This opinion will be unpublished and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

A04-1352

 

In re Ikechi Kallys Albert, petitioner,

Appellant,

 

vs.

 

Monica Jones-Albert,

Respondent.

 

Filed June 10, 2005

Affirmed

Willis, Judge

 

Hennepin County District Court

File No. DC 267226

 

Ikechi Kallys Albert, P.O. Box 583352, Minneapolis, MN  55458 (pro se appellant)

 

Roderick N. Hale, 301 Fourth Avenue South, #270, Minneapolis, MN 55415 (for respondent)

 

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

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            In this marital-dissolution proceeding, pro se appellant argues that the district court lacked jurisdiction to award custody and otherwise abused its discretion by (1) determining that respondent was the primary parent and awarding her sole custody of the children; (2) miscalculating its child-support award and imputing income to appellant; (3) denying spousal maintenance to appellant; and (4) inequitably distributing the marital property.  Because we find that the district court did not lack jurisdiction and did not abuse its discretion, we affirm.

FACTS

As the district court noted, the underlying facts and procedural history of this case are not entirely clear.  But the following appear to be the facts:  Appellant Ikechi Kallys Albert and respondent Monica Jones-Albert were married in November 1998 and have three minor children.  The marriage was acrimonious from the beginning.  In June 2001, appellant petitioned for dissolution, but the parties stipulated to a suspension of the dissolution proceedings.  In November 2002, appellant petitioned for a reactivation of the proceedings. 

In July 2003, appellant and respondent separated after an incident of domestic abuse by appellant against respondent.  Since the separation, respondent has been living with the children in a Bloomington apartment, and appellant has been living with a girlfriend in Minneapolis.  

In October 2003, a family court referee granted respondent an order for protection (OFP) against appellant, awarding her temporary sole legal and physical custody of the children and ordering appellant to pay $662 per month in child support.  In November 2003, the referee granted appellant a reciprocal OFP against respondent and vacated the child-support award that was made as part of the OFP granted to respondent.  Appellant challenged the order granting respondent’s OFP on appeal, and this court affirmed.  Jones-Albert v. Albert, No. A04-395 (Minn. App. Nov. 9, 2004), review denied (Minn. Mar. 15, 2005). 

In January 2004, respondent moved the district court in the dissolution action for temporary relief, requesting that appellant pay child support.  In February 2004, a family court referee ordered appellant to pay $436 per month in child support and awarded respondent temporary sole legal and physical custody of the children, subject to parenting time for appellant.  The referee also set a hearing date in the dissolution matter.  Appellant petitioned for district court review of the referee’s findings, claiming that the referee miscalculated and wrongly imputed income.  The district court affirmed the referee’s order, stating that

[i]t appears this matter is here on review of the Referee’s order dated February 4, 2004, but because of a large number of unusual and confusing filings, . . . it is not entirely clear precisely what questions are now presented for or properly open to review.

 

The referee concluded that the parties’ marriage shall be dissolved; ordered appellant to pay child support of $436 per month; awarded respondent permanent sole legal and physical custody of the children, subject to parenting time for appellant; and distributed the marital property.  The district court approved the referee’s findings and conclusions, and the judgment was filed on May 26, 2004. 

In July 2004, appellant filed a notice of appeal from the dissolution judgment and in October 2004 sought review of the district court’s order that affirmed the referee’s February order for temporary relief, essentially requesting summary reversal of both.  In an order dated December 7, 2004, this court denied appellant’s motion as unauthorized, directing him to brief the merits on appeal.  This appeal follows.

D E C I S I O N

            At the outset, we agree with the district court’s assessment that the procedural posture of this case is unclear because of the volume of unorthodox filings by appellant.  We also find that many of appellant’s pro se arguments here are similarly obscure.  “Pro se litigants are generally held to the same standards as attorneys.”  Heinsch v. Lot 27, Block 1 For’s Beach, 399 N.W.2d 107, 109 (Minn. App. 1987).  Although we give some latitude to pro se litigants, we cannot permit a bending of all the rules and requirements.  Liptak v. State ex rel. City of New Hope, 340 N.W.2d 366, 367 (Minn. App. 1983).  And although we may be “disposed to disregard defects in the brief, . . . that does not relieve [pro se] appellants of the necessity of providing an adequate record and preserving it in a way that will permit review.”  Thorp Loan & Thrift Co. v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).   

