This opinion will be unpublished and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:

Marsha Carol Danielson Borth, petitioner,

Respondent (C5-98-529),

Appellant (C1-98-530),


Verdell Fredrick Borth,

Appellant (C5-98-529,

Respondent (C1-98-530).

Filed December 22, 1998


Randall, Judge

Carver County District Court

File No. F2-96-001501

Denis E. Grande, Mackall, Crounse & Moore, PLC, 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN 55402 (for respondent-appellant)

Geraldine Carlen Steen, Beckman & Steen, Suite 206, 14550 Excelsior Boulevard, Minnetonka, MN 55345 (for appellant-respondent)

Considered and decided by Randall, Presiding Judge, Foley, Judge,[*] and Holtan, Judge.[**]



Appellant argues that the district court abused its discretion when it ordered her to pay spousal maintenance to respondent in the amount of $800 per month for seven years. Respondent argues the district court abused its discretion: (1) in its award of temporary child support; (2) when a prior judge refused to recuse himself because of an apparent conflict of interest; (3) in its division of the marital estate; (4) in its award of sole physical custody of the minor children to appellant; (5) by failing to provide him work-related child care expenses; and (6) by awarding appellant attorney fees. We affirm.


Appellant Marsha Carol Danielson Borth commenced this martial dissolution proceeding in Carver County District Court on September 19, 1996.[1] In a temporary order issued on November 14, the district court awarded appellant sole physical custody of the parties' three minor children and required respondent Verdell Fredrick Borth to pay child support. On January 21, 1997, the district court amended its order for temporary relief and awarded appellant attorney fees, ruling that respondent had failed to vacate the homestead within a reasonable period of time. On February 20, the district court awarded additional attorney fees to appellant after denying respondent's motion for reconsideration of the temporary child support award and his request that the judge recuse himself because of an alleged conflict of interest.

The dissolution proceeding was heard, a new judge presiding, in October and November 1997. The judgment and decree was entered on December 24, 1997, and was amended on March 3, 1998. The district court considered and decided the issues of property division, custody of the minor children, and child support. The district court ordered appellant to pay respondent $800 in temporary monthly spousal maintenance for the next seven years and ordered respondent to pay $768.56 per month in child support. Both parties appealed the original and amended judgment and decree and those matters were consolidated by order of this court dated April 6, 1998.



The district court has broad discretion in determining an award of spousal maintenance, including the amount and its duration, and its decision will not be reversed absent an abuse of that discretion. Zamora v. Zamora, 435 N.W.2d 609, 611 (Minn. App. 1989). An abuse of discretion will be found only where the district court reaches a clearly erroneous conclusion against logic and the facts on record. Id.

A spouse seeking maintenance must demonstrate that he or she lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs or is unable to provide adequate self-support through appropriate employment. Minn. Stat. § 518.552, subd. 1(a), (b) (1996). If the court determines that an award of maintenance is appropriate, it must then determine the amount and duration of such maintenance. See Minn. Stat. § 518.552, subd. 2 (1996) (providing maintenance order shall be in amounts and for periods of time, either temporary or permanent, as court deems just, without regard to marital misconduct). In determining the appropriate amount and duration of spousal maintenance, courts must consider all relevant factors, including those contained in Minn. Stat. § 518.552, subd. 2. No single statutory factor is dispositive. Fink v. Fink, 366 N.W.2d 340, 341 (Minn. App. 1985). When determining whether an award of spousal maintenance is appropriate,

the basic consideration is the financial need of the spouse receiving maintenance and the ability to meet that need balanced against the financial condition of the spouse providing the maintenance.

Krick v. Krick, 349 N.W.2d 350, 352 (Minn. App. 1984) (emphasis added).

From the record, it appears that despite respondent's extensive educational background and broad work experience, he is employable only in a legally related field. In addition, the record indicates that given his age and lack of expertise in any area of the law, respondent is confronted with significant hurdles in securing employment in the legal profession. The district court's finding that respondent is in financial need of temporary spousal maintenance is reasonably supported by the evidence in the record and the court did not abuse its discretion in awarding respondent spousal maintenance.


