This opinion will be unpublished and
may not cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1996).



In Re the Marriage of:
Rebecca Sue Ballard, petitioner,


Paul Lyman Ballard,

Filed February 10, 1998

Affirmed in part as modified,
reversed in part, and remanded
for recalculation of the pension division
Toussaint, Chief Judge

Douglas County District Court

File No. F6-96-571

Robert F. Henson, Henson & Efron, P.A., 1200 Title Insurance Building, 400 Second Avenue South, Minneapolis, MN 55401 (for appellant)

Michael J. Dolan, Thornton, Hegg, Reif, Johnston & Dolan, P.A., 1017 Broadway, P.O. Box 819, Alexandria, MN 56308 (for respondent)

Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge.



Appellant Rebecca Sue Ballard challenges the district court's findings of fact, conclusions of law, and order, arguing that it was an abuse of discretion for the district court to (1) adopt respondent Paul Lyman Ballard's proposed findings; (2) deny wife spousal maintenance; (3) reimburse husband for service of marital debts during the parties' separation; (4) miscalculate husband's pension distribution; and (5) deny her attorney fees. We affirm in part with the modification that wife is entitled to a $2,000 reimbursement from husband for his portion of the income taxes that wife paid, and we remand for recalculation of the qualified domestic relations order.



Husband's Proposed Findings

A district court's findings of fact, conclusions of law, order for judgment, and judgment will not be disturbed unless clearly erroneous. Minn. R. Civ. P. 52.01. This court has expressed concern regarding the wholesale adoption of proposed findings. Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). This court, however, also stated that "[w]e have held previously that the verbatim adoption of a party's proposed findings and conclusions of law is not reversible error per se." Id.

Here, husband is a judge in the Seventh Judicial District. Wife did not object to the Minnesota Supreme Court's appointment of a judge who normally presides in the Ninth Judicial District to hear this case because he had no connection to or relationship with husband. Upon receipt of judgment, wife alleged bias or prejudice by the Ninth Judicial District judge. Under the circumstances, the district court's findings determining (1) the balloon date for the contract for deed on the sale of the 504 Broadway property; (2) the rental value and equity in their commercial property at 518 Broadway; (3) spousal maintenance; and (4) the division of marital property and debts, are supported by the record. The acceptance of husband's proposed findings does not demonstrate bias or abuse of the district court's discretion.


Spousal Maintenance

This court will not reverse a district court's maintenance award unless the district court abused its wide discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). This court will reverse for an abuse of discretion only where the district court has reached a conclusion that is clearly erroneous against logic and the facts on the record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). The district court must consider all relevant factors outlined in Minn. Stat. § 518.552, subd. 2, but need not make findings regarding each factor. See Justis v. Justis, 384 N.W.2d 885, 891 (Minn. App. 1986), review denied (Minn. May 29, 1986).

In deciding to deny maintenance, the district court listed and applied the following factors in arriving at its conclusion: (1) the age of the parties; (2) the division of real and personal property; (3) the lifestyle of the parties during the course of their marriage and the fact that it was artificially inflated as a result of incurring debt; (4) the relative earning capacity of the parties, in light of their relative ages; (5) the division of pension plan assets; (6) the physical health of the parties; and (7) all other factors outlined in Minn. Stat. § 518.552, subd. 2 (1996).

The district court properly applied the relevant factors of Minn. Stat.

§ 518.552, subd. 2. Based on the record, the district court used its sound discretion when deciding to deny spousal maintenance.


Division of Marital Property and Marital Debts

A decision regarding the division of marital property is within the sound discretion of the district court. On appeal, this court will uphold the district court's decision absent a clear abuse of discretion. See Justis, 384 N.W.2d at 888.

Notwithstanding a $4,000 tax payment made by wife, the district court properly divided the marital property and marital debts of the parties. The tax payment oversight is found in conclusion 14 of the district court's order. The district court found that wife converted $16,831 in marital assets, that were initially placed in her individual savings account. The district court ordered wife to pay husband one-half of this amount ($8,415). The record supports wife's assertion that she paid $4,000 of this money for income taxes. Wife therefore is entitled to a $2,000 reimbursement from husband.


Division of Pension

The decision regarding the division of a pension plan (or other marital property) is within the sound discretion of the district court. On appeal, this court will uphold the district court's decision absent a clear abuse of discretion. See Justis, 384 N.W.2d at 888.

Conclusion 10 of the district court's order stated that "[t]he Petitioner shall also be awarded 25.77% of Respondent's Minnesota State Judge's Retirement Plan." To arrive at this percentage, it appears that the district court's findings were the result of treating actuarial calculations as current fair market values. Under the formula set forth in the order, wife's share of husband's pension would have been 22.16% if he retired on the date of trial, and the amount would decline thereafter. As of December 31, 1995, husband had 25.5 years of service. Through October 31, 1996, the date of trial, husband had 26.33 years of service. However, 25.77% x (22.8467 / 26.33) = 22.16%. This 22.16% is the result on the date of trial after applying the formula in the order.

Under Minnesota Law, a judge cannot elect to take the actuarial value of his defined benefit pension plan. Thus, husband's pension has no fair market value. The only exception is if husband elects to cash out by withdrawing his contribution to the plan plus interest. This would not be a recommended option due to the financial ramifications for husband. While a portion of his pension can be set aside to a former spouse by a domestic relations order, the spouse's share does not begin to be paid until he retires. Thus, the actuarial value of husband's pension would be higher if he retires at age 65 than if he retires at age 70.

We reverse and remand for recalculation/correction of the division of the husband's pension. On remand, if the district court chooses to limit wife's participation to the years in which husband was both married to her and working as a judge, the correct numerator should be 26.33, not 22.8467.


Attorney Fees

Generally, an award of attorney fees lies within the discretion of the district court and will not be reversed absent an abuse of discretion. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). The court may award attorney fees in a marital dissolution proceeding provided the court finds:

that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

Minn. Stat. § 518.14, subd. 1 (1996).

Here, the district court specifically addressed the issue of attorney fees. The district court had all the financial information relating to the parties. The court divided assets between the parties and concluded that each party had approximately $350,000, not including the value of the parties' homestead or personal property. The district court did not abuse its discretion because each party has the ability to pay their own attorney fees.


Attorney Fees for Appeal

Wife requests that she be awarded attorney fees for this appeal. This court has discretion in awarding appellate attorney fees. Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994). Attorney fees on appeal may be awarded in dissolution cases where the conditions of Minn. Stat. § 518.14, subd. 1, are satisfied.

This appeal does not warrant an award of attorney fees to wife. Therefore, wife's motion for attorney fees on appeal is denied.

Affirmed in part as modified, reversed in part, and remanded for recalculation of the pension division.