C6-99-1621

In Re the Marriage of:

Bart DeWayne Morfitt, petitioner,

Appellant,

vs.

Joan June Morfitt,

Respondent.

Filed April 4, 2000

Affirmed in part and remanded; motion denied

Lansing, Judge

Dakota County District Court

File No. F79812187

William P. Kaszynski, 1132 East Magnolia Avenue, St. Paul, MN 55106 (for appellant)

John G. Westrick, Craig E. Shriver, Tammy L. Merkins, 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

This appeal from judgment in a marital dissolution action raises issues of custody, spousal maintenance, child support, medical-costs apportionment, and property division. The court’s determinations on custody and property division have the requisite factual and legal support, and we affirm. The court’s findings on support, maintenance, and medical costs are premised on a finding of Bart Morfitt’s income that both parties agree is incorrect. We therefore remand those issues for reevaluation based on a correct finding of income. We deny Joan Morfitt’s request for attorneys’ fees on appeal.

FACTS

Bart and Joan Morfitt dissolved their 17-year marriage in April 1999. At the time of dissolution, two of the Morfitts’ three children were still minors. The district court granted Joan Morfitt sole physical custody of both minor children and sole legal custody of one child. The court provided that the Morfitts would have joint legal custody of the other child. The court valued and divided the Morfitts’ marital property and apportioned the marital debts. Based on a finding of Bart Morfitt’s net monthly income, the judgment provided for child support and maintenance payable to Joan Morfitt and also allocated medical costs.

After the denial of the majority of his posttrial motions, Bart Morfitt appeals. He challenges the custody determination; the valuation and division of property; the finding on his income; and the amounts ordered for support, maintenance, and medical costs. Joan Morfitt admits that the judgment overstates Bart Morfitt’s net monthly income. She also seeks attorneys’ fees on appeal.

D E C I S I O N

Custody determinations are based on the children’s “best interests.” Minn. Stat. § 518.17, subd. 3(a)(3) (1998). Review of custody is limited to whether the district court “abused its discretion by making findings unsupported by the evidence or by improperly applying the law.” Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). De novo review of the entire record is inappropriate. Id. A district court’s findings of fact that form the basis for the custody determination are not set aside on appeal unless the findings are clearly erroneous. Minn. R. Civ. P. 52.01.

Bart Morfitt alleges that five errors resulted in an abuse of discretion in the custody determination: (1) a deficient custody evaluation report, (2) failure to consider his positive record for care of the household, (3) unfounded allegations of his abusive behavior, (4) failure to consider Joan Morfitt’s bad conduct, and (5) improper reliance on testimony that he has a personality disorder.

During testimony and in the posttrial motions, the district court heard Bart Morfitt’s objections to the preparation of the custody report and to the qualifications of the evaluator. The district court rejected Bart Morfitt’s allegations and found that the evaluator performed a thorough investigation. Appellate courts defer to district court rulings on weight and credibility of evidence presented through experts. Alstores Realty, Inc. v. State, 286 Minn. 343, 353 , 176 N.W.2d 112, 118 (1970). Furthermore, the district court made independent determinations that departed from the report’s recommendation in providing for joint legal custody of one of the minor children. The record does not sustain Bart Morfitt’s challenges to the report, and we defer to the district court’s discretion to determine the weight to be given the report.

The record provides scant support for Bart Morfitt’s contention that he had a superior record of caring for the household. The record indicates that Joan Morfitt obtained an order for protection because of his abusive treatment and that he also treated the two older children abusively. The district court found that, after he moved out, Joan Morfitt made the home “clean and habitable” when it had previously not met even minimal standards of cleanliness.

Bart Morfitt alleges that Joan Morfitt’s assertions that he committed abuse and left guns accessible to children are unsupported. Although the record contains instances in which Joan Morfitt’s allegations of abuse were unsupported, it also confirms that the court issued an order for protection against Bart Morfitt. Joan Morfitt testified to Bart Morfitt’s abusive treatment and his treatment of the oldest child that resulted in a broken wrist and eardrum. The testimony is contradictory on the existence and extent of abuse and whether he left guns in a place accessible to the children. The district court has the responsibility to resolve factual conflicts. The district court's findings on these issues are not clearly erroneous, and we defer to its credibility determinations. Minn. R. Civ. P. 52.01.

Bart Morfitt alleges that Joan Morfitt did not rebut his allegations that she offered the children money to steal things from his home and from the home of his mother. He asserts that the district court failed to penalize her for this conduct in the custody determination. Custody is not awarded to penalize a party. It is determined based on the children’s best interests. Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 172 (1976). Whether Joan Morfitt’s conduct should preclude her from being the children’s custodian requires a balancing of the children’s best interests. The district court found that balance to weigh in Joan Morfitt’s favor, and appellate courts do not rebalance those interests. See Pikula, 374 N.W.2d at 710 (stating de novo review is inappropriate).

