This opinion will be unpublished and
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:
Beverly Alto, petitioner,
Filed November 21, 2000
St. Louis County District Court
File No. FX99101357
Mary I. Johnson, Johnson Law Firm, P.A., P.O. Box 1172, Virginia, MN 55792 (for appellant)
Louis J. Cianni, Cianni Law Offices, P.O. Box 586, Chisholm, MN 55719 (for respondent)
Considered and decided by Crippen, Presiding Judge, Kalitowski, Judge, and Foley, Judge.*
U N P U B L I S H E D O P I N I O N
In this marital dissolution action, appellant Beverly Alto contends the district court erred in (1) calculating respondent’s ability to pay spousal maintenance; (2) declining to award her attorney fees; and (3) declining to either order respondent to pay her one half of the value of the marital homestead within 60 days of the decree, or award her a lien against the home. We affirm.
D E C I S I O N
We review a district court’s maintenance award under an abuse of discretion standard. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997); Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). For this court to conclude the district court abused its broad discretion with respect to an award of spousal maintenance, the court’s findings of fact must be “against logic and the facts on [the] record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted). “Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous.” Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992) (citation omitted).
In determining the amount of a maintenance award, the district court considers the factors set forth in Minn. Stat. § 518.552, subd. 2 (1998). Essentially, a maintenance determination is a balancing of the incomes and needs of the two spouses. Schreifels v. Schreifels, 450 N.W.2d 372, 373 (Minn. App. 1990). The central determination in that balancing process is the available resources of each spouse. Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).
Appellant first contends the district court erred by basing its maintenance award on findings concerning respondent’s housing expenses and loan obligation that are not supported by the record. We disagree. If there is evidence in the record concerning when or whether respondent will begin incurring expenses, the court may include it, even though not yet incurred. Rask v. Rask, 445 N.W.2d 849, 854 (Minn. App. 1989). Here, there is evidence in the record of respondent’s $300 monthly loan payment and prospective housing expenses. While we would prefer more detailed findings by the district court, the evidence in the record supports the district court’s findings of fact.
Respondent’s income roughly equals the district court’s estimation of $3,000 per month if overtime pay is excluded. Moreover, respondent testified at trial that opportunities for overtime at his job had become increasingly unavailable and that overtime earnings were not as predictable as they had been when he was married to appellant. Thus, the district court’s determination of respondent’s monthly income is supported by the evidence in the record that respondent’s income from overtime would be reduced in the future. Since the district court is in the best position to judge the credibility of witnesses, Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997), we conclude that its finding of respondent’s monthly income was not clearly erroneous and that in light of the parties’ relative resources and needs, an award of $200 monthly spousal maintenance was not an abuse of discretion.
Appellant contends the district court abused its discretion by refusing to award her attorney fees. We disagree. An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (1998), “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.” Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999) (quotation omitted); see also Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). A district court may award attorney fees when it finds that an award is necessary for a party to assert his or her rights in an action, that the payor has the financial means to pay the fees, and that the payee lacks the means to pay the fees. Minn. Stat. § 518.14, subd. 1. Here, appellant did not establish that she was financially unable to assert her legal rights. On this record, we conclude the district court did not abuse its discretion in refusing to award appellant attorney fees.
Appellant contends the district court abused its discretion by refusing to order respondent to pay her one half the value of the marital homestead within 60 days of the divorce decree and by not awarding her a lien against the homestead to secure her interest. We disagree. The district court has broad discretion with respect to the division of property. Rutten, 347 N.W.2d at 50. For this court to conclude the court abused its discretion, its factual findings must be “against logic and the facts on [the] record.” Id. (citation omitted).
This court on review must affirm the trial court’s division of property if it had an acceptable basis in fact and principle even though this court may have taken a different approach.
Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984) (citations omitted). Here, the district court ordered respondent to sell the marital home within 90 days of the February 14, 2000, amended order and pay half the sale proceeds to appellant. Because this order has an acceptable basis in principle, we conclude the district court did not abuse its discretion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.