This opinion will be unpublished and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

A05-1702

 

In re the Marriage of:

 

Judy L. Bydzovsky, petitioner,

Respondent,

 

vs.

 

William V. Bydzovsky,

Appellant.

 

Filed August 8, 2006

Affirmed in part, reversed in part, and remanded

Kalitowski, Judge

 

Ramsey County District Court

File No. FX-03-2241

 

Judy L. Bydzovsky, 620 North Main Street, # 315, Stillwater, MN 55082 (pro se respondent)

 

Kay Nord Hunt, Marc A. Johannsen, Lommen, Nelson, Cole & Stageberg, P.A., 2000 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

In this dissolution appeal following the denial of motions for amended findings or a new trial, appellant-husband argues that the district court (1) erred in declining to enforce the terms of an unsigned draft marital-termination agreement; (2) abused its discretion in the amount of maintenance allocated to respondent-wife by understating her net monthly income and overstating both her monthly expenses and appellant’s ability to provide maintenance; (3) abused its discretion by allocating to respondent a disproportionate share of marital property; and (4) abused its discretion in ordering appellant to pay part of respondent’s attorney fees.   Because we conclude that the district court did not err in refusing to enforce the proposed marital-termination agreement, we affirm on that issue.  But because the district court made inadequate findings on respondent’s income and expenses and her spending of the proceeds from the parties’ refinancing of the homestead, we reverse and remand for the district court to reexamine issues of maintenance and property division.  Finally, we conclude that on this record, the district court abused its discretion in ordering appellant to pay a need-based part of respondent’s attorney fees.

D E C I S I O N

I.

            Appellant William Bydzovsky challenges the district court’s refusal to enforce a proposed, unsigned marital termination agreement that was drafted by respondent Judy Bydzovksy’s counsel when appellant was acting pro se.  Stipulations form a judicially favored means of simplifying and expediting litigation and are treated as binding contracts.  Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997).  But although the district court retains independent judgment to determine the propriety of a proposed stipulation, Rettke v. Rettke, 696 N.W.2d 846, 851 (Minn. App. 2005), “it cannot, by judicial fiat, impose conditions on the parties to which they did not stipulate and thereby deprive the parties of their ‘day in court.’”  Id. (quoting Toughill v. Toughill, 609 N.W.2d 634, 639 n.1 (Minn. App. 2000)).  Here, the record indicates that before trial, the parties were negotiating terms of a draft stipulation.  But the record also reflects that negotiations broke down, the parties never signed the agreement, and the district court refused to admit it at trial. 

            The district court properly found that the record contains insufficient evidence of the parties’ unequivocal assent to the terms of the proposed agreement.  See Angier v. Angier, 415 N.W.2d 53, 56 (Minn. App. 1987) (stating requirement for valid stipulation of “a meeting of minds on the essential terms of the agreement”) (quotation omitted).   Further, the proposed agreement lacked two of the four elements required for district court approval:  the parties’ recited agreement to the stipulation in open court and acknowledgment of understanding and approval of its terms.  See Toughill, 609 N.W.2d at 639 (stating four-factor test for determining whether parties properly entered into stipulation).  We thus conclude that the district court did not abuse its discretion in refusing to admit the terms of the proposed agreement into evidence and did not err in declining to use it as a basis for its findings, conclusions and judgment. 

            Appellant also argues that respondent should be estopped from challenging the proposed agreement because he relied on its terms in refinancing the homestead on terms unfavorable to him and favorable to respondent.  Respondent’s share of the refinancing proceeds ($52,000) exceeded appellant’s share ($25,417) by approximately $26,000.  But to the extent that respondent may have spent part of the refinancing funds on personal expenses not related to necessities, the proper remedy is, as discussed below, a remand to the district court to reevaluate the equitable allocation of marital property between the parties as it may have been affected by this expenditure of marital funds.  See Minn. Stat. § 518.58, subd. 1a (2004) (providing that court, on a showing that party has transferred or disposed of marital assets “except in the usual course of business or for the necessities of life,”  may impute value of asset and a fair return to party who transferred or disposed of asset). 

II.

Appellant challenges the district court’s allocation of $1,400 monthly permanent maintenance to respondent.  A district court may order maintenance in a dissolution proceeding when the evidence shows that the spouse seeking maintenance “lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage.”  Minn. Stat. § 518.552, subd. 1(a) (2004).  Maintenance is also appropriate if the court finds that the spouse “is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment.”  Minn. Stat. § 518.552, subd. 1(b) (2004).

The court must consider all relevant factors, including the financial resources of the party seeking maintenance and that party’s ability to meet needs independently, the standard of living during the marriage; the duration of the marriage; the age, physical and emotional condition of the party seeking maintenance; and the ability of the party from whom maintenance is sought to meet needs while also meeting the needs of the party seeking maintenance.  Minn. Stat. § 518.552, subd. 2 (2004).  This court will uphold a maintenance determination absent an abuse of the district court’s broad discretion, Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982), which occurs when the district court reaches a “conclusion that is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  The spouse seeking maintenance bears the burden to demonstrate a need for maintenance.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997). 