I.          Jurisdiction

We review issues regarding subject-matter jurisdiction de novo.  Johnson v. Murray, 648 N.W.2d 664, 670 (Minn. 2002).  And a party may raise the issue of subject-matter jurisdiction at any time, including for the first time on appeal.  Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn. App. 1995), review denied (Minn. May 31, 1995).

Appellant argues that because his appeal from an OFP proceeding, at which a family court referee awarded respondent temporary sole legal and physical custody, was pending when the referee in the dissolution proceeding awarded respondent permanent sole legal and physical custody, it was erroneous for “the trial court and the court of appeals [to] hold concurrent jurisdiction of the same issue.”  

Generally, when there is an appeal pending, a district court’s jurisdiction is suspended as to those matters that are necessarily involved in the appeal.  Spaeth v. City of Plymouth, 344 N.W.2d 815, 824 (Minn. 1984).  But the district court retains jurisdiction as to those matters that are independent of or supplemental to the appeal or that are collateral to the proceeding in which the appealed order or judgment was rendered.  Id.  Here, the referee in the OFP proceeding granted respondent temporary custody in October 2003.  On March 10, 2004, appellant challenged that order on appeal, and we affirmed on November 9, 2004.  Jones-Albert v. Albert, No. A04-395 (Minn. App. Nov. 9, 2004), review denied (Minn. Mar. 15, 2005).  Thus, the appeal from the OFP proceeding was pending when the referee in the dissolution proceeding granted respondent permanent custody in May 26, 2004.

But the issue of whether to grant temporary custody as part of an OFP proceeding and the issue of whether to grant permanent custody as part of a dissolution proceeding are two distinct issues in two distinct proceedings guided by two distinct standards:  Minn. Stat. § 518B.01, subd. 6(a)(4) (2004), authorizes the district court in an OFP proceeding to “award temporary custody . . . on a basis which gives primary consideration to the safety of the victim and the children”; and Minn. Stat. § 518.17, subd. 3(a) (2004), authorizes the district court in a dissolution proceeding to award custody only after considering in detail the multiple factors relating to the best interests of the children.  Moreover, proceedings under chapter 518B “shall be in addition to other civil or criminal remedies.”  Minn. Stat. § 518B.01, subd. 16 (2004) (emphasis added).  Thus, the October 2003 temporary-custody determination, made under section 518B.01, subd. 6(a)(4), was independent of the May 2004 permanent-custody determination, made under Minn. Stat. § 518.17, subd. 3(a).  We conclude that appellant’s jurisdictional argument is without merit.

II.        Child Custody

Our review of custody determinations is limited to determining whether the district court abused its discretion by making unsupported findings or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  We will sustain a district court’s findings unless they are clearly erroneous.  Pikula  v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  When there is conflicting evidence, we defer to the district court’s determinations of credibility.  Sefkow v. Sefkow, 427 N.W.2d 203, 211 (Minn. 1988).  The law “leaves scant if any room for an appellate court to question” the district court’s custody considerations.  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000). 

Appellant claims that the record does not support the district court’s finding that respondent is the primary caretaker of the children.  In awarding child custody in a dissolution proceeding, a district court must consider the best interests of the children.  Minn. Stat. § 518.17, subd. 3(a)(3).  One of the 13 factors a district court must consider and evaluate in determining what custody arrangement is in the children’s best interests is who is the children’s primary caretaker.  Id., subd. 1(a)(3) (2004).  The primary caretaker is the party who has taken the primary responsibility of caring for and nurturing the children, including:

(1) preparing and planning of meals; (2) bathing, grooming and dressing; (3) purchasing, cleaning and care of clothes; (4) medical care, including nursing and trips to physicians; (5) arranging for social interaction among peers after school, i.e. transporting to friends’ houses or, for example, to girl or boy scout meetings; (6) arranging alternative care, i.e. babysitting, day-care, etc.; (7) putting child to bed at night, attending to child in the middle of the night, waking child in the morning; (8) disciplining, i.e. teaching general manners and toilet training; (9) educating, i.e., religious, cultural, social, etc.; and, (10) teaching elementary skills, i.e., reading, writing and arithmetic.

