 583-84 (1972) (citation omitted). Appellant does not meet this standard. The trial court committed no error of law in denying a motion for a new trial on the basis of the evidence submitted with the motion.

2. Findings of Assault and Domestic Abuse

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. The court found:

64. [Appellant] verbally abused [respondent] in front of the children * * *. The police had to be called when [appellant] refused to leave. The children were present and were traumatized by what they saw. [Appellant] threatened to kill [respondent] and was led away screaming.

65. [Appellant] directly injured [respondent] in June, 1997 and caused injury to [J.M.C.]. A domestic abuse order for protection issued after full hearing before this Court immediately before this dissolution trial commenced. * * * This June, 1997 act of domestic abuse illustrated [appellant's] angry and controlling nature and was very harmful to the children, whose trauma was evident to the Court when they testified about it in chambers. [Appellant's] version of the events of that evening was not credible.

Appellant alleges three errors in this finding. First, he claims error in finding assault, saying he did not intend to harm respondent, but only to pick her up and carry her out of the house. However, the force he exerted in picking respondent up and propelling her out of the house injured both her and J.M.C. Second, appellant claims error in finding visible injuries to respondent and J.M.C. because the photos showing the injuries should not have been admitted as evidence. However, the photos were taken at the request of the sheriff's department and were properly admitted into evidence without objection. Third, appellant challenges the finding that the children were afraid because that finding is based only on respondent's testimony. The court was well within its discretion in believing respondent's assertion that her sons were afraid during the fight between their parents. Appellant's arguments ignore the deference due to the trial court's credibility determinations.

The findings demonstrate that the trial court weighed the credibility of testimony presented by all four witnesses to the incident: appellant, respondent, and their two sons. Particularly in light of the deference due to the trial court's opportunity to judge the credibility of witnesses, we see no basis for holding that its finding of assault and domestic abuse was clearly erroneous.

3. The Custody Award

A trial court has broad discretion to provide for the custody of the parties' children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). The trial court considered each of the 12 factors enumerated in Minn. Stat. § 518.17, subd. 1(a) (1996). The court found only one factor, the children's preference, to favor the joint custody requested by appellant over the sole custody requested by respondent: the boys said they would be happy to spend alternate weeks with each parent. The court found that three factors favored neither party: the parents' preferences; the children's adjustment to home, school, and community; and the children's cultural background.

The remaining eight factors were found to favor sole legal and physical custody with respondent: (1) respondent has indisputably been the primary caretaker, both before and after the separation; (2) respondent was found to have a more intimate relationship with the children because she puts their needs first, seeking to distance them from the disagreements between herself and appellant rather than involve them, as appellant tries to do, and that she does not try to turn the boys against appellant, while he disparages her to the boys; (3) respondent was found to interact better with the boys because she is more inclined to plan activities around them, while appellant is more inclined to take them along to his own church activities or his jobs; (4) because the boys have lived with respondent since the separation in 1995, staying with her will best preserve continuity; (5) because appellant will need to sell the family home where he is living, respondent is able to provide a more stable environment for them; (6) regarding the parties' mental health, the court found that appellant "is a very controlling individual" who believes his controlling nature is justified by the Bible, that appellant must always have his own way, that he refused to pay court-ordered child support, that he did not comply with the order for protection, and that he has not applied for jobs since quitting his employment; (7) the court found that while both parties love the children, respondent will put them first, while appellant will put his religion first, money second, and the children third; and (8) as to domestic abuse, the court noted that appellant had abused respondent in front of the boys, traumatizing them.

The court also analyzed the four factors relevant to joint custody set out in Minn. Stat. § 518.17, subd. 2 (1996). The court found the parties cannot cooperate in raising the children because of the intensity of appellant's hate of respondent, that the parties cannot resolve disputes except by doing things appellant's way, that the children need one clear voice in authority, not authority divided between two conflicting parents, and that there has been domestic abuse on the part of appellant. An appellate court will not reverse a custody determination unless the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law; the trial court's findings will be sustained unless they are clearly erroneous. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). The court's conclusion that joint custody is not appropriate here and that sole legal and physical custody with respondent is best for these children is well supported by the evidence and is not clearly erroneous.

