This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1425

 

In re the Marriage of:
Steven Gary Stimmler, petitioner,
Respondent,

vs.

Dawn Richelle Stimmler,
Appellant.

 

Filed April 26, 2005

Affirmed in part and remanded

Stoneburner, Judge

 

Ramsey County District Court

File No. F00328

 

Marc G. Kurzman, Kurzman, Grant & Ojala, Suite 403, 219 Southeast Main Street, Minneapolis, MN 55414 (for respondent)

 

John M. Jerabek, Joel B. Wilson, Niemi, Barr & Jerabek, P.A., Suite 200, 510 Marquette Avenue, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant Dawn Richelle Stimmler challenges denial of maintenance, property distribution, provision for children’s health insurance, and an award of attorney fees in this dissolution action.  Because the judgment adequately addressed provision of health insurance for the children and there was no abuse of discretion in the award of attorney fees, we affirm those provisions.  Because the findings concerning appellant’s income are inadequate to allow meaningful review of the maintenance issue and, without clarification, the distribution of proceeds from the sale of the homestead is inequitable, we remand those issues.

FACTS

 

            The parties were married for almost 19 years and have three children who were 14, 12, and 9 at the time of trial.  Prior to trial, respondent moved in limine for an order precluding appellant from seeking maintenance as a sanction for discovery violations.  The motion was denied.  The parties stipulated to matters of custody and parenting time, and submitted the issues of maintenance; child support, including health insurance for the children; property division; and attorney fees for trial.  The matter was tried to a referee whose findings and recommendations were accepted by the district court. 

            At trial, appellant testified that by agreement of the parties she was primarily a stay-at-home mother, working only intermittently and part time.  Respondent testified that appellant worked full time after the children were born and was underreporting her past employment and work experience.  There is no finding on whether appellant was primarily a stay-at-home mother during the marriage.

            Many of the purported “findings” in the judgment are merely a recitation of what a party claimed.  Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989) (stating that when a purported finding is prefaced with phrases such as “petitioner claims” or “respondent asserts,” the fact-finder is not making true findings of fact but is merely reciting the parties’ claims).  Although such recitations may be helpful to an understanding of what was considered in making findings, the fact-finder must still make affirmative statements of the factual findings.  Id.

            Respondent’s net monthly income was found to be $3,295.96, and he was required to pay guideline child support to appellant in the amount of $1,153.59 per month.  There is no finding on respondent’s monthly expenses, but there is a recitation that respondent claimed monthly expenses of $2,850.

            There is no finding regarding appellant’s net monthly income, but there is a finding that appellant is employed part time, approximately 20 hours per week, as a waitress at Old Chicago.  There is a recitation that “[a]ccording to [appellant] she earns $8.00 to $9.00 per hour including tips.”  There is a finding that appellant, at the beginning of the dissolution proceedings, was receiving $508.00 bi-weekly unemployment compensation and was developing a youth hockey academy that ran from June 2003 to August 2003.  There is a recitation that appellant testified that she had 57 students who paid tuition of between $600 and $800, with a higher percentage paying $800, but claimed that the hockey academy lost $11,000.  The findings state that appellant “has provided no evidence to support her claim that the hockey school is not profitable.”  There is a recitation of appellant’s gross income as reported on tax returns for 1999, 2000, and 2001,[1] but no finding about how these figures relate to appellant’s current income or income-earning ability.  There is a specific finding that appellant failed to show that she is unable to work full time or longer shifts because of a claimed medical condition, rheumatoid arthritis, but no finding about whether full-time or longer shifts would be appropriate for appellant or consistent with her parenting responsibilities or her situation during the marriage.           

            There is no finding concerning appellant’s expenses, but there is a recitation of her claimed monthly living expenses, which total $3,052 for appellant and the three children. 

