This opinion will be unpublished and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:

David Anthony Blais, petitioner,



Alice Faye Blais,


Filed March 31, 1998

Affirmed in part, reversed in part, and remanded; motion denied

Willis, Judge

Rice County District Court

File No. F396653

Steven C. Youngquist, 307 East Center Street, Rochester, MN 55904 (for appellant)

Thomas J. Kraus, John H. McLoone, IV, McLoone & Kraus, 111 North State Street, P.O. Box 508, Waseca, MN 56093 (for respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.



Appellant husband challenges the district court's calculation of his income for support and maintenance purposes, the award of maintenance, and various property valuations. We affirm in part, reverse in part, and remand.


The 14-year marriage of David Blais and his wife, now known as Alice Rewitzer, was dissolved in June 1997. The two agreed that Rewitzer would receive custody of the couple's three children. This appeal concerns financial issues.

Blais is a self-employed carpenter. Rewitzer, who does not have a high-school diploma, worked 30 hours per week at a state hospital until 1995, when she was discharged and received a settlement reflected in a "memorandum of understanding." Rewitzer was unemployed during the period of the parties' separation and applied for temporary maintenance and child support, which the court granted. When Blais failed to pay, Rewitzer applied for Aid to Families with Dependent Children (AFDC); she also sold her van, refinanced her mobile home, and obtained loans from relatives. In February 1997, Rewitzer began working 30 hours per week at the county day activity center for $6 per hour; she testified that her hours are reduced by 25% in the summer months. The court, in its order for temporary relief, ordered Blais to maintain health insurance for Rewitzer and the children.

Rewitzer testified at the April 14, 1997, final hearing that a doctor told her that she had no health insurance coverage in effect, but Blais, who appeared pro se, testified that he had maintained the children's coverage and Rewitzer said she had no reason to think otherwise. The court nevertheless found that Blais failed to maintain insurance for either Rewitzer or the children. The court also made the following findings and awards that Blais contests on appeal:

Blais's income. The court "accept[ed]" Rewitzer's estimate that Blais earned $4,000 per month and ordered him to pay support in the guidelines amount for that income level.

Rewitzer's need for maintenance. The court found that Rewitzer had reasonable monthly expenses of $2,400, which is $128.66 more than the amount she listed in her application for temporary relief, and awarded $250 per month in maintenance for four years.

Valuation of homes. The court found that the marital mobile home was worth $40,000, with $21,000 in encumbrances, and awarded it to Rewitzer. The court awarded to Blais a home he purchased on a contract for deed when the parties separated.

Pensions. Blais, in his opening statement, said that he had no pension but that Rewitzer had a pension valued at $20,863.[1] But the court found that Blais had a pension of that value, which Rewitzer in her brief admits was error. The court further found that Rewitzer had cashed her pension to pay household expenses, receiving $10,312.76 and paying out $7,395.18; it divided both the purported value of Blais's pension and the remaining cash from Rewitzer's pension equally between the parties.

Cash. Rewitzer testified that Blais had kept $5,250 in his safe that he claimed to be saving for his retirement and that after Blais left the marital home, she found the safe empty. Blais claimed he took $800 from the safe. The court found that the safe contained $5,000 and divided that amount equally between the parties.

Settlement proceeds. Rewitzer testified that she had given $4,500 of her settlement money to Blais, and she did not know what he did with it. The court divided the $4,500 equally between the parties.

Savings account. The parties agreed that they had opened a joint savings account with a $1,500 balance. Blais denied Rewitzer access to the account but claimed he had spent the money on the children's preschool expenses. The court concluded that the savings account had a value of $1,800 and divided that amount equally between the parties.

The court also ordered Blais to pay Rewitzer $2,000 toward her attorney fees. Blais hired an attorney and moved for amended findings, which the court denied on the ground that he was attempting to relitigate trial issues. Blais now appeals; we affirm in part, reverse in part, and remand.


Motion to Strike

On appeal, Blais has moved to strike the parties' applications for temporary relief from Rewitzer's appendix, and references thereto from her brief, on the ground that they were not offered into evidence at trial. Under Minn. R. Civ. App. P. 110.01, the record on appeal includes "[t]he papers filed in the trial court." The parties' applications for temporary relief and supporting affidavits are part of the district court file and thus are properly within the scope of this court's consideration. Blais's motion is denied.

