This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Marriage of:

Donovan Edward Warner, petitioner,



Karen Marie Warner,


Filed July 1, 1997


Schumacher, Judge

Lake County District Court

File No. F895218

Jeffery A. Dobberpuhl, Johnson & Morris Law Offices, 103 Norwest Bank Building, Silver Bay, MN 55614 (for Appellant)

Larry M. Nord, Orman & Nord Law Office, 1301 Miller Trunk Highway, Suite 400, Duluth, MN 55811 (for Respondent)

Considered and decided by Davies, Presiding Judge, Schumacher, Judge, and Holtan, Judge.[*]



Appellant Donovan Edward Warner (husband) challenges the trial court's valuation and division of the parties' property and the award to respondent Karen Marie Warner (wife) of a lien to secure an equity-balancing payment. We affirm.


The judgment dissolving the parties' marriage awards neither party maintenance. It also values and divides property and awards wife a $47,000 equity-balancing payment secured by a lien on certain of husband's assets. Husband challenges the valuation and division of certain property and wife's lien.


1. Asset valuations are findings of fact, are not altered on appeal unless clearly erroneous, and are affirmed if within the limits of credible estimates made by competent witnesses. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). Also, asset valuations should be supported by clear documentary or testimonial evidence or by comprehensive findings. Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983). The trial court's $85,000 valuation of the homestead is consistent with the written appraisal submitted to the court and with wife's testimony that she agreed with the appraisal. See Bury v. Bury, 416 N.W.2d 133, 136 (Minn. App. 1987) (parties to a dissolution are presumptively competent to testify to property value). While the appraisal states that certain items "could" impact the property's value, the trial court noted there was no evidence those items required immediate attention. Also, husband admits the appraisal was "unchallenged." The record includes both documentary and testimonial evidence supporting the trial court's valuation, and we cannot say the trial court abused its broad discretion in valuing the homestead.

Husband claims that the trial court erred when it valued the cattle by including two unborn calves. The trial court's findings of fact state:

[T]here are 13 calves, 17 cows and one bull on hand. The calves have a reasonable value of $100.00 each or $1300.00. The cows have a reasonable value of $400.00 each or $6800.00. The bull has a reasonable value of $520.00. The value of the cattle is $8420.00 * * * .

(Emphasis added.) Because the total value of the calves, cows, and bull is $8,620, rather than $8,420, the trial court apparently did not include the value of the two unborn calves in its valuation of the cattle. Further, because the trial court's actual property division in its conclusions of law credits husband with $8,400 for the cattle, it appears that the value of the herd used by the trial court when dividing the parties' property understates the amount the trial court found the herd to be worth. Under these circumstances, any error in the valuation of the herd did not prejudice husband. See Kornberg v. Kornberg, 542 N.W.2d 379, 389 (Minn. 1996) (refusing to reverse where error caused no prejudice).[1]

Husband also challenges the trial court's property division because while it credits him with the proceeds of certain cattle he sold, it does not include an offset for the cost of raising the cattle. If the costs of raising the cattle were paid as those costs were incurred, the marital estate lacks the property the parties' would have acquired but for paying the costs of raising the cattle. Alternatively, if the costs of raising the cattle were not paid as they were incurred, the marital estate includes assets acquired with the funds that could have otherwise been spent on the cattle, but the estate also includes the debt generated when the cattle-related costs were not paid as they were incurred. In either case, the cost of raising the cattle is reflected in the net marital estate and an offset was not necessary.

2. The trial court found that certain of husband's nonmarital property generates income. Husband claims those funds were paid to his sister and that the trial court erred in crediting wife with a portion of those funds. Income generated by a nonmarital asset during a marriage is marital. Husband's claim to the contrary does not distinguish between nonmarital assets themselves and the income from such assets. See Swick v. Swick, 467 N.W.2d 328, 331 (Minn. App. 1991) (distinguishing income from a nonmarital asset from the asset's appreciation and noting that income from a nonmarital asset received during a marriage is marital), review denied (Minn. May 16, 1991). Further, we reject husband's claim that because he had only a one-third interest in the property, the trial court erred in crediting wife with more than one-third of the funds mentioned in the judgment. The trial court found that the property "produced income to this family" and therefore $10,000 ought to be "considered a marital asset[.]" (Emphasis added.)

3. To secure husband's duty to make the equity-balancing payment, the trial court awarded wife liens against the homestead and against husband's nonmarital property. Husband claims the trial court's award of a lien on the homestead is "contrary to the trial court's analysis regarding valuation of the homestead." While putting a lien on the homestead will reduce its value, because the judgment awards husband $94,000 more in property than it awards wife, putting a lien on the homestead to secure wife's equity-balancing payment was within the district court's discretion. See Driscoll v. Driscoll, 414 N.W.2d 441, 447 (Minn. App. 1987) (trial court did not abuse its discretion by awarding a lien to secure obligor's duty to pay debts). To the extent husband claims that the trial court erred by awarding wife a lien on his nonmarital property, we reject that argument. While "passive appreciation" of a nonmarital asset (appreciation due to "inflation," "market forces," or "conditions") is nonmarital in nature, "active appreciation" of a nonmarital asset (appreciation due to the efforts of one or both spouses) is marital in nature. Swick, 467 N.W.2d at 331.

Here, the district court noted husband's general lack of candor in refusing to produce evidence of his finances and specifically noted that, regarding his nonmarital property, he refused to produce evidence on (a) its value when he acquired it; (b) its value at the time of trial; (c) the amount of income it generated during the marriage; and (d) the specific disposition of the income it generated. Further, the trial court explicitly ruled that wife is entitled to a lien against the property despite its nonmarital nature. Under these circumstances, and given the limited record generated by husband's failure to be forthcoming with financial information, the record currently before this court does not allow us to conclude that the district court abused its wide discretion by awarding wife the liens. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to trial court credibility determinations).

4. Husband claims the trial court should have awarded him an interest in a certificate of deposit wife cashed to pay attorney fees and in wife's deferred compensation plan. Trial courts have broad discretion in dividing property and will be affirmed if a division has a basis in fact and principle even though this court might have divided the property differently. Bollenbach v. Bollenbach, 285 Minn. 418, 426-27, 175 N.W.2d 148, 154 (1970). Wife testified that the funds in her deferred compensation plan were deposited after this proceeding was started. Also, the certificate of deposit in question names only wife and her mother as its payees. Further, while we are aware that the trial court indicated that the property division "ought to be an equal division," given the size of the parties' marital estate and the division of the parties' other assets, we cannot say that a failure to award husband an interest in the certificate of deposit or wife's deferred compensation plan renders the property division, as a whole, deficient. See Ruzic v. Ruzic, 281 N.W.2d 502, 505 (Minn. 1979) (a property distribution need not be equal, only equitable); Minn. R. Civ. P. 60.01 (harmless error to be ignored).


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

[ ]1 We decline to remand for the trial court to address the $20 discrepancy between the $8,420 valuation of the herd in the court's findings of fact and the $8,400 figure used by the court to divide the assets in its conclusions of law. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (declining to remand for de minimis technical error).