may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Roberta Kay Silveira, petitioner,
Richard John Rodrigues-Silveira,
Filed March 2, 1999
Affirmed as modified
Hennepin County District Court
File No. 223052
Carl A. Blondin, 7475-15th Street North, #204, Oakdale, MN 55128 (for appellant)
Lisa M. Elliott, 304 York Business Center, 3209 West 76th Street, Edina, MN 55435 (for respondent)
Mary C. Lauhead, 3985 Clover Avenue, St. Paul, MN 55127 (guardian ad litem)
Considered and decided by Harten, Presiding Judge, Huspeni, Judge,[*] and Holtan, Judge.[**]
In this marital dissolution action, appellant challenges the district court's decisions that respondent is entitled to visitation with the parties' son, that appellant may not move out of state with the son, and that appellant must have therapy; she also challenges the reservation of maintenance and property division. Because we see no error of law or abuse of discretion in the district court's determinations, we affirm.
Appellant was then earning about $2,266 monthly. Respondent was unemployed due to his physical disabilities, which include diabetes, heart failure, angina, and hypertension. He also has a personality disorder requiring medication and therapy. Because of respondent's disabilities, social security pays him $771 monthly and A.J.S. $407 monthly.
After a two-day trial, a dissolution judgment was issued. Appellant filed several posttrial motions to amend the findings. Following a hearing, some of these were granted and some denied in the amended judgment.
Appellant now challenges both the judgment and the amended judgment on the grounds that respondent's murder conviction statutorily precludes him from visitation and that the district court erred in (1) denying appellant permission to move out of state with the child, (2) reserving spousal maintenance and ordering appellant to pay for respondent's medical insurance, (3) awarding A.J.S.'s retroactive social security benefits to respondent, (4) valuing appellant's pension, (5) refusing to award one-half of respondent's social security to appellant, (6) ordering appellant to continue in therapy and respondent and A.J.S. to continue in joint therapy, and (7) allocating marital assets. Respondent seeks attorney fees on appeal.
In her dissolution petition, appellant requested physical custody of the parties' son "subject to visitation by [r]espondent." During trial, she made no objection to respondent's visitation. She now argues that Minn. Stat. § 518.179 (1998) precludes his visitation. While not unmindful of the general prohibition against addressing what was not considered by the district court, see Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988), we nevertheless address the merits of appellant's argument. See Minn. R. Civ. App. P. 103.04 (appellate court may address any issue as justice requires).
Minn. Stat. § 518.179 provides:
[I]f a person seeking child custody or visitation has been convicted of [murder] the person seeking custody or visitation has the burden to prove that custody or visitation by that person is in the best interests of the child if:
* * * *
(3) the victim of the crime was a family or household member as defined in section 518B.01, subdivision 2.
If this section applies the court may not grant custody or visitation to the person unless it finds that the custody or visitation is in the best interests of the child. If the victim of the crime was a family or household member, the standard of proof is clear and convincing evidence.
A family or household member is defined by Minn. Stat. § 518B.01, subd. 2(b)(1) (1998), to include "spouses and former spouses." Appellant argues that this statute precludes respondent's visitation because the district court did not explicitly find that respondent proved by clear and convincing evidence that his visitation is in the best interests of A.J.S.
Because appellant made no objection to respondent's visitation, the district court had no reason to make a finding that visitation is in the best interests of A.J.S. The court did find, however, that:
It would be detrimental to the child if [appellant] has sole custody of the child and authority over the child's upbringing. She has had that authority during the past two years and the child's school performance has substantially deteriorated to the point that the child is failing eighth grade. * * * *
Prior to the time when [respondent] left the home, [respondent] was helping the child with his homework and ensuring that his work was completed. [Respondent] also assisted in ensuring that the child participated in his extra-curricular events. [Appellant] currently leaves the home at 8:30 p.m. Monday through Friday and doesn't arrive home until about 6:30 a.m. on the following morning; therefore, the child is unsupervised during this timeframe.
Court Services found and the Court concurs that it would be detrimental to the child for [appellant] to have sole authority over the child. However, given the acrimony and domestic history between the parties, disputes would be a likely result of mandatory cooperation.
* * * *
The minor child objects to visiting with [respondent] and currently the Court has ordered [appellant] to cooperate with [a therapist] to insure that the child visits with [respondent] in a therapeutic setting with [the therapist]. [Appellant's] cooperation with respect to these visits has been extremely problematic and [appellant] has failed to provide the transportation for the child to attend many of these sessions.
[Appellant] indicates that she is not preventing the child from visiting. However, the Court observed [appellant] during the trial. She clearly does not want the child to visit. She is extremely angry with [respondent]. She may even be fearful because of the way [respondent] acted in the past, in part due to his physical and chemical problems related to his illnesses.
