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:
David H. Nord, petitioner,
Joyce E. Nord,
Filed July 27, 1999
Affirmed as modified
Hubbard County District Court
File No. F4-97-679
Mark Thomason, Thomason Law Office, Edgewater Office Plaza, Suite 1, 107 South Grove, PO Box 87, Park Rapids, MN 56470 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Toussaint, Chief Judge, and Anderson, Judge.
This appeal arises from the dissolution of the marriage of appellant and respondent. Appellant alleges the trial court erred in its division of the parties' property and debts and in its maintenance award. We affirm the division of property and debts and modify the maintenance award.
Appellant and respondent were married on March 18, 1961. Respondent is 56 years old and appellant is 58 years old. Both parties have similar education levels. They have high school diplomas and some college credits. Throughout the marriage, both parties were employed at various jobs. It appears the majority of appellant's work experience was as a monument salesman.
In 1998, appellant became disabled and since that time has received social security disability income. At the time of trial, he was receiving $893 per month. Respondent also suffered a disabling injury and has been receiving social security disability benefits since 1993. At the time of trial, she was receiving $680 per month. Neither party has worked since they began receiving social security disability income, and these benefits are their only source of income. Both parties testified it was unlikely they will reenter the workforce. The parties filed for personal bankruptcy in 1996 and were discharged of a significant amount of credit card debt.
On October 7, 1997, appellant served respondent with a summons and petition for dissolution of marriage. The parties stipulated to the sale of their homestead, and the net proceeds of the sale ($23,878.94) were deposited with the court administrator. The parties also agreed to the auction of personal property, which netted $10,193.14. The remaining issues were tried to the court.
The trial court awarded respondent the personal property in her possession valued at $4,475, her retirement account with Prudential Insurance, one-half of the Itasca-Mantrap capital credits worth $543.58, and the Prudential life insurance policies. She was ordered to pay appellant $484.80, one-half of the policy's cash value.
Appellant was awarded the personal property in his possession valued at $1,098, the 1988 Pontiac Bonneville valued at $3,490, a judgment against Floyd Barrett in the amount of $3,600, one-half of the Itasca-Mantrap capital credits worth $543.58, and the parties' dog. Appellant was also ordered to pay respondent $75 for the dog, $2,943 to equalize the personal property division, $2,500 to reimburse respondent for monies dissipated in gambling, and $2,016.24 for unaccounted-for personal property and the property appellant sold prior to the dissolution.
The parties stipulated that the Sears credit debt in the amount of $1,654 was marital and the trial court ordered each party to pay one-half. The trial court required appellant to repay the Capital One Visa in the amount of $7,800 and the Bravo Visa in the amount of $1,750. The trial court found the Visa card debts were obligations incurred by appellant after the 1996 bankruptcy and were largely due to his gambling activities.
The trial court found respondent's reasonable monthly expenses were $1,466 and she lacked sufficient property to meet her needs. The trial court found appellant's monthly budget of $1,873.73 was exaggerated and misleading because he had been sharing living expenses with another individual.
The trial court ordered spousal maintenance to respondent in the amount of $200 per month until she reaches the age of 65. At that time, she will receive $120 per month from her Prudential retirement plan.
Appellant appeals multiple aspects of the property award, the division of debt, and the maintenance award.
Appellant contends (1) he should not have been required to equalize the personal property award when he was given one-half of the Sears debt and all of the Visa debt; (2) that the judgment owed to Floyd Barrett is worthless; and (3) he should not have been required to reimburse respondent $2,500 for money dissipated in gambling. Appellant asserts the overall inequity of the property division resulted from the court's incorrect conclusion that he systematically gambled away the parties' assets in anticipation of dissolution.
The division of marital property is governed by Minn. Stat. § 518.58 (1998). Subdivision one of this statute provides:
Upon a dissolution of a marriage * * * the court shall make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property. The court shall base its findings on all relevant factors including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party. The court shall also consider the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker. It shall be conclusively presumed that each spouse made a substantial contribution to the acquisition of income and property while they were living together as husband and wife.
Minn. Stat. § 518.58, subd. 1.