Steinke v. Steinke, 428 N.W.2d 579, 583 (Minn. App. 1988) (quoting Pikula, 374 N.W.2d at 713). 

 

Here, the district court awarded respondent sole legal and physical custody of the children, determining, among other things, that respondent “has been the children’s primary parent both before the separation as well as after”; that “[t]he children have been residing with [respondent] since the parties’ separation in July 2003”; and that respondent “has been arranging for the children’s schooling needs, has taken them to medical appointments and dealing with [the middle child’s] heart condition all on her own.” 

The record supports the district court’s determination that respondent is the primary caretaker.  The district court did not, therefore, abuse its discretion in making that determination.

Appellant further claims that the district court awarded custody of the children without regard to the other factors in Minn. Stat. § 518.17, subd. 1(a) (2004).  Although appellant does not cite the statutory factors that he claims support his assertions regarding respondent’s alleged inability to be a parent to the children, it appears that the essence of his claim is that the district court failed to make sufficient findings regarding “the capacity and disposition of the parties to give the child love, affection, and guidance” and “the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.”  Id., subd. 1(a)(10), (13). 

But the district court awarded respondent sole legal and physical custody of the children, making findings on virtually all of the factors in subdivision 1(a), including a finding that respondent “appear[s] to love [the] children” and has provided guidance by “arranging for the children’s schooling needs.”  See id., subd. 1(a)(10).  Moreover, subdivision 1(a)(13) is limited to cases in which there has been no finding of domestic abuse.  See id., subd. 1(a)(13) (stating that “except in cases in which a finding of domestic abuse . . . has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child”) (emphasis added).  Here, the district court found that there had been an incident of domestic abuse by appellant against respondent, and the record supports that finding. 

Appellant also claims that the district court failed to make findings on the additional factors listed in Minn. Stat. § 518.17, subd. 2 (2004), necessitated by appellant’s request for joint custody.  Subdivision 2 provides that “where either joint legal or joint physical custody is contemplated or sought,” district courts must consider the following additional factors:

(a)               the ability of parents to cooperate in the rearing of their children;

(b)              methods for resolving disputes . . . and the parents’ willingness to use those methods;

(c)              whether it would be detrimental . . . if one parent were to have sole authority over . . . upbringing; and

(d)              whether domestic abuse . . . has occurred between the parents.

 

Id. 

The district court made explicit findings on the required joint-custody factors, finding that “[t]he parties have been unable to communicate with each other”; that they have “had a long term acrimonious relationship”; that they have not “identified any methods they could use to resolve disagreements involving the children”; that “[i]t would not be detrimental to the children if only [respondent] is awarded sole authority over the children’s upbringing”; and that appellant “had committed acts of domestic abuse against [respondent].” 

Because the record supports the district court’s findings regarding the best interests of the children and the required joint-custody factors, the district court did not abuse its discretion by awarding respondent sole legal and physical custody of the children.

III.             Child Support

A district court has broad discretion in determining child support.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).  We will not set aside a district court’s findings regarding net income unless they are clearly erroneous.  State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).  And we review the record in the light most favorable to the district court’s findings.  Vangsness, 607 N.W.2d at 474. 

Appellant claims that the district court’s child-support “calculation does not add up and it failed to explain how it arrived [at] the figure for $436 a month.”  After determining a parent’s net income, a district court “shall derive a specific dollar amount for child support by multiplying the obligor’s net income by the percentage indicated [in] the . . . guidelines.”  Minn. Stat. § 518.551, subd. 5(b) (2004).  “If the court does not deviate from the guidelines, the court shall make written findings concerning the amount of the obligor’s income used as the basis for the guidelines calculation . . . .”  Id., subd. 5(i) (2004). 

When the district court finds that a parent is voluntarily unemployed or underemployed, “support shall be calculated based on a determination of imputed income.”  Id., subd. 5b(d) (2004).  Imputed income is “the estimated earning ability of a parent based on the parent’s prior earnings history, education, and job skills, and on availability of jobs within the community for an individual with the parent’s qualifications.”  Id. 

