In re the Marriage of: Marie Darst Roes, petitioner, Appellant, vs. George David Roes, Respondent. A04-2041, Court of Appeals Unpublished, August 23, 2005.

This opinion will be unpublished and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

A04-2041

In re the Marriage of:

Marie Darst Roes, petitioner,

Appellant,

vs.

George David Roes,

Respondent.

Filed August 23, 2005

Affirmed in part, reversed in part, and remanded

Lansing, Judge

Wright County District Court

File No. F5-04-37

John R. Hill, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN 55431 (for appellant)

Charles T. Agan, Charles T. Agan, P.A., 7301 Ohms Lane, Suite 325, Edina, MN 55439 (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Wright, Judge.

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

LANSING, Judge

In this appeal from judgment in a marital-dissolution proceeding, Marie Roes challenges the district court’s decisions on parenting time, child support, spousal maintenance, property division, and attorneys’ fees. George Roes, by notice of review, contests the court’s method for determining child support and dividing personal property. The record supports the district court’s findings on parenting time, child support, spousal maintenance, attorneys’ fees, and the division of the property classified as marital, and we affirm those determinations. But the district court’s findings do not adequately support the designation, as nonmarital property, of an IRA, a life-insurance policy, and a variable annuity. We therefore reverse and remand for further findings on these issues.

F A C T S

George and Marie Roes’s fourteen-year marriage was dissolved in a September 2004 dissolution judgment. At the time of the judgment, George Roes, fifty-two, had recently retired from his work as an attorney and Marie Roes, forty-nine, also an attorney, was working part-time as a testing coordinator for the Annandale School District.

The Roeses agreed to joint legal custody of their thirteen-year-old son and also agreed that Marie Roes would have sole physical custody, consistent with a parenting-time schedule. They submitted for trial the contested issues of parenting-time transportation, appointment of a parenting-time expeditor, child support, spousal maintenance, and property division.

In the order following the contested hearing, the district court divided the responsibilities for parenting-time transportation; provided for appointment of a parenting-time expeditor; allocated George Roes’s nonmarital property in substantial conformance with his accounting expert’s testimony; allowed each party to retain the personal property in his or her possession; denied spousal maintenance; set current child support at the maximum guidelines amount based on the imputation of income to George Roes, ordering that it be retroactive to the Roeses’ separation; divided the responsibilities for provision of the child’s medical coverage between the parents; and denied Marie Roes’s request for attorneys’ fees.

Marie Roes moved for amended findings or a new trial. After a hearing, the district court amended the judgment to correct a clerical error but denied the other requested relief. Marie Roes appeals, raising issues relating to (1) parenting time, (2) child support, (3) spousal maintenance, (4) marital property, and (5) attorneys’ fees. George Roes has filed a notice of review on issues of child support and the division of personal property.

D E C I S I O N

Marie Roes challenges the district court’s order that requires her to share in parenting-time transportation and provides for the appointment of a parenting-time expeditor. We will not alter a district court’s parenting-time decision absent an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). The district court’s statutory charge on parenting-time issues, which includes transportation, is to “grant such parenting time . . . as will enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child.” Minn. Stat. § 518.175, subd. 1(a) (2004).

Marie Roes argues that George Roes should be responsible for all parenting-time transportation because he is retired and his move from Annandale to Maple Grove, a distance of about forty miles, increased the length of transportation. We conclude for two reasons that the district court did not abuse its discretion. First, Marie Roes does not contend that the decision is adverse to the child’s best interests. Second, the record demonstrates that she is capable of providing transportation because she is employed part-time, has an adequate vehicle for transporting the child, and does not have physical limitations that would affect her ability to share in the parenting-time transportation.

The district court may appoint a parenting-time expeditor to resolve disputes that arise under a parenting-time order. Minn. Stat. § 518.1751, subd. 1 (2004). We review the district court’s decision on whether to appoint a parenting-time expeditor under an abuse-of-discretion standard. Nolte v. Mehrens, 648 N.W.2d 727, 731-32 (Minn. App. 2002).

Marie Roes challenges the district court’s order that provides for a parenting-time expeditor to resolve future parenting-time disputes. She argues that, because Minnesota law does not authorize a parenting-time expeditor to modify a parenting-time schedule, the Roeses’ goal of not returning to court would be better served by providing for mediation.

The district court, however, did not abuse its discretion for two reasons. First, not all parenting-time disputes will require modification of a parenting-time order. See Minn. Stat. § 518.1751, subd. 1b(a) (2004) (“The purpose of a parenting-time expeditor is to resolve parenting time disputes by enforcing, interpreting, clarifying, and addressing circumstances not specifically addressed by an existing parenting-time order. . . .”). Second, the appointment of a parenting-time expeditor does not preclude mediation. See Minn. R. Gen. Pract. 114.02(a)(7), 310.01 (stating that family disputes are generally subject to alternative dispute resolution, which includes mediation).