            There is no finding on the amount of the parties’ debt, but there is a recitation that respondent estimated the joint debt at $20,000 and a statement that appellant provided “a so-called Promissory Note purporting to promise her father the sum of $9,775.94 for loans made to her.”  There is a finding that “[t]his document is self-generated by [appellant], and [appellant’s] credibility is suspect.”  There is a recitation of discovery issues in great detail to support the finding that appellant is not credible.  There is a finding that the parties enjoyed a middle-class standard of living, which was heavily supported by debt. 

            The fact-finder found that “while [appellant’s] failure to cooperate with discovery would have resulted in [appellant] forfeiting her spousal maintenance claim, it is also true that [appellant] has failed to meet her burden that she cannot provide adequate self-support, and is in need of spousal maintenance.”

            The homestead was valued by splitting the difference between appellant’s testimony of an estimated value of $200,000 and respondent’s testimony of an estimated value of $225,000, resulting in a finding that the homestead has a reasonable value of $212,500.  It was found that the homestead is encumbered by a first mortgage with a balance of approximately $70,000 and a second mortgage with a balance of $43,880.81.  The homestead was awarded to appellant subject to respondent’s lien for one-half of the equity in the homestead.  The judgment provides that if the marital debts of the parties are not paid within 60 days after the judgment, the homestead is to be sold and the proceeds applied first to pay off the mortgage loans and costs of closing, second to pay marital debt, and next to pay respondent’s lien, with any remainder going to appellant.  There is no provision in the judgment for a reduction in respondent’s lien to reflect his share of the closing costs or marital debts.

            The judgment makes respondent responsible for all premiums for the children’s health insurance and requires appellant to pay $5,000 in conduct-based attorney fees.

            Appellant’s motion for amended findings and conclusions or, in the alternative, a new trial, was denied.  This appeal followed.

D E C I S I O N

I.          Scope of appeal

 

            Respondent asserts that appellant’s motion for a new trial or amended findings was not “proper” within the meaning of Minn. R. Civ. App. P. 104.01, subd. 2, and therefore did not toll the time to appeal from the underlying judgment, making appellant’s appeal from the judgment untimely and limiting the scope of appeal to denial of appellant’s motion for a new trial. 

            “A timely motion is proper [under Minn. R. Civ. App. P. 104.01, subd. 2] if the motion is made in compliance with the rules of civil procedure and if, on the face of the document, the party has filed a motion that is expressly allowed under Minn. R. Civ. App. P. 104.01, subd. 2.”  Mingen v. Mingen, 662 N.W.2d 926, 929 (Minn. App. 2003) (citing Madson v. Minn. Mining & Mfg. Co., 612 N.W.2d 168, 171-72 (Minn. 2002), aff’d, 679 N.W.2d 724 (Minn. 2004).  In Madson, the supreme court stated that “the test for a ‘proper’ motion should not be dependent on the success of the motion.”  612 N.W.2d at 171.  We agree that appellant’s motion, which only recited that it is based on “judicial error,” does not meet the Madson test for a “proper” motion because it does not comply with the requirement of Minn. R. Civ. P. 7.02, that a motion “shall state with particularity the grounds therefor.”  But the appellant’s affidavit was filed with the motion and set out in much greater detail the grounds for the motion.  Taken together the documents give respondent adequate notice of the grounds for the motion.  And Madson states that

[i]n order to avoid uncertainty, we conclude that the test for determining whether a motion is authorized, and therefore proper, is to determine whether on the face of the document the party has filed a motion that is expressly allowed under subdivision 2.  This interpretation provides the court and all of the parties to the litigation with the clarity that the 1998 amendments were trying to achieve.  A party will not have to await the resolution of its motion to determine whether the motion has tolled the time for appeal. 

 

612 N.W.2d at 172.

 

            In this case, the referee denied respondent’s motion to strike the motion as not a proper motion, although the referee ultimately concluded that the motion for amended findings was not specific and failed to provide any grounds under Rule 60.02, and the motion for a new trial was equally non-specific, failing to provide any grounds under Rule 59.01 to support an order for a new trial.  Despite the inadequacy of the substance, we conclude that appellant’s motions successfully tolled the time for appeal from the judgment.