Factual Disputes

Blais's income

Blais does not appeal from the district court's decision to award child support according to the statutory guidelines, but he challenges the court's calculation of his income. A district court's determination of net income for child 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). This court has allowed district courts particularly broad discretion in dealing with self-employed individuals because "the opportunity for a self-employed person to support himself yet report a negligible net income is too well known to require exposition." Ferguson v. Ferguson, 357 N.W.2d 104, 108 (Minn. App. 1984).

Blais argues that the district court could not calculate support based on imputed income unless it found that he was voluntarily underemployed. But as an "alternative ground," a court may base a support award on earning capacity, when "it is impracticable to determine [an] obligor's actual income." Veit v. Veit, 413 N.W.2d 601, 605-06 (Minn. App. 1987). This court has repeatedly refused to find an abuse of discretion where a district court establishes the income of a self-employed individual through use of tax returns from previous years. See, e.g., Roatch v. Puera, 534 N.W.2d 560, 565 (Minn. App. 1995); Quick v. Quick, 381 N.W.2d 5, 8-9 (Minn. App. 1986).

Here, the district court based its determination of income primarily on Blais's gross profit as declared on his tax returns for 1992 through 1995, which showed a steady annual increase to a 1995 figure of over $41,000.[2] The court also cited documentary evidence showing that Blais had been paid over $37,000 by a single client for five months' work in 1996, which supports the district court's apparent inference that Blais's gross receipts continued to increase from previous years. Cf. Sefkow v. Sefkow, 372 N.W.2d 37, 48 (Minn. App. 1985) (concluding that court erred in averaging income from previous years where tax returns showed steady increase in income), vacated and remanded on other grounds, 374 N.W.2d 733 (Minn. 1985). We conclude that district court had a sufficient factual basis for estimating Blais's gross profit at $4,000 per month.

Blais contends that the district court should have determined his net income based on his 1995 taxable income of $11,853 rather than on his gross profit (gross receipts less cost of goods sold). Blais claimed significant depreciation deductions in 1995, and in prehearing filings he listed annual take-home pay of approximately $20,000 and monthly expenses of $1,621. We have previously required courts calculating income for child support purposes to consider a self-employed obligor's deductions for legitimate business expenses and for depreciation that is "necessary for business capital purposes," but we have placed on the business owner the burden of establishing the necessity for the claimed expenses. Preussner v. Timmer, 414 N.W.2d 577, 579-80 (Minn. App. 1987). The legislature recently codified these principles, providing that for child support purposes:

Income from self employment is equal to gross receipts minus ordinary and necessary expenses. Ordinary and necessary expenses do not include amounts allowed by the Internal Revenue Service for accelerated depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining income for purposes of child support. The person seeking to deduct an expense, including depreciation, has the burden of proving, if challenged, that the expense is ordinary and necessary. Net income under this section may be different from taxable income.

Minn. Stat. § 518.551, subd. 5b(e) (Supp. 1997).

At the hearing, neither Rewitzer's counsel nor the court raised any issue regarding the expenses or depreciation claimed on Blais's tax return, and the district court offered no explanation for its apparent decision to disregard all the claimed expenses. Cf. Preussner, 414 N.W.2d at 579 (determining that district court erred in concluding that it need not consider depreciation deductions in calculating net income). Although we recognize that "taxable income is not always a reliable indication of net income," id. (quoting Otte v. Otte, 368 N.W.2d 293, 297 (Minn. App. 1985)), and that Blais claimed monthly expenses in excess of his taxable income, we conclude that more explanation is required for a decision to disregard completely all claimed business expenses and deductions when neither opposing counsel nor the court questioned them at the hearing. We therefore remand to allow Blais an opportunity to establish whether his claimed business expenses are ordinary and necessary and whether his claimed depreciation deductions are "necessary for business capital purposes."[3] Id. at 579-80.