Marie Roes raises two issues relating to child support: (1) the requirement that she help provide medical insurance and (2) the district court’s failure to order George Roes to provide life insurance to secure his child-support obligation. George Roes also raises two issues in his petition for review that relate to child support: (1) the imputation of income to him in the determination of child support and (2) retroactivity.

The district court imputed income to George Roes for purposes of determining child support. The court based the income imputation on findings that George Roes was voluntarily limiting his income and that he was capable of earning “substantially in excess” of the statutory maximum net monthly income that establishes the level of guidelines child support. See Minn. Stat. § 518.551, subd. 5(b) (2004) (providing formula for calculating guideline child-support amount).

Support “shall” be set based on imputed income if the child-support obligor is voluntarily unemployed or underemployed. Minn. Stat. § 518.551, subd. 5b(d); see also Minn. Stat. § 645.44, subd. 16 (2004) (“‘Shall’ is mandatory.”). Imputed income is a parent’s estimated earning ability, based on that 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.” Minn. Stat. § 518.551, subd. 5b(d). Imputing income to a child-support obligor is consistent with Minnesota’s policy of assuring adequate and timely parental support for children. Putz v. Putz, 645 N.W.2d 343, 352 (Minn. 2002).

To impute income based on voluntary underemployment requires the court to find that the obligor has a choice in the employment. Murphy v. Murphy, 574 N.W.2d 77, 82 (Minn. App. 1998). George Roes claims that he was reducing his workload for several years before his retirement and that, even if he were to return to work, it would take a significant time for his practice to generate income at its previous level. But the Roeses’ tax returns from 1999-2002 show yearly wage and salary income of more than $160,000, which was mostly attributable to George Roes’s income. This figure reflects a net monthly income substantially exceeding that necessary for imposition of the maximum guidelines child-support amount underMinn. Stat. § 518.551, subd. 5(b). Other than his wish to retire, which no one suggests to be motivated by bad faith, the record provides no evidence of a restriction on his ability to practice law. Thus, the district court did not err in imputing income to him at the maximum guidelines amount.

George Roes also challenges the district court’s grant of retroactive support, claiming that he provided payments in the nature of child support by sharing with Marie Roes his proceeds from the sale of a commercial building in 2003 and that year’s income from his law-office files. We review a district court’s order for retroactive support for abuse of discretion. Korf v. Korf,553 N.W.2d 706, 708-11 (Minn. App. 1996).

We conclude that the district court did not abuse its discretion in ordering retroactive support because the building sale proceeds paid to Marie Roes were in the nature of property division and because the record supports the district court’s finding that the income from George Roes’s law-office files was too sporadic to be counted for child-support purposes. See Haasken v. Haasken, 396 N.W.2d 253, 261 (Minn. App. 1986) (affirming district court’s exclusion of bonuses as income for child-support purposes because they were not guaranteed income source).

Marie Roes asserts an abuse of discretion in providing for the child’s medical support, arguing that George Roes should be responsible for medical-insurance premium payments. See Casper v. Casper, 593 N.W.2d 709, 714 (Minn. App. 1999) (applying abuse-of-discretion standard for medical-support orders). But the judgment followed the statutory requirements for medical-support orders, and Marie Roes does not explain how a judgment comporting with the statute can be an abuse of the district court’s discretion. See Minn. Stat. § 518.171, subd. 1(a)(1), (2) (2004) (requiring district court to assign responsibility for medical insurance for minor child and mandating that party with better health and dental insurance name minor child as beneficiary).

Marie Roes also challenges the district court’s failure to order life-insurance coverage to secure the child-support obligation. But she did not raise this issue until the motion for amended findings or a new trial, and an issue first raised in posttrial motions is untimely. Grigsby v. Grigsby, 648 N.W.2d 716, 726 (Minn. App. 2002), review denied (Minn. Oct. 15, 2002). We therefore do not consider it on appeal.

III

Marie Roes raises two issues on spousal maintenance: the adequacy of the district court’s findings and the propriety of imputing income to her without a finding of bad faith. To reverse the district court’s determination on spousal maintenance to Marie Roes, we must conclude that the district court abused its discretion by resolving the issue in a manner “that is against logic and the facts on record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). To determine whether findings are clearly erroneous, we view the record in the light most favorable to the district court’s findings and defer to the district court’s credibility determinations. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).

