may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Marriage of:
Patricia M. Edwards, petitioner,
Michael A. Edwards,
Filed July 27, 1999
Affirmed; motion denied
Winona County District Court
File No. F4961379
Michael A. Edwards, Post Office Box 142, 9336 East Main Street, Solon Springs, WI 54873 (pro se appellant)
Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.
Appellant Michael A. Edwards (father) challenges the trial court's marital dissolution judgment, arguing the court abused its discretion by failing to reopen the record and in awarding custody, spousal maintenance, child support, and attorney fees. Respondent Patricia M. Edwards (mother) moves to strike father's reply brief. We affirm the district court and deny mother's motion.
Mother filed for marital dissolution against father. Their two youngest children, C.J.E., born August 31, 1979, and P.V.E., born March 4, 1981, are subjects of this custody dispute. C.J.E. is a special needs child incapable of self-support. The trial court held a two-day trial, at which father appeared pro se. The trial court granted mother sole physical and legal custody of C.J.E. and P.V.E., and allocated marital household debt to father. The court ordered father to pay child support, permanent spousal maintenance, and mother's attorney fees. Father filed a motion for a new trial and/or amended findings. The trial court reduced the permanent spousal maintenance and child support awards, but denied father's motion to reopen the record to take additional testimony. Father appealed. Mother moved to strike father's reply brief.
A trial court has broad discretion with regard to the division of property, maintenance, and provision for the custody and support of children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). This court will reverse the trial court only for a clear abuse of that discretion. See, e.g., Ferlitto v. Ferlitto, 565 N.W.2d 35, 36 (Minn. App. 1997) (property distribution); Carrick v. Carrick, 560 N.W.2d 407, 409-10 (Minn. App. 1997) (spousal maintenance); Korf v. Korf, 553 N.W.2d 706, 708 (Minn. App. 1996) (child support); Coleman v. Coleman, 493 N.W.2d 133, 135 (Minn. App. 1992) (custody decisions). In order for this court to find the trial court abused its discretion, there must be a clearly erroneous conclusion that is against logic and the facts on record. Rutten, 347 N.W.2d at 50.
1. Father argues the trial court abused its discretion by failing to reopen the record for additional testimony so as to allow him and the children to testify. At trial, father called fourteen witnesses. At one point, the trial court warned father that he had yet to present his own testimony and was running out of time. After father's final witness, the trial court told father he had the right to testify. Father told the court he did not wish to testify and had submitted all of the evidence he intended to submit. Because the court specifically asked father if he wished to testify, and father declined, the trial court's refusal to reopen the record to take his testimony is not an abuse of discretion.
As to testimony of the two children, despite father's continual urging, the trial court consistently indicated it was disinclined to have the children testify. The children were represented by a guardian ad litem who believed they should not be present for trial and recommended against having them testify. At some point, the court spoke via telephone with P.V.E.. Father now protests that the trial court did not make any record of that telephone conversation, but the conversation took place with his consent. We conclude the trial court did not abuse its discretion in denying father's request to reopen the record.
2. Father argues that the trial court abused its discretion by granting mother sole physical and legal custody of the minor children. When determining custody, the trial court must consider the best interests of the children in view of the statutory factors. Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993). 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. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). In this case, the trial court made specific findings as to the best interest factors laid out in Minn. Stat. § 518.17, subd. 1 (1998).
Father disputes the trial court's findings that he was absent from the home, that it would be harmful for the children to leave mother's home, and that the parents' inability to cooperate in rearing their children was uncontested. Joint custody "should be granted only where the parents can cooperatively deal with parenting decisions." Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993) (quotation omitted). Despite father's assertions, the record supports the trial court's findings that the parents were unable to cooperate, father was absent from the home, and it was in the children's best interest to remain in mother's home.