The trial court has broad discretion in dividing marital property. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). And its division of property need not be mathematically equal. Johns v. Johns, 354 N.W.2d 564, 566 (Minn. App. 1984). We will affirm a division that is supported by the evidence in the record regardless of whether this court might have arrived at a different result. Justis v. Justis, 384 N.W.2d 885, 888-89 (Minn. App. 1986), review denied (Minn. May 29, 1986).
Given the trial court's broad discretion in making property awards, we conclude its division of property is not in error. The proceeds from the sale of the parties' home and the auction of their property were divided equally. Respondent received personal property valued at $5,603.38 and appellant received personal property in the amount of $9,216.38. Although the trial court's $2,943 award to respondent to equalize the property division was not precisely equal, we conclude it was within the trial court's discretion. The trial court properly considered respondent's advanced age, physical disability, and contributions to the marital assets both as a homemaker and through outside employment.
Awarding appellant the $3,600 judgment against Floyd Barrett was also within the court's discretion. Appellant testified he loaned the money to Barrett while they were gambling in Las Vegas, and that the debt was uncollectable. Appellant, however, produced no evidence that Barrett was judgment-proof, and the court was free to disbelieve appellant's testimony on this point. See General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987) (judging credibility is within the province of the fact-finder).
Although the record does not indicate appellant engaged in a scheme to systematically dissipate the parties' assets in anticipation of dissolution, it does support the conclusion that appellant dissipated the parties' assets by gambling during the marriage. Depreciation in the amount or value of the marital property is an appropriate factor for the court to consider in making its property award. Minn. Stat. § 518.58, subd. 1. Accordingly, we conclude the trial court did not abuse its discretion by taking appellant's gambling during the marriage into account.
2. Division of Debts
Appellant argues the trial court erred by requiring him to repay the Capital One Visa and Bravo Visa credit card debt. He contends the trial court improperly concluded he independently accumulated the debt by borrowing money to gamble.
The trial court's division of debts is treated in the same manner as its division of assets, and is "guided by equitable considerations." Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984) (quotation omitted). We review the division of marital debt under an abuse-of-discretion standard. Justis, 384 N.W.2d at 888-89.
The parties agreed the $9,550 credit card debt was accumulated after they filed bankruptcy in 1996. However, they presented conflicting testimony regarding the reason the debt was incurred. Appellant testified the credit cards were in his name, but were used to purchase things for both parties. Respondent testified she did not know what purchases were made with the credit cards, but assumed appellant used the cards to acquire gambling funds because the statements listed withdrawals from ATM machines located at casinos. After observing and listening to the parties, the trial court determined respondent's testimony was more credible than appellant's testimony regarding the accumulation of the debt. Giving due regard to the trial court's opportunity to judge the credibility of the witnesses, we conclude the trial court did not abuse its discretion in requiring appellant to repay all of the Visa card debt. See Minn. R. Civ. P. 52.01 (due regard is "given to the opportunity of the trial court to judge the credibility of witnesses"); see also Dahlberg, 358 N.W.2d at 80 (holding it was not abuse of discretion to require the husband to assume all of parties' marital debts, where most of the debts appeared to have been amassed by the husband without consulting his wife and the husband had greater resources).
Appellant argues the trial court erred in awarding respondent maintenance in the amount of $200 per month when she only requested $106.50 -- an amount sufficient to make her income equivalent to appellant's income. Upon our review of the record, we conclude it was appropriate for the trial court to award maintenance to respondent. She lacks sufficient property to provide for her needs and is unable to adequately support herself. She is 56 years old, permanently disabled and incapable of returning to the workforce. She also has limited work skills and education. See Minn. Stat. § 518.552, subd. 1 (1998) (setting forth permissible bases for granting maintenance).
But in light of appellant's limited ability to pay spousal maintenance, we conclude $200 per month is excessive. Appellant's sole source of income is social security disability of $893 per month. Contrary to the trial court's finding, there is nothing in the record indicating he is more capable of resuming employment than respondent. The uncontroverted testimony was that he is unable to return to the workforce. A payment of $106.50, as requested by respondent at trial, balances respondent's need and appellant's financial circumstances.
Affirmed as modified.