A district court may order maintenance if a party lacks sufficient property, including marital property apportioned in the dissolution, to provide for the party’s reasonable needs or if a party is unable to provide self-support through adequate employment. Minn. Stat. § 518.552, subd. 1(a), (b) (2004). In making this determination, the district court must consider “all relevant factors,” including available financial resources, the probability of self-support, the contributions of each party to marital property, marital property apportioned to the spouse requesting maintenance, the standard of living established during the marriage, the duration of the marriage, and the proposed obligor’s ability to meet his or her needs. Minn. Stat. § 518.552, subd. 2 (a)-(h) (2004).

Although a district court’s findings must be sufficiently detailed to demonstrate consideration of all statutory factors, Stich v. Stich¸ 435 N.W.2d 52, 53 (Minn. 1989), “[f]indings are not required on each [maintenance] factor considered.” Justis v. Justis, 384 N.W.2d 885, 891 (Minn. App. 1986), review denied (Minn. May 29, 1986). Marie Roes asserts that the district court made only four maintenance-related findings: her income, their respective living expenses, their respective earning capabilities, and the voluntary limitation of income. But the district court also found that the Roeses received “a substantial portion of marital property, each in excess of $1,200,000.00,” that Marie Roes did not lack sufficient property to provide for her reasonable needs based on the standard of living during the marriage, and that she was able to provide adequate self-support. These findings sufficiently indicate the district court’s consideration of the relevant statutory factors.

We also reject Marie Roes’s argument that the district court erred by imputing income to her based on underemployment without a finding of bad faith. The court did not impute a specific amount of income to her but only stated that she was capable of self-support, considering the marital standard of living and “all other relevant circumstances,” including her receipt of a substantial amount of marital property. We agree that imputation of income is a method of establishing the capacity for self-support, but it is not the only basis on which a district court can find that a party has the ability to meet needs independently. See Schallinger v. Schallinger, 699 N.W.2d 15, 22 (Minn. App. 2005) (affirming denial of maintenance when district court did not impute specific amount of income to proposed obligee but referred to her ability to become self-supporting).

The district court based its denial of spousal maintenance on its findings that Marie Roes had a gross monthly income of $1,000 with reasonable monthly expenses of $4,700 and that she was receiving marital property worth more than $1,200,000. On these findings, the court reasonably determined thatthe investment of her allocation of marital assets, together with her employment, could produce income sufficient to meet her reasonable monthly expenses, establishing her ability for self-support. See Hecker v. Hecker, 568 N.W.2d 705, 710 (Minn. 1997) (affirming maintenance determination that represents difference between maintenance obligee’s demonstrated needs and investment and attributed income); see also Robert v. Zygmunt, 652 N.W.2d 537, 545 (Minn. App. 2002) (affirming denial of maintenance when proposed obligee’s combined investment and employment income would be sufficient to meet monthly expenses), review denied (Minn. Dec. 30, 2002).

The district court has broad discretion in the division of marital property and will be reversed on appeal only if it abused that discretion. Gottsacker v. Gottsacker, 664 N.W.2d 848, 852 (Minn. 2003). We exercise independent review on the determination of whether property is marital or nonmarital. Id.

All property acquired by either spouse during the marriage is presumptively marital. Minn. Stat. § 518.54, subd. 5 (2004). To overcome this presumption, a party must demonstrate, by a preponderance of the evidence, the property’s nonmarital character. Id.; Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997). Nonmarital property includes: a gift, bequest, devise, or inheritance to one but not both parties; property acquired before the marriage; property acquired after the valuation date or excluded by a valid antenuptial contract; and property that is acquired in exchange for, or is the increase in value of, nonmarital property. Minn. Stat. § 518.54, subd. 5 (a)-(e).

To retain its nonmarital character during a marriage, property must either be kept separate from marital property or be readily traceable to a nonmarital asset. Olsen, 562 N.W.2d at 800. But strict tracing is not required. Doering v. Doering, 385 N.W.2d 387, 390 (Minn. App. 1986). And a district court can designate property as part marital and part nonmarital. White v. White, 521 N.W.2d 874, 878 (Minn. App. 1994).

Marie Roes challenges the portions of the judgment designating George Roes’s nonmarital interest in ten assets: a parcel of vacant land in Sebeka, Minnesota; a commercial building; a UBS Financial account; IRAs with ING, Fidelity, Thrivent, and UBS; a Thrivent variable annuity; a Lutheran Brotherhood life-insurance policy; and George Roes’s law practice. She withdrew the issue of a nonmarital designation of the homestead at oral argument. The district court found that George Roes had established a nonmarital interest in these assets consistent with his accounting expert’s testimony; in its amended judgment, the district court specifically found that the expert was credible and his analysis accurate.