Award of maintenance

On appeal from a maintenance award, this court asks only whether the district court abused its broad discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). Even where this court would have ruled otherwise in the district court's position, it will affirm a decision to grant maintenance if there is an acceptable basis in fact and principle. Rohling v. Rohling, 379 N.W.2d 519, 524 (Minn. 1986). While Minn. Stat. § 518.552, subd. 2 (1996), lists factors to be considered in awarding maintenance, the issue essentially amounts to balancing the recipient's need against the obligor's financial condition. Erlandson, 318 N.W.2d at 39-40. Because we have concluded that the court improperly determined Blais's income, the issue of Blais's ability to pay maintenance must be addressed on remand.

With regard to Rewitzer's needs, the district court found that

[Rewitzer] lacks sufficient property, including marital property proportioned to her, to provide for her reasonable needs and the needs of the minor children of the parties, considering her standard of living established during the marriage.

Contrary to Blais's argument, this finding, if accurate in view of the evidence, is sufficient to support an award of maintenance under Minn. Stat. § 518.552, subd. 1(a) (1996). Blais contends that the finding is not supported by the record.

In her application for temporary relief, Rewitzer listed monthly expenses of $2,271.34. Blais elicited hearing testimony that this figure had been reduced by approximately $700 because (1) Rewitzer's house payments had been reduced by refinancing, (2) Rewitzer no longer owed monthly car payments because she had sold her van after Blais failed to pay temporary support, and (3) Rewitzer stopped paying for health insurance in reliance on the court's order that Blais provide it. But Rewitzer testified that she needed a new car because her remaining vehicle was not safe for the children and that the house needed substantial repairs; she also pointed out in an affidavit responding to Blais's motion for amended findings that she had not listed expenses for any form of entertainment or recreation. The dissolution decree also gives Rewitzer the responsibility of paying her own health insurance, half of all non-reimbursed medical expenses for the children, and $4,428.50 in outstanding marital debts.

Combining her employment income with the court's original child support award, Rewitzer would have a total monthly income of $1,666.20 for nine months of the year and somewhat less in the summer. Her listed expenses, less those to whose elimination she testified, total $1,571.34; and, as noted, she has identified substantial additional expenses, although they have not been reduced to a monthly dollar amount. Moreover, Blais does not dispute that Rewitzer sold her van, and hence eliminated her monthly $309 car payment, solely due to his failure to comply with the court's temporary child support order. A court determines need for maintenance based on "the standard of living established during the marriage," Minn. Stat. § 518.552, subd. 1(a), not the standard to which the requesting spouse may have been reduced by the obligor's contempt of court.[4] We therefore affirm the district court's finding that Rewitzer lacks sufficient income to meet her reasonable monthly expenses in view of the standard of living established during the marriage.

Blais argues that the court should have scrutinized more closely Rewitzer's decision not to work a full 40-hour week outside the home. But the court was aware that Rewitzer was caring for three children between the ages of six and ten and had worked outside the home only three-quarters time during the marriage. Under the maintenance statute, it is proper to consider whether the requesting spouse is "the custodian of young children whose circumstances make it appropriate that she not be required at this time to seek full-time employment outside the home." Justis v. Justis, 384 N.W.2d 885, 891 (Minn. App. 1986), review denied (Minn. May 29, 1986). Moreover, even a homemaker without children is not, as a matter of law, underemployed in bad faith for maintenance purposes where she

has continued to work the same part-time hours at the time of dissolution as she did during the marriage, has been employed in the same type of position as she was during the marriage, and where there is no evidence of any intent to reduce income for the purposes of obtaining maintenance.

Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997). Rewitzer is working the same number of hours she did during the marriage at what appears to be similar employment, and Blais has provided no evidence to support a finding of bad faith.

Although we affirm the basic finding that Rewitzer has established a need for maintenance, we are uncertain how the district court arrived at the amount of $2,400 in reasonable monthly expenses for Rewitzer. On remand, in addition to determining Blais's ability to pay, the district court should make findings on the amount of the monthly expenses that are not listed in Rewitzer's application for temporary relief, including car payments and reasonable entertainment and recreation, to determine more accurately the appropriate amount of any maintenance award.

