This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


In Re the Marriage of:
Gail A.E. Van Schaack, petitioner,


Harding Ellis Van Schaack,

Filed September 21, 1999
Affirmed; motions granted in part
Foley, Judge[*]

Hennepin County District Court
File No. 221209

Joan H. Lucas, 700 Saint Paul Building, Six West Fifth St., St. Paul, MN 55102 (for respondent)

Gary A. Weissman, Weissman Law Office, Suite 500, 701 Fourth Ave. S., Minneapolis, MN 55415 (for appellant)

Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

Appellant challenges the district court's decision to divide marital assets equally despite a disparity in the parties' nonmarital wealth. By notice of review, respondent challenges the district court's decisions to reserve spousal maintenance for appellant and to deny respondent's motion for attorney fees. Respondent also moves to strike appellant's reply brief and an attachment included with the reply brief. We affirm and grant respondent's motions in part.


The parties were married in 1975. In 1992, appellant Harding Ellis Van Schaack was disabled by severe recurrent depression, which continues to disable him. The couple separated in 1994, and in 1995 respondent Gail A.E. Van Schaack served appellant with a petition to dissolve the marriage. The parties signed a marital termination agreement in December 1996, but disputes arose and appellant withdrew from the agreement.

A trial began in July 1998. At its conclusion in August 1998, the court distributed the marital property equally, despite appellant's argument that he should receive a larger portion of the marital assets because respondent had more nonmarital property. The court also reserved jurisdiction over appellant's request for spousal maintenance, in the event that appellant lost his disability insurance income. Additionally, the court denied respondent's motion for attorney fees despite her allegations that appellant unreasonably contributed to delays in the proceeding by backing out of the divorce agreement and arguing for an unequal marital property distribution. This appeal and notice of review followed.


I. Marital Property Distribution

Marital property must be distributed equitably. Minn. Stat. § 518.58, subd. 1 (1998). The trial court equally divided the couple's marital property, and appellant argues that the distribution was inequitable because of the disparity in the parties' nonmarital assets. The trial court's distribution of marital property will not be reversed absent an abuse of discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

Appellant notes that an equitable division of marital property is not necessarily a mathematically equal division. Crosby v. Crosby, 587 N.W.2d 292, 297 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). But an equal division of marital property is not necessarily inequitable just because the parties have disparate nonmarital resources. Ward v. Ward, 453 N.W.2d 729, 733 (Minn. App. 1990) (severe disparity between parties required to sustain finding of unfair hardship necessary to apportion nonmarital property), review denied (Minn. June 6, 1990). Indeed, upon the dissolution of a long-term marriage, an equal division of marital property is presumptively equitable. Miller v. Miller, 352 N.W.2d 738, 742 (Minn. 1984).

Clearly, the district court, when distributing marital property, must consider relevant factors, including each party's income, estate, and needs. Minn. Stat. § 518.58, subd. 1. The district court found that, aside from appellant's share of the marital property, he has $76,943 in nonmarital assets, $48,348 annual income from insurance benefits (for his disability), the homestead, and one of the couple's cars.

The trial court's discretion in dividing property is broad. Carrick v. Carrick, 560 N.W.2d 407, 413 (Minn. App. 1997). While respondent may end up with more total property (nonmarital and marital combined), appellant, who is left with a substantial income, a house, and a car, and $1,000 less in monthly expenses than respondent, has not shown the property division to be inequitable.

II. Spousal Maintenance

Respondent challenges the trial court's decision to reserve jurisdiction over appellant's request for spousal maintenance. Such a decision is not reversed unless the court abused its broad discretion. Campion v. Campion, 385 N.W.2d 1, 6 (Minn. App. 1986).