II.        Maintenance

            The determination of spousal maintenance is within the district court’s broad discretion.  Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989).  An appellate court evaluates the district court’s decision on maintenance under an abuse-of-discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997); Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  The district court will not be determined to have abused its discretion with respect to an award of maintenance unless the court’s resolution of the issue is “against logic and the facts on [the] record[.]”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).  “Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous.”  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).  And an appellate court defers to the district court’s credibility determinations.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).

            The district court may award maintenance in a marital dissolution case if it finds that the spouse seeking maintenance lacks sufficient property to provide for his or her reasonable needs or is unable to provide adequate self-support through appropriate employment.  Minn. Stat. § 518.552, subd. 1 (2004).  The court is to consider “all relevant circumstances,” including the standard of living established during the marriage, in determining whether a spouse is able to provide adequate self-support.  Id., subd. 1(b).  The Minnesota Supreme Court has recognized that there is a “burden of proof contemplated by the spousal maintenance statute” and that “implicit in Minn. Stat.           § 518.552 is that the spouse seeking maintenance demonstrate the need therefor.”  Dobrin, 569 N.W.2d at 202.

            In order to impute income to a party for the purpose of determining if maintenance is needed, the court must find that the party was voluntarily underemployed in bad faith.  Maurer v. Maurer, 607 N.W.2d 176, 180 (Minn. App. 2000) (citing Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997), reversed on other grounds, 623 N.W.2d 604 (Minn. 2001)).  “As a matter of law . . . a court may not find bad faith underemployment where . . . a homemaker 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.”  Id.at 180–81 (citing Carrick at 410).     

Appellant argues that she should have been awarded spousal maintenance because she is “clearly incapable of self-support.”  Appellant argues that even if she works full time, her wages added to the child support would still be inadequate to meet her reasonable monthly expenses.  It is clear that the fact-finder in this case found several items of appellant’s testimony and documentary evidence not credible.  But due to the lack of actual findings on essential factors relating to maintenance, we are unable to adequately review the factual bases for the ultimate finding that appellant failed to meet her burden of proof to demonstrate that maintenance is necessary.[2] 

Effective appellate review of the exercise of discretion is possible only if there are sufficiently detailed findings of fact to demonstrate consideration of all factors relevant to an award of permanent spousal maintenance.  Stich, 435 N.W.2d at 53.  In this case, the lack of specific findings on what portions of appellant’s evidence was credible or not credible, and failure to make any findings on appellant’s income and expenses, precludes effective review.  We recognize that appellant failed to provide the type of documentation desired by the fact-finder to support her claim for maintenance, but the record evidence is that appellant is a high school graduate whose documented earnings have not historically been adequate for her self-support.  Because we are unable to determine how the court arrived at the conclusion that appellant failed to show that she is not capable of meeting her reasonably monthly needs without maintenance, we remand for adequate findings on all relevant factors under Minn. Stat. § 518.552, subd. 1(b).  See Gatfield v. Gatfield, 682 N.W.2d 632, 638 (Minn. App. 2004) (remanding for additional findings because there was “ambiguity as to how the district court reached its decision on spousal maintenance”), review denied (Minn. Sept. 29, 2004). 

If any income has been imputed to appellant, the findings must fully explain the basis for income imputation.  By remanding we do not intend to imply that appellant is entitled to maintenance.  If, however, on remand, the district court concludes that appellant has, as she asserts, established grounds for maintenance under Minn. Stat.         § 518.552, subd. 1 (b), then the factors in section 518.552, subd. 2 (2004), must also be fully addressed.  On remand, the fact-finder has discretion to reopen the record to allow both parties to present any additional evidence necessary to permit the fact-finder to make adequate findings on this issue.  Prahl v. Prahl, 627 N.W.2d 698, 704 (Minn. App. 2001).