* * * *
* * * It would be best for the child if [respondent] could look after the child every day after school to ensure that the child attends to his homework; if the child could spend his nights with [respondent] so that the child has supervision while [appellant] works; and if the parties could cooperate in dealing with the child. * * * *
From the district court's findings that an improved relationship with respondent is in the child's best interests and that giving appellant sole authority over the child is not in his best interests, we infer a finding that visitation with respondent is in the best interests of A.J.S. See In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996) (on appeal "evidence and its reasonable inferences must be viewed in the light most favorable to the prevailing party."). Given this inference, Minn. Stat. § 518.179 does not preclude respondent's visitation.
2. Appellant's Move
A district court has broad discretion in deciding visitation questions and will not be reversed absent an abuse of discretion. Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978). Minn. Stat. § 518.175, subd. 3 (1998), provides that:
The custodial parent shall not move the residence of the child to another state except upon order of the court * * * . If the purpose of the move is to interfere with visitation rights given to the noncustodial parent by the decree, the court shall not permit the child's residence to be moved to another state.
The district court denied appellant permission to move out of state with the child because her testimony indicated that she was moving to deprive respondent of access to A.J.S. and because the relationship between respondent and A.J.S. was not such that they would be able to enjoy extended visitation during school vacations.
Appellant cites the testimony of the court services family counselor who evaluated the parties and A.J.S. to argue that it is in the child's best interest not to have contact with respondent. The counselor's testimony was somewhat ambivalent. He noted that the relationship between A.J.S. and respondent was poor, that the relationship between A.J.S. and appellant was "distant, disconnected and cool," that A.J.S. was attempting to be loyal to appellant by not having a relationship with respondent, and that moving out of state would not be in the child's best interest because reestablishing his relationship with respondent would be more difficult if airfare were required for visits.
The counselor's testimony, viewed as a whole, does not support appellant's argument that she should be permitted to move out of state with A.J.S. because visitation with respondent is not in the child's best interest. The district court did not abuse its discretion in refusing to permit the move until a relationship between the child and respondent has been established.
3. Spousal Maintenance and Health Insurance Payment
The standard of review on appeal from a trial court's determination of a maintenance award is whether the trial court abused the wide discretion accorded to it.
Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). The district court reserved the issue of spousal maintenance after finding that respondent is unable to meet his expenses and unlikely ever to be self-supporting and that appellant is currently unable to assist him because she must provide for herself and A.J.S.
Appellant does not challenge the accuracy of the findings, but she argues that maintenance should have been denied because respondent's financial difficulties stem from his dissipation of marital assets. A determination of maintenance, however, is based on a party's present and future ability to be self-supporting. Minn. Stat. § 518.552 (1998), lists eight factors pertinent to awarding maintenance, none of which is the pre-dissolution spending habits of the recipient. Reserving maintenance until the time when appellant need no longer support A.J.S. was not an abuse of discretion.
Appellant also challenges the requirement that she pay $61 monthly for respondent's medical insurance. However, as appellant agrees, the amount she pays her employer for respondent's coverage is de minimis and there is no evidence that he could get like coverage for a comparable cost from the state or elsewhere, even were he able to afford it. The requirement that appellant pay for respondent's medical coverage was not an abuse of discretion.
4. Award of Retroactive Social Security Benefits for A.J.S.
A district court has broad discretion in dividing property; absent an abuse of discretion, its decision must stand. Rutten v. Rutten, 347 N.W.2d 47, 50-51 (Minn. 1984). The district court found that the parties' assets were a homestead with an equity of $15,000; $8,814 remaining from a retroactive social security payment made to respondent; $5,026.50 remaining from a retroactive social security payment for the benefit of A.J.S.; and appellant's retirement pension in an unknown amount. The district court awarded appellant the homestead and respondent the two social security payments; appellant's $15,000 award was therefore $1,160 greater than respondent's award of $13,840.
Appellant claims the district court erred in identifying the remainder of a payment made for the benefit of A.J.S. as a marital asset, citing Danielson v. Danielson, 392 N.W.2d 570 (Minn. App. 1986). Danielson is factually distinguishable. In that case, part of the social security funds paid for the benefit of the children went into the children's separate accounts; these were held not to be marital property. Id. at 573. Here, there was no separate account for A.J.S.; the retroactive payment reimbursed the parties for support that should have been provided for A.J.S. during the marriage. The remainder of the retroactive payment made to support A.J.S. was properly considered a marital asset of those who had supported him. In light of the total division of marital assets, there was no abuse of discretion in awarding this amount to respondent.
5. Appellant's Pension
The district court found that "at the time of the pretrial conference in this matter, [September 4, 1997] the value of [appellant's] civil service retirement fund was $14,399.82." But the district court ordered that respondent receive one-half the value of the pension accrued between the date of the marriage and May 15, 1998. Appellant for the first time on appeal challenges the district court's use of the May 15, 1998, date.