Respondent argues that the district court abused its discretion in its award of temporary child support, which was incorporated into the final judgment and decree, because it is above the statutory guidelines. The district court has broad discretion in determining a child support obligation and "a reviewing court will affirm such a determination if it has 'an acceptable and reasonable basis in fact.'" Desrosier v. Desrosier, 551 N.W.2d 507, 509 (Minn. App. 1996) (quoting Bliss v. Bliss, 493 N.W.2d 583, 586 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993)).

The temporary order for child support was not incorporated and merged into the final or amended judgment and decree. In the judgment and decree, the district court found respondent's net monthly income to be $2,195.88 before any child support and daycare reimbursement to appellant. Applying the statutory guidelines to this amount, the court ordered respondent to pay $768.56 per month in child support. Respondent does not dispute the district court's calculation of his net monthly income. The district court's calculation under the guidelines is correct. Respondent's current child support obligation was properly calculated.


Respondent argues that the district court lacked jurisdiction to award appellant attorney fees following a hearing on appellant's motion to find him in contempt for failing to vacate the homestead. In a marriage dissolution proceeding, the district court may award attorney fees "against a party who unreasonably contributes to the length or expense of the proceeding." Minn. Stat. § 518.14, subd. 1 (1996). A reviewing court will reverse a district court's award of attorney fees only where the district court clearly abused its discretion. Bogen v. Bogen, 261 N.W.2d 606, 611 (Minn. 1977).

A court may obtain jurisdiction over a party who is improperly served when that party "'has taken some affirmative step invoking the power of the court or implicitly recognizing its jurisdiction.'" Gorz v. Gorz, 552 N.W.2d 566, 570 (Minn. App. 1996) (quoting Peterson v. Eishen, 512 N.W.2d 338, 340 (Minn. 1994)). Thus, in Gorz, this court held that the district court in a dissolution proceeding had jurisdiction to issue a contempt order against defendant for failure to pay child support even though no order to show cause was issued and no personal service was effected on defendant. Id. at 570.

Here, although respondent was not personally served with the order to show cause, respondent's attorney was present at the hearing on his behalf. By having his attorney present to appear for him, respondent implicitly recognized and consented to the district court's jurisdiction. Similarly, respondent explicitly invoked the jurisdiction of the district court when he filed his application for temporary relief and supplied the court with various affidavits in support of his application and in response to appellant's application for temporary relief. We conclude that the district court had jurisdiction over respondent and did not abuse its discretion in awarding appellant attorney fees.


Respondent argues that the district court judge hearing his motion for reconsideration of the order for temporary relief abused his discretion when he refused to recuse himself.[2] Under Minn. R. Civ. P. 63.03, a judge who has presided on a motion or other proceeding may not be removed absent an affirmative showing of prejudice on the part of the judge. "A showing that the judge * * * might be excluded for bias from acting as a juror in the matter constitutes an affirmative showing of prejudice." Id. The decision whether to grant a motion to remove a judge after the judge has presided at a proceeding "is committed to the sound discretion of the trial court." Uselman v. Uselman, 464 N.W.2d 130, 139 (Minn. 1990).

A juror may serve on a jury even though the juror was acquainted with one or more of the participants. See State v. Reed, 291 Minn. 539, 540, 192 N.W.2d 183, 183 (1971) (holding no juror bias even though some jurors "had some acquaintance with prosecutive personnel"). Similarly, in State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983), the supreme court affirmed the district court's decision not to strike for cause two jurors who were employees of a company owned in large part by the victim's family and whose president was the victim's father. The court stated that "[j]urors standing in similar or other close relationships with parties have been allowed to sit when no showing of prejudice was made." Id. at 318.

Even though the parties had sued acquaintances of the judge and appellant worked at the same hospital as the judge's wife, respondent made no affirmative showing that the judge could not serve as a juror in this case. The trial judge did not err when he refused to recuse himself from the matter.


Respondent claims that the district court abused its discretion when dividing the marital estate. The district court's division of assets must be just and equitable and need not be mathematically equal. Nazar v. Nazar, 505 N.W.2d 628, 635 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993).


Respondent argues that the aircraft he purchased nearly six years before the parties' marriage is nonmarital because any increase in the aircraft's value is attributable to passive appreciation and market forces. Respondent testified that although disassembled, the plane had a fair market value of $10,000. In a dissolution, a spouse may receive nonmarital property plus any passive appreciation in its value. Swick v. Swick, 467 N.W.2d 328, 331 (Minn. App. 1991), review denied (Minn. May 16, 1991). However,

[i]f both spouses have contributed time, effort or money to the nonmarital asset, or have actively participated in its maintenance, improvement or management, then any appreciation may be marital property, divisible upon dissolution.