Appellant argues that the court put disproportionate emphasis on one incident of abuse. However, the finding of abuse affected only one of 12 factors in the custody determination and only one of four in determining the appropriateness of joint custody; moreover, the court is mandated to consider abuse in making a custody determination. The basis for the trial court's custody determination was much broader than the incident of abuse.[3]

Appellant also challenges the court's impartiality, arguing that the finding of contempt demonstrated the court's disbelief of any positive evidence about appellant. But the court provided ample support for the contempt finding: appellant failed to comply with the temporary order to pay child support, respondent's attorney fees, and the credit card debt although appellant had money available for these payments, and appellant used money for other purposes, such as large donations to his church and purchasing a ring, despite his child support arrearages of $8,330. The finding of contempt does not demonstrate that the court lacked impartiality.

4. The Property Valuation

A. Appellant's Tools

This court does not require that a trial court be exact in its valuation of assets; it is necessary only for the trial court's value to be within a reasonable range of figures. Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979). In dividing the parties' property, the trial court noted that appellant's tools were worth $8,000. Appellant claims this was an error because a posttrial appraisal valued the tools closer to $1,500 than to $8,000.

The trial court based its value of the tools on appellant's answer to interrogatories, in which he said one of his assets was his tools, worth approximately $8,000. At trial, appellant testified that he had listed the value of his tools as approximately $8,000. The court therefore had a reasonable basis for its value of the tools.

B. The Homestead

The parties had very little equity in the house at the time of trial. The trial court set the value of the homestead at $80,000 and ordered that it be sold and the equity divided equally between the parties. Appellant was given the right to stay in the homestead pending its sale and the obligation to make the mortgage payments. Contrary to the dissolution order, appellant did not make the mortgage payments; the house was in foreclosure and listed for sale at the time of the hearing on posttrial motions.

The court had awarded respondent two liens on appellant's share of the proceeds: $8,330 to pay child support arrearages and $5,000 to equalize the property division. Appellant's ground for objecting to these liens is not clear. In any event, the property was foreclosed and sold, so the liens are now moot.

There was no abuse of discretion in valuing and dividing the parties' property.

5. Child Support

The trial court has broad discretion to provide for support of the parties' children; this court will not reverse a child support decision unless the decision was clearly erroneous. Rutten, 347 N.W.2d at 50-51.

Minn. Stat. § 518.551, subd. 5b(d) (1996), provides that if the court finds an obligor parent is voluntarily unemployed or underemployed, the court may base child support on a determination of imputed income. Imputed income is the estimated earning ability based on earning history and the availability of jobs for an individual with the obligor's qualifications. Minn. Stat. § 518.551, subd. 5b(d). Appellant and his former employer testified that appellant had worked for the employer for 13 years and was making $16 per hour when he quit. Appellant was found to be disqualified for reemployment insurance benefits. He testified that he does not plan to seek or accept employment from anyone else because working for someone else would not be doing what God has called appellant to do, i.e., make custom furniture on his own. Thus, appellant's own testimony provided an adequate basis for the court's finding that he is voluntarily underemployed.

Appellant testified that he is now getting more jobs and that he has a number of marketable skills. Appellant's records indicate that more money was going into his account than he claimed to be earning, and he acknowledged receiving some income in cash that he did not report. The court did not abuse its discretion in imputing income to appellant for the purpose of setting child support.

We see no abuse of discretion in the denial of the motion for a new trial, the finding of assault, the custody determination, the division of assets, or the setting of child support, and therefore affirm.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Neither party submitted proposed findings. Counsel for respondent explained at oral argument that the court drafted and sent preliminary findings which respondent's counsel then had typed. We note that the findings produced by the court are commendably detailed and extensive.

[2] Appellant's trial counsel was not his counsel on appeal.

[3] Appellant appears to argue that the court erred in not basing its determination exclusively on another factor, namely the boys' preference for joint custody. However, the court did not ignore this factor, and there is no support for the view that the children's preference supercedes all other considerations. See Minn. Stat. § 518.17, subd. 1 (when addressing child's best interests, court "may not use one factor to the exclusion of all others").