STATE OF MINNESOTA

IN COURT OF APPEALS

C6-99-1389

In re the Marriage of:

Barbara Jean Ellis, petitioner,

Respondent,

vs.

David Lynn Ellis,

Appellant.

Filed May 30, 2000

Affirmed in part, reversed in part, and remanded

Randall, Judge

Polk County District Court

File No. F2-96-1501

Jay Fiedler, Pearson Christenson, 24 North Fourth Street, P.O. Box 5758, Grand Forks, ND 58206 (for respondent)

Shirley A. Dvorak, Moosbrugger, Dvorak, & Carter, P.L.L.P., 311 South Fourth Street, Suite 101, Grand Forks, ND 58201 (for appellant)

Considered and decided by Amundson, Presiding Judge, Randall, Judge, and Huspeni, Judge.^*

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

RANDALL, Judge

In an appeal from a dissolution judgment and an order denying appellant's new trial motion, appellant alleges the district court (a) inequitably divided the parties' property because the court over-valued his partnership interest; (b) improperly failed to credit him for credit-card debt he paid off during the parties' separation; (c) overstated his child-support obligation because the court improperly imputed an excessive amount of income to him without reopening the record to receive additional evidence on what he alleges was his bona fide career change; (d) improperly awarded respondent spousal maintenance that is excessive both in duration and amount; and (e) should have awarded him conduct-based attorney fees against respondent. We affirm in part, reverse in part, and remand.

FACTS

After 29 years of marriage, the parties separated in September 1996. The parties have one minor child, J.M.E., and two emancipated children. At the time of trial, appellant David Lynn Ellis was 46 and respondent Barbara J. Ellis was 45.

Respondent has a high school education and has worked throughout the parties' marriage. She has been employed by American Crystal Sugar Company (Crystal Sugar) as a seasonal laborer for the past 20 years, earning $11.09 per hour. She works ten months a year and collects unemployment during the other two months. Her gross earnings for 1998, including unemployment, were $24,788, resulting in an average net monthly income of $1,802.21. The district court found the reasonable monthly expenses for respondent and J.M.E. to be $2,400.

Appellant has a high school education and has worked for the Burlington Northern Santa Fe Railroad (BNSF) for the past 19 years as a conductor, switchman, and switch foreman. As a conductor, he was on call 24 hours a day, seven days a week. In 1998, appellant transferred from conducting to working as a switchman in the railroad yard. He stated that he took the lower paying switchman position so he would have more regular hours, a more normal lifestyle, and could spend more time with J.M.E. Appellant, along with two other individuals, is also a partner in a partnership known as JEDCO. The partnership owns several apartment buildings.

The district court awarded respondent sole physical custody of J.M.E., subject to reasonable visitation, and the parties were awarded joint legal custody. Appellant was ordered to pay child support in the amount of $1,000 per month and spousal maintenance in the amount of $500 per month, commencing the month after his child support obligation ceased and ending when respondent begins to receive a portion of appellant's railroad retirement benefits. Assuming appellant retires at the age of 65, he will be obligated to pay spousal maintenance for approximately 15 years. As part of the property division, respondent received $110,865 in assets and appellant received $111,307.20. These amounts include the parties' debt incurred during the marriage. The parties were ordered responsible for their own attorney fees.

D E C I S I O N

Appellant argues the district court's valuation of his interest in the JEDCO partnership is clearly erroneous because the court did not factor in his capital account when determining the value of his partnership interest.

The district court has broad discretion in making valuation decisions. Wopata v. Wopata, 498 N.W.2d 478, 485 (Minn. App. 1993). The district court does not need to be exact in its valuation of assets; "it is only necessary that the value arrived at lies within a reasonable range of figures." Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). The district court's findings of fact relating to the valuation of assets will not be overturned unless clearly erroneous. Wopata, 498 N.W.2d at 485.

