In re the Marriage of: John Henry Keenan, petitioner, Appellant, vs. Louise Lorene Keenan, Respondent. A05-2328, Court of Appeals Unpublished, August 29, 2006.

This opinion will be unpublished and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

A05-2328

In re the Marriage of:

John Henry Keenan, petitioner,

Appellant,

vs.

Louise Lorene Keenan,

Respondent.

Filed August 29, 2006

Affirmed

Kalitowski, Judge

Anoka County District Court

File No. F8-03-9222

Sharon K. Hills, Severson, Sheldon, Dougherty & Molenda, P.A., 7300 West 147th Street, Suite 600, Apple Valley, MN 55124 (for appellant)

Jill I. Frieders, O’Brien & Wolf, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN 55903-0968 (for respondent)

Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

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

KALITOWSKI, Judge

Appellant John Henry Keenan argues that the district court (1) abused its discretion by awarding him and respondent Louise Lorene Keenan joint physical custody of their children; (2) abused its discretion by ordering appellant to pay spousal maintenance of $600 per month; (3) erred by classifying a piece of rental property as marital property; and (4) abused its discretion by awarding respondent attorney fees and costs. We affirm.

D E C I S I O N

Appellant and respondent were married on August 24, 1985. The couple had three children. On December 1, 2003, appellant filed a petition for dissolution of the parties’ marriage and sought joint legal and sole physical custody of the children. In the documents supporting his petition, appellant claimed that respondent was rarely home and spent little or no time with the children. Respondent disagreed, claiming that appellant’s relationship with Lori Marchiniak strained her relationship with the children and that appellant was attempting to exclude her from the children’s lives.

The parties were referred to Anoka County for a custody assessment, which was completed by Marcia Young, a family court counselor. Respondent also obtained an independent custody evaluation from Dr. James Gilbertson, a licensed psychologist and marriage and family therapist. Both evaluators testified at trial. They found that all three children expressed a preference to live with appellant. And the evaluators both observed appellant’s failure to facilitate the children’s relationship with respondent. When the evaluators questioned the children about their parents, they noted that the children had only positive things to say about their father but only negative things to say about their mother. Dr. Gilbertson was particularly concerned about the contrast between the children’s feelings toward their parents, noting that it was “very unusual” for all of the children in one family to be so polarized toward one parent.

On October 6, 2005, the district court issued its order dissolving the parties’ marriage, awarding joint legal and physical custody, ordering appellant to pay spousal maintenance, finding that the parties’ rental property was marital property, and awarding respondent attorney fees. Regarding custody, the court found that appellant and Marchiniak “lied” to Young and Dr. Gilbertson about their relationship. The court found Dr. Gilbertson’s report and testimony to be credible and noted that “[t]his is one of the worst cases the Court has seen in terms of polarization.”

Appellant challenges both the district court’s fact findings supporting its custody decision and the custody decision itself. Appellant argues that the record does not support the court’s findings and that the district court abused its discretion in awarding the parties joint physical custody. We disagree.

1. Fact findings

Appellant argues that the district court’s findings on the custody issue were unsupported by the evidence. Specifically, appellant contends that the record does not support the district court’s findings that he and Marchiniak had a romantic relationship and that appellant caused alienation between respondent and the children. Because there was no motion for a new trial, our scope of review includes substantive legal issues properly raised at trial, whether the evidence sustains the findings of fact, and whether such findings sustain the conclusions of law and judgment. Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 308-11 (Minn. 2003) (determining that substantive legal issues were properly raised at trial); Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976) (stating that appellate courts limit review to whether the evidence supports the findings and the findings support the conclusions of law and judgment).

The district court classified appellant’s relationship with Marchiniak as a “romantic relationship.” Evidence at trial indicated that appellant and Marchiniak took one trip to Chicago together and took three other trips with their children but without either of their spouses and that appellant and Marchiniak wore matching gold bands. In addition, Marchiniak informed a custody evaluator that she had a healthy marriage when she and her husband had actually separated and begun dissolution proceedings. Furthermore, to the extent appellant testified that no romantic relationship existed, the district court expressly found that appellant “lied” about the relationship.

When, as here, the district court’s findings are based on credibility assessments of witnesses, we generally defer to the district court because it has seen and heard the witnesses and is in a better position than an appellate court to evaluate credibility. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). And we conclude that the circumstantial evidence in the record sustains the court’s finding that appellant and Marchiniak had a romantic relationship. See Baker v. Citizens State Bank of St. Louis Park, 349 N.W.2d 552, 558 (Minn. 1984) (stating that district courts may draw inferences from circumstantial evidence).