Although the aircraft was disassembled approximately two months after the parties were married, there is sufficient evidence in the record to conclude that appellant contributed resources to the improvements made to the aircraft before it was disassembled during the parties' marriage. Accordingly, the district court did not abuse its discretion when it determined a portion of the aircraft's value to be marital property.

Attorney Fees

Respondent argues that the district court abused its discretion when it failed to credit against appellant's property distribution approximately $4,200 used by appellant to pay for her attorney fees at the commencement of the dissolution proceedings. Respondent failed to present this issue to the district court and raises it now for the first time on appeal. This issue, therefore, is not properly before us on appeal. Ness v. Ylvisaker, 412 N.W.2d 769, 770 (Minn. App. 1987) ("Issues not presented to the trial court will not be heard for the first time on appeal.").

Retirement Funds

Respondent argues that the district court improperly divided his Dorsey & Whitney 401(k) retirement account. Pursuant to appellant's post-trial motion, the district court amended its original finding to include an additional $15,000 respondent had taken out against the fund as a loan. Respondent claims that the addition of this amount skews the property division "so it is no longer equitable." We disagree. The inclusion of the additional $15,000 simply reflects the true value of the account. The district court did not abuse its discretion in dividing respondent's 401(K) account.


Respondent argues that the district court abused its discretion when it awarded sole physical custody of the parties' minor children to appellant. The best interests of the children govern the grant of custody. Wopata v. Wopata, 498 N.W.2d 478, 481 (Minn. App. 1993). In determining the children's best interests, the district court must consider all the relevant statutory factors listed in Minn. Stat. § 518.17, subd. 1 (Supp. 1997). Id. In addition, when joint custody is sought, the court must consider the factors contained in Minn. Stat. § 518.17, subd. 2 (1996), relating to the ability of the parties to cooperate. Id. The district court has broad discretion in making custody determinations, and its decision will not be reversed absent an abuse of that discretion. Id.

Joint physical custody may not be in the children's best interest if it induces instability, turmoil, and a lack of continuity. See Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995). A grant of joint physical custody is appropriate only when circumstances dictate that it is in the children's best interest.

Respondent insists that the district court's award of sole physical custody should be reversed because the district court failed to make detailed findings on each of the statutory factors. While the district court must consider all the statutory factors pertaining to the children's best interests, it need not make specific findings on each and every factor. Nazar, 505 N.W.2d at 633.

"It is sufficient if the findings as a whole reflect that the trial court has taken the statutory factors into consideration, insofar as they are relevant, in reaching its decision."

Schultz v. Schultz, 358 N.W.2d 136, 138 (Minn. App. 1984) (quoting Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 172 (1976)).

Taking the district court's findings as a whole, we are satisfied that the court considered all the relevant statutory factors pertaining to the children's best interests and that its findings are reasonably supported by the evidence. The district court did not abuse its discretion in awarding appellant sole physical custody of the three minor children.


Finally, respondent claims the district court abused its discretion when it refused to provide him work-related childcare expenses. The district court refused to include any child care expenses in respondent's reasonable monthly expenses. The court also denied respondent's motion to amend this finding, ruling that given respondent's visitation schedule there is only one day per week that respondent "may be required to provide the children with childcare" and any childcare costs that he may incur will not greatly increase his expenses.

The district court's decision is supported by record evidence. During the proceedings, respondent testified that he has no childcare expenses as a result of the visitation schedule. He also stated that, unlike appellant's work schedule, his work schedule is flexible. This allows respondent to take the children to school before he leaves for work. Thus, respondent has no real or anticipated childcare costs associated with having the children during his right to visitation. We conclude that the district court did not abuse its discretion in refusing to award respondent work-related childcare expenses.


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

[**] 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 note that both parties are appealing from the district court's judgment and amended judgment. For purposes of this appeal, we will refer to Marshal Carol Danielson Borth as appellant and respondent as Verdell Fredrick Borth.

[2] Here, the parties do not address the propriety of respondent's motion to reconsider and, therefore, we decline to address the issue. We do note that motions to reconsider are now subject to Minn. R. Gen. Pract. 115.11.