C. Valuation of assets

A district court has broad discretion in the valuation and division of property and this court will affirm a division that is supported by an acceptable basis in fact and principle, even if we might have arrived at a different result. Balogh v. Balogh, 356 N.W.2d 307, 312 (Minn. App. 1984). But a district court's discretion is not unlimited and generally must be supported by clear documentary or testimonial evidence. Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983). Valuations are sustained if they fall within the limits of credible estimates by competent witnesses. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975).

Value of the marital home

Parties to a dissolution who own real estate are presumptively competent to testify to its value. Bury v. Bury, 416 N.W.2d 133, 136 (Minn. App. 1987). Blais testified that the marital home was valued at $49,000, with just under $18,000 in encumbrances. Rewitzer testified that the home was valued at $28,000. In prehearing filings, both parties listed encumbrances of approximately $19,000. The court determined that the home was worth $40,000 with encumbrances of $21,000, which is a reasonable value in view of the parties' estimates.

Even if the court's valuation were erroneous, Blais has not demonstrated that it would make a difference to the outcome. See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993) (stating that appellant bears burden of demonstrating that error is prejudicial), review denied (Minn. June 28, 1993). The court awarded each party the home in which he or she then resided, with all associated encumbrances. While Blais's home is significantly more encumbered, a property division need not be mathematically equal if it is just and equitable. See Ruzic v. Ruzic, 281 N.W.2d 502, 505 (Minn. 1979). We conclude that the district court's allocation of the ownership of the parties' homes was equitable under the circumstances.

Liquid assets

The court was faced with conflicting testimony regarding the amount of money Blais took from the safe. The court chose to believe Rewitzer and disbelieve Blais. This court generally defers to a district court's determinations of witness credibility and will overturn its factual findings only when "left with the definite and firm conviction that a mistake has been made." Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987). We have no reason to question the district court's credibility determination.

Blais admitted to receiving money from Rewitzer's settlement with her former employer and to having sole control of the parties' joint savings account. He submitted no documentary evidence in support of his claim that he spent the settlement money on Rewitzer's bills and the savings on preschool expenses. A court is not required to believe even uncontradicted testimony if there are reasonable grounds to doubt its credibility. Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987). In the case of the settlement proceeds, Rewitzer testified that the debts Blais claimed to have paid with the money were discharged in bankruptcy. We conclude that the court's division of Blais's share of the settlement was not an abuse of discretion.

The savings account presents a closer question because the record does not indicate when the account was opened. The parties' testimony indicates that the account originally contained $1,500, and the court provides no explanation for its imputation of an additional $300.[5] Although a district court's valuations of assets are reviewed only for abuse of discretion, a court may not simply speculate as to value. Fastner v. Fastner, 427 N.W.2d 691, 696-97 (Minn. App. 1988). We therefore remand for a finding on the value of the savings account, including an explanation for any imputed amounts.

Effect of Conceded Errors

Under Minn. R. Civ. P. 61,

no error or defect in any ruling * * * by the court * * * is ground for granting a new trial or for * * * vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

The harmless error rule is to be liberally applied, and an appellant bears the burden of demonstrating that error is prejudicial. Bloom, 499 N.W.2d at 845.

Blais has pointed out two clear errors in the district court's findings. The first is the finding that Blais allowed the health insurance coverage on his children to lapse. Blais testified that he maintained the coverage and Rewitzer stated that she had no evidence that he did not; the record does not appear to provide grounds to doubt Blais's credibility as to this issue. But Blais has presented no evidence showing that a contrary finding would change the result in any way. The court (1) awarded child support according to the guidelines and maintenance based on Rewitzer's needs; (2) granted each party the home in which he or she then resided; (3) awarded Blais a new truck, while Rewitzer received two much older cars; and (4) divided the rest of the property equally, except for a one-time cash payment to Rewitzer of $5,000, which Blais does not contest. This division does not appear so one-sided as to imply that the court intended to punish Blais for alleged failure to maintain health insurance for his children. Where the findings necessary to a conclusion are adequately supported, a court's inclusion of other unsupported findings is harmless error. Hanka v. Pogatchnik, 276 N.W.2d 633, 636 (Minn. 1979).