In addition, the record supports the district court’s findings that appellant intentionally interfered with the children’s relationship with respondent. Testimony at trial indicated that appellant made disparaging remarks about respondent in front of the children, made little effort to facilitate the children’s relationship with respondent, thought the children loved Marchiniak “as if she were their mother,” and thought that they probably loved her more than they loved respondent. Furthermore, appellant enrolled the children in numerous extracurricular activities near Marchiniak’s home, instead of near the parties’ residence.

2. Joint physical custody

Appellant argues that the court abused its discretion in awarding the parties joint physical custody. District courts make custody determinations based on the best interests of the child and balance the 13 factors enumerated in Minn. Stat. § 518.17, subd. 1 (2004). The law “leaves scant if any room for an appellate court to question the trial court’s balancing of best-interest considerations.” Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).

When parties seek joint physical custody, the district court is required to consider the parents’ ability to cooperate, their methods of resolving disputes, whether it would be detrimental to the child for one parent to have sole authority over the child’s upbringing, and whether domestic abuse has occurred between the parents. Minn. Stat. § 518.17, subd. 2 (2004). If a parent objects to joint physical custody, the district court “shall make detailed findings on each of the factors in this subdivision and explain how the factors led to its determination that joint custody would be in the best interests of the child.” Id.

Here, the district court made extensive findings applying the statutory factors, giving significant credence to Dr. Gilbertson’s conclusions as they related to the factors. The court acknowledged that all three children preferred to live with appellant and echoed Dr. Gilbertson’s concern about the “marked contrast” between the children’s feelings for their mother and for their father. The court found that sole physical custody in either parent would not further the best interests of the children because the children would likely rebel against respondent and because appellant refused to facilitate a relationship between the children and respondent. Thus, the court concluded that joint physical custody was in the best interests of the children.

Appellant argues that the district court improperly considered his relationship with Marchiniak. “The court shall not consider conduct of a proposed custodian that does not affect the custodian’s relationship to the child.” Minn. Stat. § 518.17, subd. 1(b). But Dr. Gilbertson expressly detailed the effect of appellant’s relationship on the children. Dr. Gilbertson explained that appellant’s dismissive attitude toward respondent, when coupled with his relationship or tendency to spend large amounts of time with Marchiniak, could have a harmful effect on the children because it contributed toward their alienation from respondent.

Appellant also contends that the district court abused its discretion by awarding joint physical custody because the record indicated that the parties were unable to cooperate. He argues that previous decisions of this court have disfavored awards of joint physical custody, particularly when there is evidence of the parties’ inability to cooperate, and have stated that joint custody is appropriate only in “exceptional cases.” See, e.g., Rosenfeld v. Rosenfeld,529 N.W.2d 724, 726 (Minn. App. 1995).

District courts have discretion to weigh the statutory factors and are not bound by a set formula as long as all statutory factors are considered. See Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn. 1990) (stating that “[s]ome statutory criteria will weigh more in one case and less in another”). Although the district court questioned whether the parties would be able to cooperate with regard to joint physical custody, the district court also found that the parties have a network of professionals to provide a safety net for resolving problems related to joint physical custody, which reflects that the district court gave substantial weight to the joint-custody factor at Minn. Stat. § 518.17, subd. 2(b), and determined that methods for dispute resolution are in place to address the problems related to parenting time. And in weighing the propriety of joint physical custody, the district court also gave significant weight to the finding that an award of sole physical custody to appellant would be detrimental to the children because such an award would eliminate any possibility of mending the children’s relationship with respondent. Minn. Stat. § 518.17, subd. 2(c). On this record, we conclude that the district court did not abuse its discretion by awarding the parties joint physical custody.

II.

Appellant argues that the district court abused its discretion by awarding respondent spousal maintenance of $600 per month. Specifically, appellant asserts that the amount of the award is inequitable and should be reduced to an amount within his ability to pay. We disagree.

A 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 the 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). In determining maintenance, the court must consider all relevant factors, including the financial resources of the party who seeks 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). No single statutory factor is dispositive in determining the amount and duration of spousal maintenance. Elwell v. Elwell, 372 N.W.2d 67, 69 (Minn. App. 1985). An award of spousal maintenance balances one party’s need against the other party’s financial condition. Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).

A district court has broad discretion in determining spousal maintenance, and this court will uphold a maintenance decision absent an abuse of that discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). An abuse of discretion 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).