            The district court here did not deviate from the guidelines and ordered appellant to pay $436 per month in child support, finding that appellant works for Thomas Allen, Inc. at 15 hours per week at $11.79[1]per hour as a program counselor and nine hours per week at $7.33 per hour as a sleepover counselor.  The district court imputed income of an additional 16 hours per week at $7.33 per hour for a total $1,246 in net monthly income.  The district court also found that appellant’s monthly expenses are unknown and that his girlfriend helps support him. 

            Appellant claims that “[t]here is no evidence to show that [he] is voluntarily underemployed or that he has other sources(s) of income,” but admittedly does “not get into much discussion regarding this issue.”  A district court determines income on the basis of “documentation of earnings and income” submitted by the parties.  Id., subd. 5b(a) (2004).  The record evidence of appellant’s earnings and income consists of several pay stubs dated between the months of July and October 2003, only two of which appear to be among appellant’s exhibits, and an October 2003 letter from his employer, Thomas Allen, Inc. 

            While the district court’s findings regarding the income it imputed to appellant are slim, the limited evidence of appellant’s earnings and income in the record shows that in addition to working for Thomas Allen, Inc. for 15 hours per week at $11.74 per hour and nine hours per week at $7.33 per hour, appellant “picks up” additional hours with the company at $12.74 per hour as a temporary-service counselor.  And from this limited evidence, the district court imputed income to appellant of an additional 16 hours per week at $7.33 per hour. 

            We conclude that the district court did not abuse its discretion by imputing income to appellant.  Appellant does not allege that he is unable to work the additional 16 hours per week for which the district court imputed income to him.  The letter from appellant’s employer states that “[appellant’s] pay periods run biweekly” and, as noted above, that the work appellant “picks up” in addition to his regular work of 48 hours per two-week pay period, is paid “at the wage of $12.74 per hour.”  Finally, one of appellant’s pay stubs, dated August 29, 2003, shows that appellant worked 85 hours during that two-week pay period (42.5 hour per week).  Thus, the limited record before us shows that appellant has worked more than 16 additional hours per week at a pay rate greater than $7.33 per hour.  Under these circumstances, we cannot say that the district court abused its discretion by conservatively imputing income to appellant for 16 hours per week at a pay rate of $7.33 per hour.  See Putz, 645 N.W.2d at 347 (stating that a district court abuses its discretion only by reaching a decision “that is against logic and the facts on record”); see also Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985) (stating that “[t]his court will not engage in speculation” and will not hear a party’s complaints regarding child support when he has failed to provide an adequate record of his earnings and income).

Appellant also claims that because he “is a full-time student attempting to retrain for employment purposes,” the district court erred by imputing income.  In disputing imputed income, a parent must show that his “unemployment or 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.”  Minn. Stat. § 518.551, subd. 5b(d).  

The record does not show that appellant adequately raised this issue below, and the district court did not address it in its order.  In support of his claimed status as “full-time student,” appellant merely cites to a page in the hearing transcript reflecting respondent’s testimony that appellant sometimes attends classes.  Again, a party cannot complain about an unfavorable ruling when “that party failed to provide the district court with the evidence that would allow the district court to fully address the question.”  Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003), review denied (Minn. Nov. 25, 2003).  And as a general rule, we will not consider issues that were not presented to or decided by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 

Because the record supports the district court’s findings regarding appellant’s income and because the statutory guidelines support its calculations, the findings are not clearly erroneous, and the district court did not abuse its discretion by awarding respondent $436 per month in child support.

IV.       Spousal Maintenance

We review a district court’s maintenance award for an abuse of discretion.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  “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).  A district court abuses its discretion regarding maintenance if the record does not support the district court’s findings or if the law is improperly applied.  Dobrin, 569 N.W.2d at 202 & n.3 (citing Sefkow, 427 N.W.2d at 210).

 Appellant claims that in order “to survive, he must be paid a substantial spousal maintenance.”  Although the district court did not award spousal maintenance to either party here, appellant cites caselaw relating to the modification of maintenance, claiming that the district court failed to make adequate findings.