            Appellant also argues that the district court abused its discretion by divesting itself of jurisdiction over maintenance because the parties did not agree to divestment of jurisdiction.  But appellant relies on cases in which maintenance was awarded pursuant to stipulation and the issue was whether the parties’ stipulations validly waived the statutory right to seek modification of maintenance.  See, e.g., Loo v. Loo, 520 N.W.2d 740 (Minn. 1994); Karon v. Karon, 435 N.W.2d 501 (Minn. 1989).  In this case, there was no award of maintenance, and there was no stipulation on maintenance issues.  If a district court in a dissolution case does not award maintenance or reserve jurisdiction to do so, maintenance cannot be awarded in the future because the court’s jurisdiction over maintenance is lost following the dissolution.  Berger v. Berger, 308 Minn. 426, 428, 242 N.W.2d 836, 837 (1976).  Whether to reserve jurisdiction over the issue of maintenance is within the district court’s discretion.  Minn. Stat. § 518.55, subd. 1 (2004) (in dissolution judgment court may reserve jurisdiction of the issue of maintenance for determination at a later date).  In certain situations, this court has held that reservation of jurisdiction to award maintenance is appropriate.  See, e.g. Van de Loo v. Van de Loo, 346 N.W.2d 173, 178 (Minn. App. 1984) (finding that district court’s act of reserving the issue of spousal maintenance when none was initially awarded, because of the uncertainty of a wife’s future health status due to cancer reoccurrence, was a proper exercise of the court’s discretion).  But appellant has not argued in this appeal that the district court should have reserved jurisdiction to award maintenance, and there is no indication in the record that appellant sought a reservation of the maintenance issue in district court.  Although the language divesting the district court of jurisdiction over maintenance in this case was unnecessary, it was not an abuse of discretion and merely states the consequences of a decision not to award or reserve maintenance.

III.       Property division

a.         Valuation of homestead

Appellant argues that the findings do not explain why $212,500 is a fair and accurate value for the homestead.  A district court’s valuation of an item of property is a finding of fact, and it will not be set aside unless it is clearly erroneous on the record as a whole.  Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn. 2001).  “Valuation is necessarily an approximation in many cases.” Maurer, 623 N.W.2d at 606.  When a trial court values assets in a dissolution proceeding, “[e]xactitude is not required. . . it is only necessary that the value arrived at lies within a reasonable range of figures.” Johnson v. Johnson, 277 N.W.2d 208, 212 (Minn. 1979) (finding trial court’s valuation of property at $24,000 was not clearly erroneous, when record contained husband’s testimony that property was worthless, and wife presented evidence that established husband had recently represented the property as having a fair market value of $25,000 in a signed financial statement.)  If the parties offer no evidence of a professional’s valuation of the home, the court can base its findings on the opinion of the spouse the court finds more credible unless to do so would be clearly erroneous.  See, e.g., Quinlivan v. Quinlivan, 359 N.W.2d 276, 280-81 (Minn. App. 1984) (when wife submitted information two years old that valued home at $45,000 and neither party submitted an expert appraiser valuation, the court was justified in valuing home at $60,000 when husband testified it was worth $60,000 to $65,000).  In this case, no expert testimony was provided on the value of the homestead, and the finding accurately reflects the parties’ testimony about the value.  Setting the value halfway between the values provided by the parties was not an abuse of discretion.

Appellant asserts that the findings are deficient because there is not a specific finding on the parties’ equity in the homestead.  But there is a specific finding on the approximate value of the first mortgage and the value of the second mortgage.  From this finding, it can be deduced that the parties’ equity is $212,500 – ($70,000 + $43,880.81) = $98,619.19.  And the amount of respondent’s lien on the homestead, $49,309.50, representing approximately one-half of $98,619.19, further demonstrates that the findings reflect the parties’ equity in the homestead in a manner supported by the record.

b.         Valuation of debts

Appellant also challenges the finding of the amount of marital debt as incomplete and lacking detail.  Although more detail in the findings concerning the marital debts and the parties’ specific responsibility for each item would have been desirable, we cannot say that it was an abuse of discretion to credit respondent’s estimate of the amount of the debt over appellant’s more detailed testimony or to order the parties to each pay one-half of the total marital debt. 

c.         Distribution of property

Appellant challenges the portion of the property distribution that requires sale of the homestead if the marital debts are not paid in full within 60 days after the date of the judgment, and which requires application of the proceeds to costs of sale, marital debt, and respondent’s lien before any proceeds are awarded to appellant. 