Here, the district court determined that respondent was in need of spousal maintenance and considered each of the eight factors listed in Minn. Stat. § 518.522, subd. 2. Based on her net monthly income and reasonable expenses, the court calculated that respondent would suffer a monthly deficit of $1,109.73. And the court found that appellant would have a surplus of $300 per month. The court ordered appellant to pay permanent spousal maintenance of $600 per month, noting that “[t]hese parties should both be sharing in the short fall” and finding that appellant “has the ability to meet his own needs while meeting part of the needs of [respondent].” Appellant does not dispute the district court’s calculations and concedes that respondent is unable to meet her monthly expenses. But appellant challenges the amount of the maintenance award, arguing that it is inequitable because it exceeds his ability to pay. Thus, appellant contends that maintenance should be reduced from $600per month to $300 per month.

A resulting budgetary shortfall for one or both of the parties does not automatically render the award of spousal maintenance erroneous. See Ganyo v. Engen, 446 N.W.2d 683, 687 (Minn. App. 1989) (upholding spousal-maintenance award that resulted in shortfall for husband). Here, the district court reasoned that both parties should experience an equitable share of the shortfall. Because the district court relied on the proper statutory factors to determine the amount of spousal maintenance and its findings are supported by the record, we cannot conclude that the district court abused its discretion in awarding permanent spousal maintenance resulting in a shortfall to both parties.

III.

Appellant argues that the district court erred by classifying the parties’ rental property as marital property. We disagree.

Following the dissolution of a marriage, all marital property is subject to an equitable division between the former spouses. Minn. Stat. § 518.58, subd. 1 (2004). “Marital property” is property acquired by either spouse during a marriage. Minn. Stat. § 518.54, subd. 5 (2004). “Nonmarital property” is property acquired by one spouse either before the marriage, after the valuation date, in exchange for nonmarital property, or by gift, bequest, devise, or inheritance. Id., subd. 5(a)-(d). “A party seeking to establish the nonmarital character of an asset must do so by a preponderance of the evidence. In order to maintain its nonmarital character, nonmarital property must be kept separate from marital property or, if commingled, must be readily traceable.” Wopata v. Wopata, 498 N.W.2d 478, 484 (Minn. App. 1993) (citation omitted).

Whether an asset is marital or nonmarital property is a question of law, which this court reviews de novo. Gottsacker v. Gottsacker, 664 N.W.2d 848, 852 (Minn. 2003). But this court defers to the district court’s findings of fact unless they are clearly erroneous such that this court is “left with the definite and firm conviction that a mistake has been made.” Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997) (quotation omitted).

Here, the parties owned a double bungalow, which consisted of two separate living units that shared a common garage. One living unit (homestead) was the parties’ primary residence during their marriage and the other was a rental property. Appellant agreed that any equity in the homestead was marital, but claimed that some of the equity in the rental unit was nonmarital property. Appellant testified that he acquired the rental unit in 1981 from his grandmother on a contract for deed for $40,000. When asked if he recalled the balance of the contract at or about the time he was married, appellant testified, “Specifically, no. I would say about $31,000.”

Appellant argues that he is entitled to at least $9,000, representing his nonmarital interest in the property. But he failed to present any evidence substantiating his testimony thereby making it impossible for the district court to divide the property into marital and nonmarital portions. Appellant testified that he did not know the exact balance of his contract for deed at the time of his marriage, but that it was “about” $31,000. Appellant failed to introduce any documentation supporting that claim. On this record we conclude that the district court did not err by finding that appellant’s speculative testimony, absent corroborating documentary evidence, was insufficient to trace the property to a nonmarital source.

IV.

Appellant argues that the district court abused its discretion by awarding respondent attorney fees and costs. We disagree.

“Conduct-based fee awards are discretionary with the district court.” Sharp v. Bilbro, 614 N.W.2d 260, 264 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000). Under Minn. Stat. § 518.175, subd. 6(c)(3) (2004), a district court may award attorney fees against a party who wrongfully fails to comply with a parenting-time order. Additionally, Minn. Stat. § 518.14, subd. 1 (2004), permits a discretionary award of attorney fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding, regardless of ability to pay. The district court relied on both provisions to support the award of attorney fees here.

The district court’s temporary relief order stated, “Neither party shall vilify, disparage, harass, insult, or speak ill of the other party in front of the minor children; nor shall the parties allow third parties to do so.” The order also stated that the court could order the party violating its provisions to pay for the attorney fees of the other party. And the court found that appellant disparaged respondent in front of at least one of the children subsequent to that relief order, as was evidenced by an audiotape in which appellant made particularly offensive comments regarding respondent in the presence of the parties’ youngest child.

The district court not only had authority, through its temporary-relief order, to award attorney fees, it also put the parties on notice that it would do so if they violated the order’s provisions. Because the district court’s findings are adequate to support the award, and the record demonstrates that the findings are not clearly erroneous, we conclude that the district court did not abuse its discretion by awarding attorney fees to respondent.

Affirmed.