Finally, Bart Morfitt alleges the record does not support Joan Morfitt’s assertion that he suffers from a personality disorder. Bart Morfitt’s own testimony established that he was discharged from the Army after being diagnosed with a personality disorder. Although the nature and circumstances of the diagnosis suggest that it should be given limited weight, we see nothing in the district court’s findings that give undue emphasis to the reasons stated for Bart Morfitt’s 1984 Army discharge.

The district court did not abuse its discretion in determining custody. Furthermore, the older of the two minor children, age 16, expressed a preference to live with Joan Morfitt. Thus, the determination of physical custody was also consistent with the stated preference of one of the two minor children. See Sefkow v. Sefkow, 427 N.W.2d 203, 215 (Minn. 1988) (holding split custody is disfavored); Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991) (stating custodial preference of “older teenager” is “overwhelming consideration” in custody proceedings).

The finding of Bart Morfitt’s net monthly income is the basis for the court’s determination of his support and maintenance obligations. Joan Morfitt candidly admits that the finding overstates Bart Morfitt’s income. The record validates the admission, and we therefore remand the issues of maintenance, support, and apportionment of medical costs for reevaluation based on a proper finding of Bart Morfitt’s income. See Roth v. Roth, 406 N.W.2d 77, 79-80 (Minn. App. 1987) (requiring recalculation of maintenance and support when case remanded for finding of obligor’s income). We also remand for the district court to make findings on medical costs required by Minn. Stat. § 518.171 (1998 & Supp. 1999). Whether to reopen the record on remand is discretionary with the district court.

III

Bart Morfitt challenges the valuation and division of the parties’ property. Asset valuation is a finding of fact and is affirmed if it comes within the limits of credible estimates made by competent witnesses even if the valuation does not exactly coincide with any one estimate. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). The district court has broad discretion when dividing property and will be affirmed if its division has an acceptable basis in fact and principle. Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986).

Because the district court valued the Morfitts’ home at an amount within the range of figures in the appraisal submitted by Joan Morfitt, and, because the record otherwise supports that valuation, it is not clearly erroneous.

Bart Morfitt acknowledges two loans from his 401(k) account. The district court ruled that Bart Morfitt did not account for these amounts and that they should be apportioned to him in the property division. Bart Morfitt forthrightly admits that the second loan “may be considered for the purposes of property division,” but argues that because he took out the first loan during one of the parties’ prior, but uncompleted, dissolution proceedings, any claim to that money was “merged” in the dismissal of that proceeding. The record discloses no copies of judgments resolving prior proceedings; therefore, Bart Morfitt has not shown that he is entitled to relief. See Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968) (stating appellant has burden to provide adequate record to support claims made on appeal). To the extent Bart Morfitt argues that he did not dissipate the second loan, the district court rejected that claim for reasons based on credibility. We defer to that ruling. Sefkow, 427 N.W.2d at 210.

Bart Morfitt also disputes that he dissipated Joan Morfitt’s workers’ compensation funds. Bart Morfitt has not identified, and we are unable to identify, any district court finding that penalized him in the property distribution for dissipating the funds. Absent findings on this issue, there is nothing to review. Cf. Frank v. Illinois Farmers Ins. Co., 336 N.W.2d 307, 311 (Minn. 1983) (stating that when district court did not address issue, there was nothing to review).

Bart Morfitt alleges he should not be required to contribute to the repayment of marital loans from Joan Morfitt’s parents. He alleges that the loans are undocumented, were not mentioned in the testimony of Joan Morfitt’s mother, and that there is no proof that her parents will pursue collection of the loans. We disagree. Joan Morfitt’s mother testified that funds had been loaned to the parties, and Joan Morfitt testified that she currently owed her parents more than $10,000 for living expenses and attorneys’ fees. The existence of the loans and the likelihood of their collection are credibility questions that the district court implicitly resolved against Bart Morfitt. The findings have support in the record, and we find no basis for reversal. Sefkow, 427 N.W.2d at 210; see Doering v. Doering, 385 N.W.2d 387, 390-91 (Minn. App. 1986) (affirming district court’s credibility-based tracing determination).

IV

By motion, Joan Morfitt seeks need-based and conduct-based attorneys’ fees on appeal under Minn. Stat. § 518.14, subd. 1 (1998). Because of the failure to specify the amount of attorneys’ fees requested or incurred, we decline to award fees. See Minn. R. Civ. App. P. 139.06, subd. 1 (requiring attorney fees on appeal to be sought
by motion including “sufficient documentation to enable the appellate court to determine that appropriate amount of fees”).

Affirmed in part and remanded; motion denied.