We agree with appellant that the pretrial conference date used in the district court's valuation finding is correct, not the later date used in its order. See Minn. Stat. § 518.58, subd. 1 (1998) (establishing the date "of the initially scheduled prehearing settlement conference" as the date for valuation of assets). We note also that the district court has retained jurisdiction over the division of appellant's pension. We modify the judgment to direct that the correct date be used when the pension is finally divided.
6. Respondent's Benefits
The district court found that respondent's monthly social security income is $771 ($814.50 less $43.50 Medicare deduction). Appellant challenges this finding, arguing that the Medicare deduction should be considered income. She cites no authority for this view. While there is no statutory specification of items to be excluded in calculating income for maintenance purposes, Minn. Stat. § 518.551, subd. 5(b) (1998), excludes the cost of an individual's health and hospitalization coverage from the calculation of income for child support purposes. Appellant has failed to show that the court erred in inferring that Medicare payments deducted from social security do not qualify as income.
Appellant also argues that the district court failed to consider respondent's monthly social security payment in calculating marital asset division or in addressing spousal maintenance. Future social security benefits are to be treated as income, not as property. Elliott v. Elliott, 274 N.W.2d 75, 78 (Minn. 1978) ("the trial court correctly considered the pension rights as property rights and social security benefits as income * * *"). Accordingly, the district court correctly considered respondent's future social security payments as income.
7. Orders for Continued Therapy
The district court ordered both parties and A.J.S. to continue in therapy as per the testimony and recommendation of the court services family counselor. Appellant argues that the district court erred in ordering her to continue with therapy. She testified that she had met with the therapist three times and the therapist told her she "did not need to come back," but offered no evidence corroborating that testimony. The court services family counselor testified that appellant should "do some sort of therapy so that she can and would give [A.J.S.] not only permission but instruction to have a relationship with his father." Although we might have handled this differently, the district court did not err in ordering that appellant have therapy in an effort to resolve this issue. See Rohling v. Rohling, 379 N.W.2d 519, 524 (Minn. 1986) (stating that district court will be affirmed if its decision has a basis in fact and principle, even if appellate court would have ruled otherwise).
Appellant also objects to the court's order for joint therapy sessions for A.J.S. and respondent on the ground that the court services family counselor recommended that joint sessions not begin until respondent has resolved his personality issues. But the counselor stated that while having each party work on individual issues first was his "personal preference," accelerating the process would be possible with extensive therapy. A.J.S. is already age 15. Once again, we might have handled this differently, but ordering the most rapid means of improving his relationship with respondent was not an abuse of discretion. Id.
8. Division of Marital Assets
a. The homestead
After the parties stipulated that the equity in the homestead was $15,000, appellant was awarded the homestead and ordered to make the mortgage payments. She did not make the payments; the homestead was foreclosed in December 1998. Appellant argues that the property division was inequitable because she owed $4,200 in mortgage payments and late fees at the time of trial. But the $4,200 debt was incurred after the parties separated and was appellant's responsibility; it was not a marital debt.
b. Respondent's retroactive social security
Respondent's retroactive social security payment was actually $18,390.90. Of this, $8,814 was considered a marital asset and awarded to respondent. The remainder was paid to respondent's former attorney, who has now been disbarred. The district court did not consider the remainder in dividing the parties' assets because it found that "[respondent] is unclear as to whether he will receive any of these monies [paid to the former attorney]."
Appellant concedes that the amount respondent will recover is speculative, but claims he should be able to recover from the Minnesota Board of Professional Responsibility Fund and that she is entitled to half his recovery. The trial court did not abuse its discretion in failing to consider a speculative recovery as a marital asset.
9. Respondent's attorney fees on appeal
Respondent moved for attorney fees on appeal following oral argument. Minn. Stat. § 518.14 (1998), provides that in a dissolution action a court may award a party attorney fees if it finds that the other party has the means to pay. Appellant does not have the ability to pay. Respondent also argues that he is entitled to fees because appellant unjustly contributed to the length and expense of the proceedings. We disagree and deny respondent's motion.
Because we see no abuse of discretion in the visitation arrangements, the refusal to allow appellant to move with the child, the reservation of spousal maintenance, the property division, or the order for appellant to continue in therapy, we affirm.
Affirmed as modified.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.
[**] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.
 Appellant also claims the district court's finding that "the murder alone cannot be the reason to deprive respondent of access to the child" violates Minn. Stat. § 518.179. But appellant misreads the statute; it does not forbid those convicted of murder of a former spouse to have visitation.
 Moreover, appellant acknowledges that "both parties drained assets to sustain their previous life style," so the district court's failure to consider that respondent had done so was not inequitable.
 The other portion of the retroactive payment, $4,788, had been released to appellant and was used for the pre-trial support of A.J.S. by the parties' agreement. Appellant was awarded the ongoing social security payments for A.J.S.
 We note that appellant again raises an issue for the first time on appeal. See Thiele, 425 N.W.2d at 582.