The trial court may choose to reserve jurisdiction over the maintenance issue in marriage dissolution. Minn. Stat. § 518.55, subd. 1 (1998). The court found that appellant's ability to meet his needs was contingent on his income from insurance benefits, and reserved jurisdiction in the event those benefits should end. Reserving jurisdiction over maintenance is appropriate in a situation where there is a "potential impact" on "possible future needs" of a party. Fastner v. Fastner, 427 N.W.2d 691, 700 (Minn. App. 1988). Reservation allows the court to later assess and address future changes in one party's situation as those changes arise, without prematurely burdening the other party. Van De Loo v. Van De Loo, 346 N.W.2d 173, 178 (Minn. App. 1984).

Respondent argues that the contingency that appellant's insurance benefits may end is too speculative to merit reservation. But Minn. Stat. § 518.55, subd. 1, does not limit the district court's power to reserve jurisdiction based on the probability that it will be exercised in the future. Further, this court has approved reserving jurisdiction in situations where the contingency was uncertain. See, e.g., Wopata v. Wopata, 498 N.W.2d 478, 485 (Minn. App. 1993) (reservation appropriate where health uncertain); Fastner, 427 N.W.2d at 700 (reservation compelled by potential impact of disability); Van De Loo, 346 N.W.2d at 178 (reservation appropriate where wife had uncertain health despite recent progress).

Respondent also argues that appellant's situation is not going to change because he is already sick. But this does not guarantee that the existing "safety net" of his insurance benefits will continue to meet his expenses. Appellant is presently disabled and dependent on insurance benefits. Because of his needs and his dependence on those benefits, reservation was within the court's discretion.

Respondent suggests that she is prejudiced because appellant might irresponsibly terminate his own insurance benefits. This possibility was adequately addressed by the trial court's specific provision that appellant "should not be eligible for spousal maintenance if [he] acted either negligently or intentionally to lose his disability benefits."

III. Attorney Fees

Respondent also challenges the trial court's denial of her motion for attorney fees. The trial court's decision regarding attorney fees will not be reversed absent an abuse of discretion. Korf v. Korf, 553 N.W.2d 706, 711 (Minn. App. 1996).

The court may award fees in a marriage dissolution if a party unreasonably contributed to the length of the proceedings. Minn. Stat. § 518.14, subd. 1 (1998). Respondent claims that appellant unreasonably delayed the dissolution by avoiding the marital termination agreement and arguing for an unequal marital property distribution.

There were bona fide disputes about the marital termination agreement. The agreement stated that respondent had fully disclosed her interest in the trust fund. At trial, respondent testified that she told appellant she had an interest in the trust but did not tell him the value of that interest. Additionally, the parties seemed to have a bona fide dispute as to a "tax split" issue in the agreement. Further, the record indicates appellant may have signed the agreement without advice of counsel, and counsel, upon reviewing the agreement, determined that appellant had based his assent on a misunderstanding of Minnesota law. Appellant did not unreasonably delay the proceedings by withdrawing from the agreement.

As discussed above, the trial court did not abuse its discretion when it divided the marital property. But appellant had a colorable argument that the division of the marital property should reflect the apparent disparity in the parties' nonmarital estates because the resources of the parties are a consideration when dividing marital property. Minn. Stat. § 518.58, subd. 1. Additionally, this argument did not substantially delay the proceedings.

The trial court acted within its discretion by denying respondent's motion for attorney fees.

IV. Respondents Motions

Respondent moved this court to strike appellant's reply brief and a document attached to it. Although appellant anticipated some of respondent's arguments in his principal brief and addressed them again in his reply brief, the reply brief was limited to matters addressed in respondent's brief, and we do not find a violation of Minn. R. Civ. App. P. 128.02.

Appellant included an attachment with his reply brief. The record on appeal includes papers filed in the trial court, exhibits, and transcripts of trial court proceedings. Minn. R. Civ. App. P. 110.01. Although appellant argues that the trial court accepted "Attachment 1" in a post-trial conference, it does not appear in the record of the trial court as transmitted to this court. Therefore, we strike this document from the appellate record. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (reviewing court may not consider matters outside record).

Affirmed; motions granted in part.

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