A05-2347

In re the Marriage of:

Judy Marie Creen, petitioner,

Respondent,

vs.

Michael Thomas Creen,

Appellant.

Filed November 28, 2006

Affirmed

Willis, Judge

Chisago County District Court

File No. 13-F9-04-001357

James F. Schneider, Butts, Sandberg & Schneider, LLP, 155 South Lake Street, Forest Lake, MN 55025 (for respondent)

Michael T. Creen, OID #2134462, Prairie Correctional Facility AC43, P.O. Box 500, Appleton, MN 56208 (pro se appellant)

Charlene Larsen, P.O. Box 569, Anoka, MN 55303 (guardian ad litem)

Considered and decided by Ross, Presiding Judge; Willis, Judge; and Dietzen, 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 husband argues that the district court (1) lacked jurisdiction over the proceeding; (2) abused its discretion when it denied husband’s requests for an order compelling discovery by respondent wife; and (3) abused its discretion when it divided the parties’ property because it considered husband’s criminal record in the process and inequitably distributed the marital property. Because we conclude that the district court did not lack jurisdiction and did not abuse its discretion, we affirm.

FACTS

Respondent wife Judy Creen and appellant husband Michael Creen were married on October 21, 1978. They co-owned a home in Center City, Chisago County, until late 2004. Husband was incarcerated at the Minnesota Correctional Facility in Moose Lake from January 2004 until sometime after he filed this appeal. He is now at the Prairie Correctional Facility in Appleton. The parties’ four minor children live with wife. Wife accepted employment in June 2004 with the State of Wisconsin as a corrections officer. In July 2004, she moved the four minor children and some of the parties’ household possessions to a home she began renting in Wisconsin, but she continued to maintain the home in Chisago County. In August 2004, husband was served with a petition for dissolution, which was filed in Chisago County.

Husband, appearing pro se, sought dismissal of the case in October 2004 based on his allegation that wife was not a resident of Minnesota and did not reside in Chisago County at the time that she filed the petition for dissolution. Wife, in turn, moved for an order directing the sale of the parties’ home and directing that one-half of the proceeds be given to wife and the other half be held in trust pending an agreement between the parties or a court order. The district court determined, in a November 22, 2004 order, that the matter was appropriately venued in Chisago County. It also granted wife’s motion regarding the sale of the home and disposition of the proceeds and directed that wife make husband’s canoe, tractor, and picnic table available to him.

Husband filed two motions in January 2005. The first asked the district court to order that $5,000 of the proceeds of the sale of the parties’ home be released to husband to pay legal fees—husband had been unrepresented to that time—and $6,000 be released to husband’s brother for repayment of a Sallie Mae student loan that husband’s brother had cosigned for the benefit of the parties’ oldest child. Husband’s second motion asked the court to compel wife to respond to certain discovery requests made by husband. In a February 25, 2005 order, the district court agreed that husband was entitled to money for attorney fees to ensure adequate representation of his rights in the dissolution proceeding and ordered that $2,500 be paid directly to an attorney designated by husband but denied husband’s motion to compel discovery, finding that wife’s discovery responses were appropriate and complete.

The dissolution trial was held on June 17, 2005, and the district court entered judgment awarding wife the remaining net proceeds of the sale of the parties’ home, the money in her retirement account, and the family vehicle but also assigning to her all responsibility for the parties’ marital debt. Husband was awarded all of his personal, nonmarital property that remained in storage at the parties’ home. He appeals from the dissolution judgment.

D E C I S I O N

Husband objects to the district court’s “judicial jurisdiction” over the dissolution. It is unclear from his brief and from his motion below whether he objects to the district court’s exercise of jurisdiction, to venue, or to both. Wife argues both that the district court properly exercised jurisdiction over the matter and that Chisago County was a proper venue. We agree.

To the extent that husband argues that this matter was improperly venued in Chisago County, his argument fails. The relevant portion of Minn. Stat. § 518.09 (2004) provides: “A proceeding for dissolution or legal separation may be brought by either or both spouses and shall be commenced by personal service of the summons and petition venued in the county where either spouse resides.” And Minn. Stat. § 518.003, subd. 2 (2004), defines “residence” as “the place where a party has established a permanent home from which the party has no present intention of moving.” We review a district court’s determination of proper venue in a family-law case under an abuse-of-discretion standard. Toughill v. Toughill, 609 N.W.2d 634, 642 (Minn. App. 2000).

The district court treated husband’s motion to dismiss as an objection to venue and found Chisago County to be the appropriate venue for the dissolution matter because, at the time, the parties co-owned a home in Chisago County; wife maintained Chisago County as her permanent address, although she temporarily resided in Wisconsin; and husband’s permanent address remained in Chisago County, although he was temporarily incarcerated in Carlton County.