For the purposes of dividing property in a dissolution, the valuation of a partner's interest is approached in the same manner as valuation of a withdrawing partner's interest or valuation of a partner's interest on dissolution of the partnership. Johnson v. Johnson, 277 N.W.2d 208, 213 (Minn. 1979). The difference between the fair market value of the partnership's assets and liabilities are first determined, then "the partners' capital accounts, which are debts of the partnership, are subtracted from that figure." Id. (citation omitted). "The partner's capital account in full is an additional, separate asset to be included in the division of property." Id. (citation omitted).

Under Johnson, the district court was required to consider the value of appellant's capital account in determining the value of his partnership interest. The court failed to do so and offered no reason why it did not consider the value of appellant's capital account. Because the district court failed to consider the value of appellant's capital account or provide any reason why it did not do so, we remand this issue for appropriate findings on the value of appellant's partnership interest.

II.

Appellant argues the district court was clearly erroneous in dividing the parties' credit card debt because the court failed to credit him the credit-card debt he paid during the parties' separation.

The apportionment of marital debt by the district court "is treated as a property division and reviewed under an abuse of discretion standard." Berenberg v. Berenberg, 474 N.W.2d 843, 848 (Minn. App. 1991) (citation omitted), review denied (Minn. Nov. 13, 1991). The district court is not required to apportion debt, "but is only required to meet the just and equitable standard of property divisions." Id. (citation omitted). The district court also "has discretion to award debts to one party only." Meyer v. Meyer, 375 N.W.2d 820, 828 (Minn. App. 1985) (citation omitted), review denied (Minn. Dec. 30, 1985).

The property division ordered by the court is essentially equal. Appellant received $111,307.20 and respondent received $110,865. The evidence establishes that appellant has a higher income than respondent. In light of the parties' relative incomes and the equal division of the overall marital estate, the district court did not abuse its discretion in dividing the parties' credit-card debt. See Yackel v. Yackel, 366 N.W.2d 382, 385 (Minn. App. 1985) (holding district court did not abuse discretion ordering husband solely responsible for parties' debt "[i]n light of the relative incomes and expenses of the parties.").

III.

Appellant argues the district court erroneously imputed income to him when determining child support and erred when it refused to reopen the judgment to consider additional evidence that his job transfer was a bona fide career change.

Imputing income is appropriate only where the obligor voluntarily chooses to be unemployed or underemployed. Murphy v. Murphy,574 N.W.2d 77, 82 (Minn. App. 1998). If the court finds that a support obligor is voluntarily underemployed, it shall set the support obligation based on a determination of imputed income. Minn. Stat. § 518.551, subd. 5b(d) (Supp. 1999). A parent is not considered voluntarily underemployed if he establishes that the underemployment:

(1) is temporary and will ultimately lead to an increase in income; or (2) represents a bona fide career change that outweighs the adverse effect of that parent's diminished income on the child.

Id.

Appellant contends the district court's findings that his job change was not a bona fide career change are clearly erroneous. In determining whether findings are clearly erroneous, this court reviews the record in the light most favorable to the district court's findings. Lossing v. Lossing, 403 N.W.2d 688, 690 (Minn. App. 1987). A finding is clearly erroneous "if the reviewing court is left with the definite and firm conviction that a mistake has been made." Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted). An appellate court defers to the district court's credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). The district court's findings are not clearly erroneous simply because the record may support findings other than those made by the district court. See Elliott v. Mitchell, 311 Minn. 533, 535, 249 N.W.2d 172, 174 (1976) (affirming district court's findings although "the evidence might [have] support[ed] another conclusion").

Appellant testified that his decision to change jobs was voluntary and done so he could spend more time with J.M.E. But between January 1, 1999, and March 18, 1999, appellant admitted that J.M.E. spent only two nights with him. This testimony corroborates respondent's testimony that since appellant's change in jobs, appellant has not spent any more time with the parties' minor son than before the job change. She also testified that appellant told her that he took the lower paying job because he does not want to give her or their son anything. The district court was in the best position to assess the credibility of the witnesses and their testimony. Although the evidence presented at trial could support a finding in appellant's favor, the evidence also supports the district court's findings that appellant's change in employment was not a bona fide career change and that he is underemployed. Because the district court's findings are supported by the record evidence and not clearly erroneous, the district court did not err in imputing income to appellant for the purposes of determining child support.