Father also protests the trial court's "verbatim adoption" of mother's proposed findings. The trial court did not adopt the proposed findings in their entirety. Furthermore, the trial court amended its findings, reducing father's monthly child support and maintenance obligation below the amount mother proposed. Adopting proposed findings is not reversible error unless the findings are clearly erroneous. Kohn v. City of Minneapolis Fire Dep't, 583 N.W.2d 7, 14 (Minn. App. 1998), review denied (Minn. Oct. 20, 1998). The record does not reveal that the trial court's findings are clearly erroneous.
3. Father argues the trial court abused its discretion in awarding mother permanent spousal maintenance. The trial court awarded mother $300 a month in permanent maintenance after considering the statutory factors enumerated in Minn. Stat. § 518.552 (1998). Father suggests the trial court inaccurately determined mother's ability to contribute to her own needs, because mother is a nurse who resides in her father's home. The trial court found C.J.E.'s supervision needs limited mother's ability to find full-time employment. As to father's finances, the trial court noted father offered no evidence of his expenses or needs. See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (stating party cannot complain when party's own failure to submit documentation is partially responsible for denial of party's motion to reduce maintenance). We conclude the spousal maintenance award is not against logic and the facts on record.
4. Father argues the trial court abused its discretion by failing to offset his child support obligation during summer visitation. Where parents have joint custody, a court should determine a party's support obligation according to the period of time the other parent has custody. Valento v. Valento, 385 N.W.2d 860, 862-63 (Minn. App. 1986), review denied (Minn. June 30, 1986). Father urges recalculation of the child support award using the Valento formula. But since mother has sole physical and legal custody of the children all year, including summer visitation, this approach is not mandatory and father is not entitled to any offsetting. Furthermore, father does not appear to have argued for such an offset before the trial court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate court will not consider matters not argued in court below).
5. Father argues the trial court abused its discretion by ordering father to pay all of the parties' marital household liabilities. The trial court has broad discretion in dividing marital property, including the homestead. Holmberg v. Holmberg, 529 N.W.2d 456, 461 (Minn. App. 1995), review denied (Minn. May 31, 1995). In this case, the trial court found the homestead was lost in foreclosure due to father's inaction despite his total control of the premises. Father did not disclose the foreclosure to his wife or attempt to sell or redeem the property. Furthermore, father dissipated marital assets and incurred debts unknown to mother. During trial, father agreed he was responsible for certain debts. In this context, the trial court's decision to assign marital debts exclusively to father has a reasonable basis in fact and principle. See DuBois v. DuBois, 335 N.W.2d 503, 507 (Minn. 1983) (property division affirmed if "reasonable and acceptable basis in fact and principle").
6. Father argues the trial court abused its discretion in ordering father to pay $8,500 of mother's attorney fees. An award of attorney fees "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion." Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987) (citation omitted). Fee awards may be based on the impact a party's behavior had on the costs of litigation, in addition to financial resources. Holder v. Holder, 403 N.W.2d 269, 271 (Minn. App. 1987). In this case, the trial court found father's behavior unreasonably contributed to the length and expense of the proceedings, and father but not mother had the means to pay. Accordingly, the award of attorney fees was not an abuse of discretion.
7. Mother asks this court to strike father's reply brief, contending it is not confined to new matter raised in her brief, introduces evidence not in the record, and does not adequately cite the record. See Minn. R. Civ. App. P. 128.02, subd. 3 ("reply brief must be confined to new matter raised in the brief of the respondent"); Minn. R. Civ. App. P. 128.03 (stating references in briefs shall be made to record). Father's reply brief is generally limited to the issues before the court and contains citations to the record. Although the reply brief does contain some discussion without references to the record and arguably not directly responsive to mother's brief, we disregard these defects as they do not frustrate review and father is pro se. See Thorp Loan and Thrift Co. v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990) (stating appellate court is disposed to disregard defects in pro se brief where record is adequate for review), review denied (Minn. Apr. 13, 1990).
Affirmed; motion denied.