may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Lisa Jane Bartells,
Trent Douglas Bartells,
Filed May 18, 1999
Becker County District Court
File No. F0-97-397
Nathan Lindsley, 800 W. Main, Perham, MN 56573 (for respondent)
Carl E. Malmstrom, Thorwaldsen, Beeson, Mamlstrom, Sorum & Donehower, 1105 Highway 10 E., P.O. Box 1599, Detroit Lakes, MN 56502 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Short, Judge, and Holtan, Judge.[*]
Trent Douglas Bartells appeals from an amended judgment and decree awarding respondent Lisa Jane Bartells sole physical custody of the parties' minor son, valuing and dividing the parties' marital property, determining that a $5,000 gift from appellant's mother was martial property, and setting appellant's child support obligation at $592.75 per month. Because the trial court did not abuse its discretion and its findings are supported by the evidence and not clearly erroneous, we affirm.
The trial court in this case made the following findings supporting its decision to grant respondent sole physical custody of the child: (1) respondent has been the child's primary caretaker since his birth; (2) the child has established many close bonds with respondent's extended family; (3) respondent supported the child financially before the parties' marriage, during the marriage while appellant was unemployed, and after the parties' separation; (4) the child enjoys a close and intimate relationship with both parents; (5) respondent sought and obtained a restraining order against appellant for allegedly making abusive and harassing phone calls to her; (6) the parties have had some problems cooperating in raising the child; (7) the parties have conflicts regarding the child's discipline, activities, and friends; and (8) the parties are unable to cooperate in the child's day-to-day upbringing.
Appellant first claims that because both parties sought joint physical custody in their pleadings and because respondent did not request sole physical custody until the day of trial, he was prejudiced and denied the opportunity to prepare his own case and to test respondent's case through discovery, which might have included a custody study or retention of an expert. Appellant failed to place his objections to respondent's late request on the record. Thus, it is unclear whether he requested a continuance or an opportunity to conduct further discovery or obtain additional evidence. See Minn. R. Civ. P. 15.02 (court may grant continuance to enable party objecting to amendment to meet evidence allegedly not within issues raised by pleadings). Nor has he, on the record, identified the nature and extent of any prejudice. Under these circumstances, the trial court did not abuse its discretion by considering respondent's request for sole physical custody. Cf. Midway Ctr. Assocs. V. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (to prevail on appeal, appellant must show both error and prejudice).
Appellant next argues that the trial court's custody findings lack any evidentiary support in the record. Our review of a custody determination "is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985) (citations omitted). Moreover, the fact that a mother and father are equally qualified to raise the child does not mean that they are qualified to raise the child jointly. Under this limited standard of review and given the undisputed evidence on the parties' inability to cooperate, we conclude that the trial court did not clearly err in its findings or otherwise abuse its discretion by granting respondent sole physical custody of the child.
The trial court found that appellant was voluntarily underemployed based on his testimony. The court estimated appellant's gross monthly income at $3,360, which is loosely based on a 40-hour week at $20 per hour. With standard deductions, the court calculated appellant's net monthly income at $2,371 and set his child support obligation at $592.
Although appellant challenges the court's findings on his income as clearly erroneous and not supported by the evidence, he repeatedly testified that he could work construction whenever he "chose" to do so. Under these circumstances, the trial court properly considered appellant's earning capacity. See Franzen v. Borders, 521 N.W.2d 626, 629 (Minn. App. 1994); Minn. Stat. § 518.551, subd. 5b(d) (1998) (child support obligor must choose to be underemployed or unemployed in order for income to be imputed); Beede v. Law, 400 N.W.2d 831, 835 (Minn. App. 1987) (obligor's earning capacity is appropriate measure of income when it is impracticable to determine actual income or when income is unjustifiably self-limited). We further note that the court's calculation of appellant's income does not consider any additional money he might earn from his other businesses and that the net income figure reached by the trial court is consistent with appellant's own estimate of his monthly living expenses of $2,576, which he apparently has no trouble meeting. Under these circumstances, the trial court's determination of appellant's net income has a reasonable basis in fact, and we will affirm it. Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987).
First, appellant argues that the trial court erred in finding that a $5,000 gift he received from his mother was a marital asset. Because the money was used as a down payment on the parties' homestead and there was no testimony from the mother regarding her donative intent, we cannot conclude that the trial court's findings on this issue are clearly erroneous or that the trial court erred in characterizing this gift as marital property. See Minn. Stat. § 518.54, subd. 5(a) (marital property presumption may be overcome only by showing nonmarital character of property, defined as property "acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse"); Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997) (party seeking to establish nonmarital character of property must do so by preponderance of evidence; most important factor in determining whether gift is marital or nonmarital is donor's intent).
Second, appellant sought credit for a $2,500 marital credit card debt that he had paid. Although a trial court's apportionment of debt is treated and reviewed as a property division, debts paid during the marriage are not considered in this property division. Freking v. Freking, 479 N.W.2d 736, 740 (Minn. App. 1992); Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986), review denied (Minn. May 29, 1986). Thus, the trial court did not abuse its discretion by failing to consider this repaid debt in its property division.
Third, appellant challenges the trial court's finding that the parties' 1991 Ford Ranger was worth $6,500. Appellant testified that a "fair and reasonable" value for the vehicle was $9,775, based on his experience in the salvage business and on the book value, which he submitted as an exhibit. Appellant admitted, however, that the vehicle was damaged. Respondent valued the vehicle at $4,500, without further explanation. Because the trial court's value of $6,500 was within the range of the parties' two estimates, it was not clearly erroneous. See Kitchar v. Kitchar, 553 N.W.2d 97, 101 (Minn. App. 1996) (property value acceptable if it lies within reasonable range of figures), review denied (Minn. Oct. 29, 1996).
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.