Appellant argues that the district court erroneously calculated his imputed income because the court did not consider the factors listed in Minn. Stat. § 518.551, subd. 5b(d). Imputed income is defined as the estimated earning ability of the parent based on the parent's prior earnings history, education, and job skills, and the availability of jobs in the community for an individual with the parent's qualifications. Minn. Stat. § 518.551, subd. 5b(d).

Contrary to appellant's assertion, the district court did consider the statutory factors for imputing income. The district court noted appellant's age, level of education, and work history. The court examined appellant's earnings history with BSNF, noting the steady rise in appellant's earnings until his job change. The court acknowledged appellant's testimony that 1997 was not a representative year because of the great Red River flood and found that appellant's "1997 earnings were unusually high because of certain conditions in the industry." The court determined that appellant's 1996 earnings were representative of the income appellant "can and should be earning," and imputed income based on this amount. The district court did not abuse its discretion in determining the amount of appellant's imputed income when determining child support.

Appellant argues the district court erred when it denied his motion for amended findings on the issue of whether his job change was voluntary. After trial, appellant claimed that new evidence in the form of an affidavit from the terminal manager for BNSF established that, contrary to his trial testimony, his job change was involuntary. However, the affidavit submitted by appellant is general in nature and does not contradict his trial testimony. There is also nothing in the record to suggest that the affidavit was not available at the time of trial. Given the general, nonspecific nature of the affidavit, its failure to specifically address the reasons for appellant's job change, and its apparent availability at the time of trial, the district court did not abuse its discretion in denying appellant's motion for amended findings.

IV.

Appellant challenges his maintenance obligation. We note that under the judgment, that obligation does not begin until the emancipation of the parties' minor child. J.M.E. turns 18 in 2003. A minor's general date of emancipation is his eighteenth birthday, but that is subject to certain exceptions. See Minn. Stat. § 518.54, subd. 2 (1998) (defining "child" for purposes of support as individual under age of 18; under age of 20 who is attending secondary school; or who is incapable of self-support by reason of a physical or mental condition). Because emancipation has not yet occurred, the district court functionally reserved jurisdiction over maintenance. It is generally improper for maintenance to be based on what are assumed will be the future circumstances of the parties. See Carrick v. Carrick, 560 N.W.2d 407, 412 (Minn. App. 1997) (reversing and remanding maintenance award based on assumed future change in obligor's circumstances). Also, a maintenance award made after a reservation is treated as an initial setting. The award must be based on the parties' circumstances existing at the time the award is made. Stevens v. Stevens, 501 N.W.2d 634, 636 (Minn. App. 1993). It would be premature for us to address the maintenance issue at this time. Once J.M.E. is formally emancipated and appellant's obligation to pay child support has ceased, the parties are free to accept the maintenance figure suggested, or, can come back into court and challenge it if the circumstances existing at that time have changed. Thus, we decline to address maintenance now. Cf. Driscoll v. Driscoll, 414 N.W.2d 441, 446-47 (Minn. App. 1987) (declining to address question of permanent maintenance as premature during period of rehabilitative maintenance).

Finally, appellant argues the district court abused its discretion in denying him attorney fees that were incurred during the sale of the parties' house located at 921 10th Avenue Southeast. The district court ruled that the parties were responsible for their own attorney fees.

Appellant contends that respondent unreasonably withheld her consent to the sale of the parties' house, forcing him to seek court intervention on two separate occasions. Generally, an appellate court will not interfere with a district court's denial of attorney fees absent an abuse of discretion. Pfleiderer v. Pfleiderer, 591 N.W.2d 729, 733 (Minn. App. 1999). Under the circumstances, we conclude that respondent's refusals to sell the house were based on legitimate concerns, and were not bad faith or for the pure purpose of delay. The district court did not abuse its discretion in denying appellant an award of attorney fees.

Affirmed in part, reversed in part, and remanded.

^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 20.