The record supports the district court’s decisions on George Roes’s nonmarital interest in the Sebeka land; the UBS Financial account; and the ING, Fidelity, and Thrivent IRAs. George Roes testified that he purchased the Sebeka land with nonmarital funds shortly after the marriage. Because strict tracing is not required and because no evidence supported a contribution to the purchase by Marie Roes, we conclude that George Roes adequately traced his nonmarital claim to the property. Similarly, statements from George Roes’s nonmarital investment accounts sufficiently trace his nonmarital interest in the UBS Financial account. The turnover of bonds in these accounts did not produce marital appreciation but only a return of capital, which remained nonmarital. And the record shows that the nonmarital portion of a Security State Bank account that George Roes opened before the marriage contained enough funds to establish the ING and Fidelity IRAs in 1993, as well as to contribute to the Thrivent annuity IRA in 1998. Thus, we affirm the portions of the judgment dealing with these assets.

But we reverse and remand for further findings on the determination of George Roes’s nonmarital interest in the UBS IRA, the Lutheran Brotherhood life-insurance policy, and the Thrivent variable annuity. George Roes alleges, and the district court found, a $49,600 nonmarital component to the UBS IRA, representing an appreciation of the amount transferred from the Security State Bank account to open the IRA in 2003. But the record shows marital contributions of approximately $54,000 to the Security State Bank account from 1993-1998 and that, after fully funding the other IRAs, the remaining nonmarital portion of the Security State Bank account lacked sufficient funds to support the calculation of an appreciated amount of $49,600 transferred to the UBS IRA.

The district court also found that the Lutheran Brotherhood life-insurance policy and the Thrivent variable annuity were entirely nonmarital, consistent with George Roes’s testimony. But the record shows a $3,500 premium payment for the Lutheran Brotherhood policy, which George Roes did not attempt to trace to a nonmarital source. And although the record supports his testimony that the Thrivent variable annuity received a transfer from that policy, account statements show that the annuity was issued four years before the transfer. Further, the record contains a $5,000 check from the Roeses’ joint account made out to “Lutheran Brotherhood [now Thrivent] Variable Annuity,” marked for the child’s education and dated two days before the annuity issue date.

Although we reject Marie Roes’s challenge to George Roes’s expert’s calculation of the nonmarital portion of the commercial building, we note a mathematical error in the judgment. George Roes’s expert properly calculated a nonmarital interest in the building under the Schmitz formula, using information from Marie Roes’s prehearing statement. See Antone v. Antone, 645 N.W.2d 96, 102 (Minn. 2002) (stating formula for calculating nonmarital interest as proportion net equity at time of marriage bore to value of property at that time, multiplied by value of property at time of separation). And the expert testified that the fact that George Roes owned only one-half of the building at the time of the marriage did not affect the calculation of his nonmarital interest. Therefore, to the extent that the judgment reduced the value of his interest by one-half, the district court clearly erred, and we remand for further findings.

George Roes testified that, although he had retired from active legal practice, he was still receiving income under agreements with other attorneys to whom he had referred work. The district court had discretion to find, as it did, that “[t]he gross value of these files [was] included in the asset summary and split between the parties.” See Stageberg v. Stageberg, 695 N.W.2d 609, 615 (Minn. App. 2005) (treating portion of attorneys’ contingent fee attributable to work done before valuation date as marital property), review denied (Minn. July 19, 2005). But because the asset-summary portion of the judgment designated the law practice exclusively as George Roes’s nonmarital property, the court’s findings are inconsistent, and we remand for clarification. On remand, if necessary, the district court may receive additional evidence.

We affirm, however, the district court’s division of personal property. The court adopted George Roes’s proposed findings and conclusions on this issue and declined to revisit it at the posttrial hearing. The failure to address specifically the Roeses’ frequent-flyer miles and GM credits does not signify the exclusion of this property from the language in the judgment allocating the Roeses’ personal property to each person who possesses that property.

Finally, Marie Roes challenges the district court’s denial of her request for attorneys’ fees. A district court in a dissolution action “shall” grant attorneys’ fees when necessary for the good-faith assertion of a party’s rights if the party seeking fees lacks the ability to pay the fees and the party from whom the fees are sought is capable of payment. Minn. Stat. § 518.14, subd. 1 (2004). The district court may also order attorneys’ fees if a party unreasonably contributes to the length or expense of the proceeding. Id. We review a determination on attorneys’ fees for abuse of discretion. Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999).

The district court denied attorneys’ fees based on its findings that both Marie and George Roes were able to pay their own fees and that neither had delayed the dissolution process or unreasonably contributed to its cost. The record supports this determination.

Affirmed in part, reversed in part, and remanded.