But Blais is obviously prejudiced by having to pay Rewitzer $8,972.71, representing half the value of a pension that Rewitzer admits does not exist, less a credit for half the cash remaining from her pension. Rewitzer suggests that this court simply delete the paragraph relating to pensions from the judgment and decree, arguing that the record also does not reflect the existence of her pension. But Rewitzer admitted to having a pension in her prehearing statement, and omitting her pension proceeds would serve little purpose because precedent allows a spouse to bring an action, subsequent to a dissolution decree, for division of marital property omitted from the original decree. See Brink v. Brink, 396 N.W.2d 95, 97 (Minn. App. 1986) (rejecting claim that spouse had abandoned the property).

Divisions of property in dissolution often involve balancing of equities and intertwined issues. See Brugger v. Brugger, 303 Minn. 488, 494-95, 229 N.W.2d 131, 135-36 (1975) (declining to apply new legislation retroactively to avoid upsetting balance of equities). Because the district court may have premised its division of Rewitzer's pension proceeds on the mistaken assumption that Blais had a larger pension,[6] and because a remand is required to address the calculation of Blais's income, we direct the court to address the allocation of Rewitzer's pension proceeds on remand.

Attorney Fees

An award of attorney fees will not be disturbed absent a clear abuse of discretion. Orman v. Orman, 364 N.W.2d 836, 838 (Minn. App. 1985), review denied (Minn. May 31, 1985). Courts are normally "reluctant" to grant an award of attorney fees against a pro se litigant, but this court has upheld such an award. Liedtke v. Fillenworth, 372 N.W.2d 50, 52 (Minn. App. 1985), review denied (Minn. Sept. 13, 1985).

To support an award of attorney fees to a party in a dissolution action, a court must find that (1) the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not unnecessarily prolong the proceeding; (2) the party from whom fees are sought has the means to pay them; and (3) the party to whom fees are awarded does not have the means to pay them. Minn. Stat. § 518.14, subd. 1 (1996). Here, the district court found that Rewitzer lacked the ability to pay but did not explicitly make the other necessary findings. Because the amount of Blais's income remains in dispute, we remand the attorney fee issue for those findings.

In summary, we reverse the judgment of the district court and remand for findings with respect to (1) Blais's net income after reasonable business expenses, (2) Blais's ability to pay maintenance, (3) the amount of Rewitzer's monthly expenses for purposes of determining a maintenance award if Blais is found able to pay, (4) the value of the parties' joint savings account, (5) the allocation of Rewitzer's pension proceeds, and (6) the required statutory findings with respect to attorney fees. We affirm on all other issues.

Affirmed in part, reversed in part, and remanded; motion denied.

[ ]1 Blais attempted to offer into evidence an actuarial valuation of Rewitzer's pension, but it was excluded as hearsay.

[ ]2 Blais stated at the hearing that he had obtained an extension on his 1996 return and that it had not yet been prepared.

[ ]3 Because section 518.551, subdivision 5b(e), was not in effect at the time of the dissolution, we do not hold Rewitzer to have waived her right to challenge Blais's claimed expenses.

[ ] 4 We therefore find this case distinguishable from Rask v. Rask, 445 N.W.2d 849, 854 (Minn. App. 1989), in which we held that an estimate of living expenses was unsupported by the record where it included an estimate of mortgage expenses for the "type of home" the requesting spouse sought to buy. Here, Rewitzer's car payment expenses were established before Blais's delinquency, and because Blais does not dispute that Rewitzer was forced to sell her car solely because of his failure to pay support, we find that Blais would be estopped from claiming that her car payments have become too speculative to quantify.

[ ]5 Rewitzer argues in her brief that the court reasonably could have imputed $300 in interest because the account was begun for preschool purposes and all the children are now of school age. But the youngest child was only six years old at the time of trial, so the account could have opened as recently as two years before the dissolution.

[ ]6 It is unclear how the district court arrived at its conclusion that Rewitzer had cashed her pension, let alone its exact value, before she filed her affidavit stating these facts, with receipts attached, in response to Blais's motion for amended findings. But this court has held it harmless error to rely on information in an affidavit submitted after a hearing in a maintenance proceeding where the record as a whole supports the court's conclusion. Meyer v. Meyer, 441 N.W.2d 544, 547 (Minn. App. 1989), review denied (Minn. Aug. 15, 1989).