The division of marital property will be affirmed if it has an acceptable basis in fact and principle even though the appellate court might have resolved the matter differently.  Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986).  While an equal division is generally deemed appropriate upon the dissolution of a long-term marriage, a trial court’s division of property need only be “just and equitable” and need not be mathematically equal, even upon dissolution of a long-term marriage.  See Miller v. Miller, 352 N.W.2d 738, 742 (Minn. 1984); Koenen v. Koenen, 413 N.W.2d 280, 282 (Minn. App. 1987).  Although the court’s discretion is broad, such discretion is not unlimited and should be supported by findings setting out the court’s rationale. See Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983); Dick v. Dick, 438 N.W.2d 435, 437 (Minn. App. 1989).  Property division factors are set out in statute:

the court shall make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property. The court shall base its findings on all relevant factors including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party. The court shall also consider the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker.

 

Minn. Stat. § 518.58, subd. 1 (2004).

In Dick v. Dick, the trial court’s findings were inadequate because the order provided a three-to-one (wife got $11,000 and husband got $4,000) disposition of marital property without explanation.  438 N.W.2d at 437.  The case was remanded for additional findings that considered the statutory factors and were “supported by a statement of [the court’s] rationale for the division of the assets.”  Id.

Appellant argues that the provision allows respondent to force a sale of the home and thereby obtain an inequitable portion of the marital estate because there is no provision for reducing the amount of respondent’s lien to account for his share of the closing costs and marital debts.  There is no explanation in the judgment for this inequitable result.  At oral argument, respondent argued that there was an implied condition that appellant would be able to recover any portion of respondent’s share of closing costs that she paid, which we interpret as a concession that the provision as written is inequitable.  We remand this provision for clarification and for an explicit provision reducing respondent’s lien by his share of marital debts and closing costs.

IV.       Attorney fees

 

The judgment requires appellant to pay $5,000 of respondent’s attorney fees based on a finding that appellant’s conduct and her attorney’s conduct, which included disregarding a discovery order, unreasonably contributed to the length and expense of the proceedings.  A determination on attorney fees is almost entirely within the district court’s discretion and will not be disturbed absent an abuse of discretion.  Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987).  An allocation of conduct-based attorney fees may only be based on conduct that occurs during the litigation process.  Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn. App. 2001).  Appellant asserts that the events in this case that led to the award of attorney fees are “in the past,” but it is indisputable that the events occurred during litigation, i.e., after the summons and petition were filed and served.

Respondent asserts that the award of attorney fees was within the court’s discretion based on appellant’s failure to comply with a discovery order.  Appellant argues that the district court’s award of attorney fees was improper because it was based on facts that were “off the record” or allegations presented to the court in affidavits of persons who did not testify at trial, denying her the opportunity to cross-examine the witnesses and to present testimony.  A party seeking attorney fees does so by motion, and motions were properly made in this case with supporting affidavits.  We conclude that appellant had ample opportunity to counter respondent’s affidavits. 

Appellant also argues that the problems complained of were due to her attorney, not her actions, and that she should not be penalized for his poor performance.  But the district court found that appellant was involved in the actions that led to delays in the litigation.  Although we may have decided this issue differently, we cannot say that the award constituted an abuse of discretion.

V.        Children’s health insurance

            Appellant asserts that the judgment failed to identify which party should provide and pay for the children’s health insurance until such time as one of the parties obtains employment that includes health insurance.  We disagree.  Respondent was found to be providing health insurance for the children under a COBRA from a former employer and the judgment clearly provides that respondent shall be responsible for all health insurance premiums for the minor children. 

            Affirmed in part and remanded.