Appellant asserts that the district court abused its discretion by calculating a permanent maintenance award based on (1) the inclusion in his income of overtime work and income from appliance-selling out of his garage; and (2) a clearly erroneous determination of respondent’s income and expenses.

The district court found that in 2003, appellant’s gross income from Unisys was $56,463, including overtime pay of $8,645.  Because the record showed that appellant had a consistent previous history of receiving overtime pay, the district court did not abuse its discretion by including his overtime pay in its income calculation.  See Lynch  v. Lynch,  411 N.W.2d 263, 266 (Minn. App. 1987) (holding that bonuses providing a dependable source of income may properly be included in calculation of income in determining maintenance), review denied (Minn. Oct. 30, 1987).  And the district court was entitled to find respondent’s evidence credible that appellant was receiving additional income from selling appliances out of his garage.   See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that appellate court defers to district court’s credibility determinations).  Thus, we conclude that the district court’s findings on appellant’s income as a basis for determining his ability to pay maintenance were not clearly erroneous. 

But we conclude that the district court made insufficient findings concerning respondent’s need for maintenance because it failed to address the factual disputes regarding her reasonable and necessary personal and business expenses.  Specifically, respondent’s asserted monthly personal expenses of $3,450, which were adopted by the district court without comment, include $130 per month for personal care items, $250 per month for clothing and dry cleaning, and $201 per month for marina, health club, and home cleaning expenses.  Appellant challenged the reasonableness of these expenses, which exceeded his asserted monthly expenses by over $400, in light of the parties’ modest marital standard of living.  The district court did not address this issue.  In addition, the district court adopted without comment respondent’s asserted monthly expenses for her real estate business, including $245 for telephone and internet service, $22 for car washes, $150 for meals and entertainment, and $100 for office supplies.  Because the district court based its determination of respondent’s need for maintenance without addressing issues regarding the reasonableness of these expenses, we reverse and remand the issue of maintenance for further findings.  At its discretion, the district court may reopen the record to receive further evidence on these issues.

III.

            The district court in a dissolution must order “a just and equitable division of the marital property.”  Minn. Stat. § 518.58, subd. 1 (2004).  We review the district court’s division of marital property for abuse of discretion.  Gottsacker v. Gottsacker, 664 N.W.2d 848, 852 (Minn. 2003). 

            Appellant argues that the district court abused its discretion in dividing the marital property by failing to credit respondent with the $52,000 of funds she received from the refinancing of the parties’ homestead during the parties’ separation.  The district court found that only $10,259 remained of respondent’s share of the refinancing money, and the court did not add back into the marital estate the rest of the funds ($41,741) that she spent during the year-long period after the refinancing and before trial.

The proceeds of the homestead refinancing fall within the statutory definition of marital property.  See Minn. Stat. § 518.54, subd. 5 (2004) (defining marital property as property acquired during existence of marriage).  If the district court finds that a party has, without consent of the other party, transferred, encumbered, concealed, or disposed of marital property “except in the usual course of business or for the necessities of life,” the court may, in its division of marital property, impute the value of an asset to the party who transferred or disposed of the property.  Minn. Stat. § 518.58, subd. 1a.  The district court found that, except for the $10,259, respondent used all of the refinancing money for the necessities of life, debt payment, income generation, and asset preservation.  But the district court’s findings are inadequate in view of the evidence in the record concerning respondent’s spending during the separation, which indicates that respondent appears to have spent parts of the refinancing money for debt payment on items incurred other than in the course of business or for the necessities of life.  Therefore, we direct the court, on remand, to make more detailed findings on this issue and, if necessary, to adjust the allocation of marital property.  This determination, in turn, may affect the district court’s further order on maintenance.  See Minn. Stat. § 518.552, subd. 1(a) (stating criterion for awarding maintenance as whether spouse lacks sufficient property to meet reasonable needs). 

IV.

            Appellant contends the district court abused its discretion in awarding need-based attorney fees to respondent.  We agree.  A district court in a dissolution action is authorized to grant attorney fees when necessary for the good-faith assertion of a party’s rights on findings that the party seeking fees lacks the ability to pay and the party from whom fees are sought is capable of paying the fees.  Minn. Stat. § 518.14, subd. 1 (2004). 

Here, the district court ordered appellant to pay $10,000 of respondent’s attorney fees, based on respondent’s inability to pay the fees and appellant’s ability to pay this amount.  But the record shows that, after paying maintenance as ordered by the district court, appellant retains only $49 per month in income above his monthly expenses.  This amount is insufficient to support the district court’s finding that appellant has the capability of contributing to respondent’s attorney fees.  Thus, on this record, we conclude the district court abused its discretion in awarding need-based attorney fees.

Finally, based on our record, we reject appellant’s argument that respondent improperly submitted a brief pro se that was drafted by an attorney.  Although appellant suggests that respondent’s trial counsel drafted respondent’s brief, this court received express notification that trial counsel was not representing respondent in this appeal and pro se correspondence from respondent. 

Affirmed in part, reversed in part, and remanded.