This opinion will be unpublished and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:

Eugene Leverne McArthur, petitioner,



Katherine Ann McArthur,


Filed July 1, 1997

Affirmed in Part and Remanded in Part

Schumacher, Judge

Becker County District Court

File No. F895479

Randall G. Knutson, Zenas Baer & Associates, 331 Sixth Street, Post Office Box 249, Hawley, MN 56549 (for Appellant)

James W. Donehower, Thorwaldsen, Quam, Beeson, Malmstrom & Sorum, 1105 Highway 10E, Post Office Box 1599, Detroit Lakes, MN 56502-1599 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.



Appellant Eugene Leverne McArthur, Jr. (father) challenges the trial court's finding of the income of respondent Katherine Ann McArthur (mother), awards to mother of a tax dependency exemption and attorney fees, and the valuation and division of property. We affirm in part and remand in part.


The September 1996 judgment dissolving the parties' marriage was partially stipulated. It awarded the parties joint legal and physical custody of their two minor children, set mother's support obligation at the guideline level for what the trial court found to be mother's income, awarded each party a tax dependency exemption for one child, awarded mother attorney fees, and valued and divided the parties' property as of the trial date. Trial court denied father's posttrial motion, but partially granted mother's motion. Father appeals.


1. Father challenges the trial court's finding of mother's net monthly income, claiming that mother's overtime income should be included in her income for support purposes. A finding of net income for support purposes will be affirmed if it has a reasonable basis in fact. Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987). Here, the amended judgment does not (a) explain how the trial court arrived at the figure it found to be mother's net monthly income; (b) address the factors listed in Minn. Stat. § 518.551, subd. 5(b)(2) (1996), for determining whether a support obligor's income should include the obligor's pay for working more than 40 hours per week; or (c) reconcile the discrepancy between the amount of overtime mother testified she worked and the amount of overtime shown on her pay-stubs. Under these circumstances, we cannot evaluate the propriety of excluding mother's overtime pay from her income. See Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966) ("It is not within the province of [appellate courts] to determine issues of fact on appeal.").

2. Because we remand for the trial court to readdress mother's income, we also remand for the trial court to readdress mother's need for attorney fees and to make the findings necessary to support any award of need-based attorney fees. See Minn. Stat. § 518.14, subd. 1 (1996) (listing findings necessary to support an award of need-based attorney fees); Richards v. Richards, 472 N.W.2d 162, 167 (Minn. App. 1991) (where district court failed to make findings under Minn. Stat. § 518.14, fee issue remanded).

3. Alleging he is the custodial parent, father claims the trial court should have awarded him the tax exemptions for both minor children. Because the parties stipulated to joint physical custody, that the children's primary residence is with father does not necessarily make him the children's custodian. See Lutzi v. Lutzi, 485 N.W.2d 311, 314 (Minn. App. 1992) ("courts must accept the denomination of custody stipulated by the parties"); Minn. Stat. § 518.003, subd. 3(e) (1996) ("custodian" means "the person who has the physical custody of the child at any particular time"). Further, the trial court has the discretion to award the tax dependency exemption to either parent. Wopata v. Wopata, 498 N.W.2d 478, 486 (Minn. App. 1993). Finally, while father claims that an award of the tax dependency exemption to a noncustodial parent "should" be conditioned on receipt of child support, case law does not make the condition mandatory. See Biscoe v. Biscoe, 443 N.W.2d 221, 224 (Minn. App. 1989); Theroux v. Boehmler, 410 N.W.2d 354, 358 (Minn. App. 1987); Fudenberg v. Molstad, 390 N.W.2d 19, 21 (Minn. App. 1986) (all stating waiver "should" be conditioned on receipt of support, but not stating that it "must" be so conditioned). On this record, the trial court did not abuse its discretion by awarding a tax dependency exemption for one child to each of the joint physical custodians.

4. Father claims the trial court erred by valuing the parties' assets as of the date of trial and challenges every one of the trial court's findings relating to the valuation date.[1] Upon consideration of father's claims, the trial court's findings, the relevant authorities, and the record, we decline to alter the trial court's findings or its valuation date. See Minn. Stat. § 518.58, subd. 1 (1996) (trial court may value property as of a date other than the prehearing conference if it finds another date is equitable); see also Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (to challenge a finding of fact successfully, a party must show the finding is clearly erroneous and that the error caused prejudice).

5. Father testified that the tribe owns the land on which the parties' marital home was located. Mother admits that the parties' interest in the land will not become a full legal title until the parties complete their obligations under the Mutual Help Agreement pursuant to which the home was built. The trial court, however, awarded the land to father without explanation. We remand for the trial court to adjust or explain this award. See Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983) (trial court's discretion in awarding property is not unlimited and must be supported by clear evidence or comprehensive findings). Similarly, because the trial court's award to father of various guns is consistent with mother's submissions to the court, we remand for the trial court to reevaluate its award of the guns in light of mother's admission at trial that she lacked personal knowledge of the number and value of the guns at issue. See Minn. R. Evid. 602 (generally, witnesses may not testify except on personal knowledge); Black's Law Dictionary at 1476 (6th ed. 1990) (testimony includes "evidence as is delivered by a witness * * * either orally or in the form of affidavits or depositions"). Finally, in light of father's uncontradicted testimony that the computer was "burned out" a year before trial, we also remand for the trial court to revisit the propriety of awarding that asset to father at a value of $1500.

6. Father makes numerous other challenges to the trial court's valuation and division of property. After review of those claims and the record, we conclude that reversal of the trial court is not necessary. See Bollenbach v. Bollenbach, 285 Minn. 418, 427, 175 N.W.2d 148, 154 (1970) (trial court's property division will be affirmed if it "has an acceptable basis in fact and principle even though [the appellate court] might have made a different disposition of the problem"); Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975) (asset valuations are findings of fact and will be affirmed if they fall within limits of credible estimates made by competent "witnesses even if it does not coincide exactly with the estimate of any one of them"); Midway Ctr., 306 Minn. at 356, 237 N.W.2d at 78 (to challenge a finding of fact successfully, a party must show the finding is clearly erroneous and that the error caused prejudice); see also Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (the function of an appellate court "does not require us to discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court's findings[; our] duty is performed when we consider all the evidence, as we have done here, and determine that it reasonably supports the findings").

7. We express no opinion on how to resolve the remanded issues. On remand, the trial court shall have discretion regarding whether to reopen the record.

Affirmed in part and remanded in part.

[ ]1 Father also claims that, before trial, the trial court should announce the date as of which it will value the property. This is not required by the statute and could require the trial court to declare a valuation date before it has enough information to identify a workable valuation date.