But a district court may grant maintenance to either spouse only if it finds that the spouse seeking maintenance (1) lacks sufficient property to provide for his reasonable needs, or (2) is unable to support himself through appropriate employment.  Minn. Stat. § 518.552, subd. 1 (2004).  And the district court here determined that no award of spousal maintenance is appropriate, finding that the net monthly incomes for appellant and respondent are $1,246 and $1,768, respectively; that appellant’s “girlfriend helps support him”; that the expenses of both parties are unknown; that “[b]oth parties are able to provide adequate self support without depending upon the other party”; that “[t]he parties are the owners of personal property, household goods and furnishings”; and that appellant otherwise owns “an automobile, computer and office equipment, a washer and dryer and a floor safe.” 

Because the record supports the district court’s findings regarding appellant’s income, property, and ability to support himself, the findings are not clearly erroneous, and the district court did not abuse its discretion by denying spousal maintenance to appellant.

V.        Property Division

A district court has broad discretion in dividing marital property, and we will not alter a district court’s marital-property distribution absent a clear abuse of discretion or an erroneous application of the law.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000); Ebnet v. Ebnet, 347 N.W.2d 840, 842 (Minn. App. 1984).  We will affirm the district court’s property division if it has “an acceptable basis in fact and principle.”  Antone v. Antone,645 N.W.2d 96, 100 (Minn. 2002).  And we defer to the district court’s credibility determinations.  Sefkow, 427 N.W.2d at 210.

Appellant claims that the district court’s “distribution of family assets and liabilities was improper and offended existing statutory guidelines” but cites no authority to support his claims.  See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (holding that a party generally waives review of an assignment of error in the party’s brief that is based on “mere assertion” and not supported by argument or authority). 

A district court “shall make a just and equitable division of the marital property . . . after making findings regarding the division of the property.”  Minn. Stat. § 518.58, subd. 1 (2004).  Generally, when the record shows that neither party is in greater financial need than the other, an equal distribution of the marital property is an equitable one.  Ellesmere v. Ellesmere, 359 N.W.2d 48, 51 (Minn. App. 1984); see also Thomas v. Thomas, 383 N.W.2d 727, 728 (Minn. App. 1986) (stating that the distribution need not be mathematically equal).  And we have upheld as fair and equitable a district court’s ruling “that each party be responsible for all indebtedness incurred by that party.”  Jones v. Jones, 402 N.W.2d 146, 149 (Minn. App. 1987).

The district court found that the parties owned personal property, household goods, and furnishings that had not yet been divided between them and that they owned two cars, a Pontiac and a Mercedes.  The district court also found that respondent has “minimal outstanding bills or obligations, including her [car] loan” and that because appellant “filed a Chapter 7 bankruptcy on July 27, 2000,” his claimed outstanding debts are “unclear.”  The district court also found his testimony and exhibits regarding those debts “not credible.”

The district court awarded the Pontiac to respondent and the Mercedes to appellant; awarded each party the household goods, furniture, appliances, and all other tangible property in their individual possession; and divided the other household items equally.  The district court ordered that appellant and respondent “shall each assume and pay all debts” that they have incurred since separation. 

Because the record supports the district court’s findings regarding the marital property and indebtedness of the parties and because we defer to the district court’s credibility determinations, the findings are not clearly erroneous, and the district court did not abuse its discretion in its division of the parties’ marital property and allocation of their indebtedness.

VI.       Other Matters

            The balance of appellant’s brief relates to his general claim that he “has been bruised, battered, and unjustly deprived [of] liberty, property and constitutionally protected rights to family integrity without due process and equal protection of the law.”  But we find appellant’s arguments obscure and his supporting authority, to the extent it exists, misplaced.  And generally, we may decline to reach issues “in the absence of adequate briefing.”  State by Special Comp. Fund v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997).  For that reason, we decline to reach appellant’s remaining arguments here.  

Finally, respondent requests an award of $1,500 for attorney fees on appeal because “[t]here is no basis to reverse or remand the trial court’s order and [a]ppellant has not presented any meritorious arguments in his brief.”  But a request for attorney fees on appeal must be made by separate motion, and respondent has not done so.  See Minn. R. Civ. App. P. 139.06, subd. 1 (requiring a separate motion to be filed along with sufficient documentation to calculate attorney fees).  We therefore deny respondent’s request for attorney fees.

            Affirmed.