The record supports the district court’s determination that wife’s “permanent residence” at the time she filed the petition for dissolution was Chisago County. Even if husband were correct, and wife had established a permanent home in Wisconsin and had no present intent to move, husband’s residence for venue purposes remains Chisago County. His incarceration is temporary, and he does not claim that, at the time that this proceeding was commenced, he intended to reside in Carlton County permanently. Venue is proper where either spouse resides. Minn. Stat. § 518.09. The district court’s determination that Chisago County is the proper venue for this matter was not an abuse of discretion.

Because the district court’s denial of husband’s motion to dismiss was based on a determination of proper venue, the issue of whether the district court had statutory authority under Minn. Stat. § 518.07 (2004) to exercise jurisdiction over the dissolution proceeding was not considered by the district court and is therefore not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (noting reviewing courts generally do not consider matters not argued below). But even if we were to consider husband’s apparent objection to the district court’s exercise of jurisdiction on the ground that wife was not a resident of Minnesota at the time that she served the petition for dissolution, we would conclude that his argument is without merit. Minnesota courts may exercise jurisdiction in a dissolution proceeding under Minn. Stat. § 518.07 when “one of the parties has resided in this state . . . for not less than 180 days immediately preceding the commencement of the proceeding.” The district court determined that wife maintained her permanent residence in Minnesota, but even if husband were correct that wife was a resident of Wisconsin at the time she commenced the proceeding, the fact that husband resided in Minnesota at that time and for at least the preceding 180 days was sufficient to authorize the district court to exercise jurisdiction over the dissolution proceeding.

Husband cites Wyman v. Wyman, 297 Minn. 465, 212 N.W.2d 368 (1973), which dismissed a counterclaim for dissolution on the ground that the counterclaim plaintiff was not a resident of Minnesota. Wyman was decided in 1973 when the residency provision of the dissolution statute required that the petitioner be a resident of the state; the provision was amended in 1978 to authorize the exercise of jurisdiction if either of the parties is a resident of the state. See Minn. Stat. § 518.07; 1978 Minn. Laws, ch. 772, § 24, at 1070. Therefore, Wyman is inapposite. The district court properly exercised jurisdiction over the dissolution proceeding.

II.

Husband claims that the district court “deprived [him] of his rights to a fair trial” by not requiring wife to provide “any” discovery. “[T]he trial judge has wide discretion to issue discovery orders and, absent clear abuse of that discretion, normally its order with respect thereto will not be disturbed.” Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990). Husband’s claim that the district court denied him an opportunity to conduct discovery is unsupported by the record. Wife responded to discovery requests, although husband claims that her responses were inadequate. After reviewing husband’s requests and wife’s responses, the district court concluded that “the discovery responses provided by [wife] are appropriate and complete. [Wife] is not required to provide information or documentation not possessed by her.” The district court did not abuse its discretion by denying husband’s motion to compel discovery.

III.

Minn. Stat. § 518.58, subd. 1 (2004), provides:

Upon a dissolution of a marriage, . . . 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 marriages 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.

1. Reference to Husband’s Criminal Record

Husband argues that the district court improperly reviewed his criminal file when it divided the parties’ property, which biased the district court and violated the mandate of section 518.58 that the district court divide the marital property without regard to “marital misconduct.” “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), and an assignment of error “based on mere assertion” and not supported by argument or authority is waived “unless prejudicial error is obvious on mere inspection.” State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quoting Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519–20, 187 N.W.2d 133, 135 (1971)).

Aside from a misplaced reference to section 518.58, husband cites no authority for his argument that it was improper for the district court to refer to his criminal record in determining an equitable division of the parties’ martial property. The fact that husband is incarcerated bears directly on issues necessarily considered by the district court in the dissolution proceeding, including husband’s income, expenses, and ability to contribute to the support of his children. It was not an abuse of discretion for the district court to take note of facts relevant to its judgment, and husband provides no contrary authority.

2. Determination of Marital Debt

Debt apportionment is part of a property division. Berenberg v. Berenberg, 474 N.W.2d 843, 848 (Minn. App. 1991), review denied (Minn. Nov. 13, 1991). Debt accrued by either spouse or both after the marriage and before the valuation date established for purposes of the division of property is presumed to be marital debt. Minn. Stat. § 518.54, subd. 5 (2004). “The burden of establishing the nonmarital character of an asset acquired during the marriage is on the party claiming the asset as nonmarital.” Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn. App. 1989). Whether property is marital or nonmarital is a question of law, but we must defer to the district court’s underlying findings of fact unless those findings are clearly erroneous. Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).

Husband argues that the district court erred when it included certain bills that wife presented in its calculation of the parties’ marital debt. He claims that because four of the bills (Capital One, Frontier, Xcel Energy, and Providian Visa) were dated after his incarceration, they were incurred by wife and should be considered nonmarital debt. Wife testified at trial that these debts were incurred before husband’s incarceration, but because they were still outstanding, she continued to receive bills for their collection after husband’s incarceration. Husband also argues that because another of the bills wife presented (Bank One) reflects debt belonging to the parties’ adult daughter, the debt should be considered nonmarital. Wife testified that the Bank One card belonged to her and the parties’ adult daughter jointly. But this particular bill was paid before trial, and the debt was not included in the district court’s calculation. Husband’s objection is therefore immaterial.

