This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Carol J. Starbuck, petitioner,



Robert P. Starbuck,


Filed June 15, 1999

Affirmed; motion denied

Schumacher, Judge

Dakota County District Court

File No. F19714071

R. M. Bracewell, Melinda T. Hugdahl, R. M. Bracewell & Associates, 3470 Washington Drive, Suite 211, Eagan, MN 55122 (for respondent)

Nancy Murphy-Robinson, Cara A. Wittwer, Nancy Murphy-Robinson Law Office, 5215 Edina Industrial Boulevard, Edina, MN 55439 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Schultz, Judge.[*]



In this marital dissolution proceeding, appellant Robert P. Starbuck (father) challenges the visitation schedule and property division. Respondent Carol J. Starbuck (mother) also challenges the property division and moves for attorney fees on appeal. We affirm and deny the motion for attorney fees.


In the proceedings to dissolve their marriage, father objected to the guardian ad litem's report and was successful in seeking the appointment of a custody evaluator. The visitation recommendations by both the guardian ad litem and the evaluator are similar to the schedule contained in the dissolution judgment. Regarding property, the trial court rejected father's claims that he had nonmarital interests in the house and certain vehicles. Also, father is the beneficiary of a revocable trust from which the parties received disbursements. The trial court rejected mother's claims that interest on the trust's principal was marital property.


1. Father alleges the findings supporting the visitation schedule are inadequate under Minn. Stat. § 518.175, subd. 1 (1998), which requires visitation to be "as will enable the child and the noncustodial parent to maintain a child to parent relationship that will be in the best interests of the child." Visitation decisions are discretionary with the trial court. Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978). A trial court's findings of fact will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01; Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).

Here, the trial court found, among other things, that it was in the children's best interests to have regular visitation with father "in order to maintain a healthy parent-child relationship" and that "[r]easonable should include, but should not be limited to" that provided in the judgment. The trial court's findings indicate that it considered the relevant factors in setting visitation. Rosenfeld v. Rosenfeld, 311 Minn. 76, 82, 249 N.W.2d 168, 171 (1976). To the extent father assumes or alleges that more detailed findings are required, he neither cites any authority for that proposition nor specifically claims any prejudice resulting from the allegedly inadequate findings. See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (assignment of error based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error obvious on mere inspection); see also Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (to obtain reversal, appellant must show both error and prejudice). Prejudicial error is not obvious here and father has not shown the visitation schedule to be an abuse of the trial court's discretion.

2. The parties disagree over whether certain property is marital. Whether property is marital is a legal question we review de novo. Wiegers v. Wiegers, 467 N.W.2d 342, 344 (Minn. App. 1991); see Minn. Stat. § 518.54, subd. 5 (1998) (defining marital and nonmarital property). In addressing whether property is marital, appellate courts defer to trial court findings on the underlying facts. Johnson v. Johnson, 388 N.W.2d 47, 49 (Minn. App. 1986).

Here, mother admits father's down payment on the home was nonmarital. Mother claims, however, that father gifted an interest in the home to her. See McCulloch v. McCulloch, 435 N.W.2d 564, 568 (Minn. App. 1989) (nonmarital property may become marital if owner gifts it to spouse). A valid gift requires donative intent, delivery of the gift, and absolute disposition of the property. Id. Here, because mother lived in the house and because the house was placed in joint tenancy under mother's name, the only real question regards father's intent.

Intent questions are questions of fact. Id. Because testimony conflicts regarding father's intent, the question of father's intent is essentially a question of witness credibility. The trial court resolved that question against father and we defer to that resolution. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). Indeed, affirming a determination that a house held in joint tenancy is marital property is consistent with caselaw. See Olsen v. Olsen, 552 N.W.2d 290, 292-93 (Minn. App. 1996) (title documents are strong evidence of transferor's intent), aff'd 562 N.W.2d 797 (Minn. 1997).

Father argues that certain cash gifts from his parents were gifts to him only and, because they were used to improve the home, they should give him a nonmarital interest therein. See Minn. Stat. § 518.54, subd. 5 (gifts received by party during marriage are party's non-martial property). Mother argues the moneys were gifts to both parties. Neither of father's parents testified at trial. Because the trial court denied father a nonmarital interest in the home, it rejected his argument and treated the funds as marital property. On this record, we cannot say the trial court's determination is clearly erroneous. See Rinker v. Rinker, 358 N.W.2d 165, 167 (Minn. App. 1984) (appellate courts view record in light most favorable to trial court's findings); see also 14 Martin L. Swaden & Linda A. Olup, Minnesota Practice § 9.35 (donative intent is "an interpretation for the court" and court has "wide discretion in evaluating the evidence") (citing Gully v. Gully, 371 N.W.2d 63 (Minn. App. 1985)). A similar analysis addresses father's claim that he used funds from his nonmarital mutual fund for home improvements. Father has failed to demonstrate a nonmarital interest in the home.

Father claims nonmarital interests in a camper and a truck. He placed the camper in joint tenancy with mother and it was used by both parties. Mother was the primary user of the truck. The trial court did not credit father's argument and found he had either commingled funds or gifted the property to mother. Because both analyses could be supported by this record, father did not meet his burden of showing a nonmarital interest in either vehicle.

3. While mother concedes father's trust is his nonmarital property, she claims the interest on the trust principal should have been treated as marital property. Unless the increase in the value of a nonmarital asset is due to either party's effort, the increase is not subject to division. Duffey v. Duffey, 416 N.W.2d 830, 832-33 (Minn. App. 1987), review denied (Minn. Feb. 24, 1988). Though appreciation of a nonmarital asset is nonmarital, income received from a nonmarital asset is a marital asset. Swick v. Swick, 467 N.W.2d at 328, 331 (Minn. App. 1991), review denied (Minn. May 16, 1991).

Here, the trial court found that the trust and its interest were nonmarital property. Because the record shows father had little involvement in managing the trust and because interest earned by the trust belongs to the trust, rather than father, we cannot say, on this record, that mother has shown that the district court erred in refusing to treat the trust interest as marital property.

We note, however, that interest earned by a nonmarital asset can be marital property if it is realized and available to the parties as a liquid asset. Swick, 467 N.W.2d at 332. Here, mother showed via the parties' tax returns that a portion of the trust income was disbursed to the parties. Father testified, however, that the disbursements were made solely for the purpose of paying taxes on the trust and mother does not dispute this claim. Because taxes on the trust must be paid, paying those taxes is analogous to a business expense in the child-support context; such expenses are not included in the support obligor's income. See Bartl v. Bartl, 497 N.W.2d 295, 300 (Minn. App. 1993). Similarly, on this record we cannot say the district court erred in refusing to treat as marital property the trust disbursements used for the purpose of paying the trust's taxes. Indeed, were the trust disbursements deemed marital property, the trust taxes would also have to be treated as marital debts and, via payment of those taxes, mother would have already benefited from the trust disbursements.

Because we reject father's claims on appeal, we need not address mother's arguments regarding undue hardship and attorney fees. We deny mother's motion for attorney fees on appeal

Affirmed; motion denied.

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