Husband and wife testified inconsistently regarding whether the debt reflected in the other four bills was incurred before or after the parties’ separation. But even if some of the debt was incurred after husband’s incarceration, debt incurred before the valuation date is rebuttably presumed to be marital debt under Minn. Stat. § 518.54. Husband failed to successfully rebut that presumption. Further, it is well settled that judging the credibility of witnesses and the weight given to their testimony rests within the province of the fact-finder. Fontaine v. Hoffman, 359 N.W.2d 692, 694 (Minn. App. 1984). And this court has allowed debt to be shared by the parties when it was “reasonably incurred after separation to provide necessary support for the parties and their children.” Bliss v. Bliss, 493 N.W.2d 583, 587 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). Here, wife testified that the debt was incurred for “living expenses . . . for the kids,” items purchased at Wal-Mart, food, school expenses, a cell phone for one of the parties’ daughters, and utilities. The district court’s findings were not clearly erroneous—the record supports the district court’s determination that this debt was marital.

3. Division of Marital Property

“District courts have broad discretion over the division of marital property and appellate courts will not alter a district court’s property division absent a clear abuse of discretion or an erroneous application of the law.” Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn. App. 2005). A district court’s division of marital property need only be “just and equitable.” Minn. Stat. § 518.58, subd. 1. “Equitable division of marital property is not necessarily an equal division.” Crosby v. Crosby, 587 N.W.2d 292, 297 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). A division of property will be affirmed if it has “an acceptable basis in fact and principle” even if this court might have resolved the matter differently. Rohling v. Rohling, 379 N.W.2d 519, 522-23 (Minn. 1986) (quoting Bollenbach v. Bollenbach, 285 Minn. 418, 426-27, 175 N.W.2d 148, 154 (1970)). Nevertheless, a district court’s decisions regarding a division of marital property must be supported by findings setting out the court’s rationale. Dick v. Dick, 438 N.W.2d 435, 437 (Minn. App. 1989).

Husband argues that he should have received his “marital share” of the proceeds from the sale of the parties’ home and that, if he did, he could fulfill his child-support obligation and still have funds available to him upon his release from prison. Wife argues that the district court’s division of property was equitable and necessary to prevent undue hardship to wife.

The district court made findings regarding the parties’ income and expenses, findings that husband does not challenge on appeal, and determined that the parties had the following marital assets: $48,151.45 in proceeds from the sale of the parties’ home, half of which had already been disbursed to wife and $2,500 of the balance of which had been disbursed to husband to pay attorney fees, leaving $21,575.73 at the time of trial; various personal and household property; a 2002 Saturn automobile; and wife’s retirement account, valued at $1,800. The parties’ outstanding marital debt, according to the district court, consisted of credit-card bills and utility bills totaling $5,103.13; the Sallie Mae student loan in the amount of $5,669.42; and a loan for two family automobiles, one of which the parties had given as a gift to their adult daughter, in the amount of $10,753.36. The district court determined that the parties’ marital debt totaled $21,525.91.

The district court concluded that it was appropriate to award all of the marital assets—other than the $2,500 already paid to husband and certain items of husband’s personal property—to wife for the following reasons: (1) it also assigned wife responsibility for all marital debts, which equaled nearly all of the remaining proceeds from the sale of the home; (2) husband had paid no child support since July 2003 because of his incarceration; (3) husband would continue to be incarcerated for six more years, and wife would remain financially responsible for the parties’ minor children; (4) at trial, husband did not actually object to wife receiving the remaining proceeds; he simply objected to her receiving them in one lump sum and would have preferred to receive them himself and then pay child support to wife; and (5) husband’s contribution to the unreasonable length and expense of the litigation would have prompted the district court to award wife attorney fees, but instead, wife could choose to pay a portion of her attorney fees out of her award.

Although he argues that he should have received his “marital share” of the proceeds from the sale of the home, which he appears to believe is one-half of the proceeds, husband fails to acknowledge the likelihood that he would then have been assigned a “marital share” of the marital debt as well. Berenberg, 474 N.W.2d at 848 (stating that debt apportionment is treated as part of the property division). Husband also fails to address how he could meet a child-support obligation for six years—his minor children were 10, 12, 14, and 16 at the time of the dissolution judgment—and still have money remaining upon his release from prison, especially after paying his share of the marital debt.

The district court supported its property division with findings that set out its rationale, and those findings are supported by the record. An “equitable” division of marital property does not require an equal division, Crosby, 587 N.W.2d at 297, and the district court had “an acceptable basis in fact and principle” for its property division, Rohling, 379 N.W.2d at 522-23. There was no abuse of discretion.

Affirmed.