STATE OF MINNESOTA

IN COURT OF APPEALS

A06-591

In re the Marriage of:

Karen Marie Bettermann, petitioner,

Appellant,

vs.

Randy Lee Bettermann,

Respondent.

Filed April 24, 2007

Affirmed

Ross, Judge

Dakota County District Court

File No. F3-04-13542

Sally K. Mortenson, 2500 West County Road 42, Suite 160, Burnsville, MN 55337 (for appellant)

Julie K. Seymour, 108 Professional Plaza, 1601 East Highway 13, Burnsville, MN 55337 (for respondent)

Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Ross, Judge.

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

ROSS, Judge

On appeal from a marital-dissolution judgment, Karen Bettermann argues that the district court understated Randy Bettermann’s income and abused its discretion by denying her request for spousal maintenance and by awarding Randy Bettermann the entire value of the business he operates. By notice of review, Randy Bettermann challenges the district court’s decision to amend its division of a mortgage-escrow refund and to deny his request for attorney fees. Because the district court acted within its discretion in determining Randy Bettermann’s income, denying spousal maintenance, dividing marital property, and denying attorney fees, we affirm.

FACTS

In May 2004 Karen Bettermann petitioned to dissolve her marriage to Randy Bettermann. The Bettermanns had been married for nearly sixteen years and have two minor children. Central to this appeal are the district court’s determinations on income, spousal maintenance, property division, and attorney fees.

Following a contested hearing, the district court determined in April 2005 that the Bettermanns would have joint legal custody of their children while Karen Bettermann would have sole physical custody. The court specified that a portion of the child-support arrears Randy Bettermann owed would be deducted from his allotted share of a $2,688 mortgage-escrow refund the Bettermanns received when refinancing their marital home. The district court reserved several issues for further review, including child support, spousal maintenance, division of the escrow refund, and attorneys’ fees. The court also directed Randy Bettermann, who owned a construction company, to have his accountant prepare a balance sheet for his business. The court specified which categories of items would be considered assets and liabilities, and it stated how the value of the business would be calculated.

The district court accepted posttrial submissions from the parties and, in September 2005, made supplemental findings to address the reserved issues. The court found that Karen Bettermann’s net monthly income was about $1,657, and Randy Bettermann’s was about $844. At the time of the hearing Karen Bettermann was employed full-time as a customer-service representative, earning $11.75 an hour. Randy Bettermann was self-employed as a siding contractor and the sole owner of the construction company. The court awarded the mortgage-escrow refund and business to Randy Bettermann. The court denied Karen Bettermann’s request for temporary spousal maintenance and ordered both parties to pay their own attorney fees. After denying her maintenance request, the district court expressly divested itself of jurisdiction on the issue of maintenance.

Karen Bettermann moved for amended findings or a new trial, and the district court amended several of its findings. The court directed the parties to divide the mortgage-escrow refund equally, and it also acknowledged that its earlier judgment had erroneously excluded Randy Bettermann’s child-support arrears in dividing the escrow refund. The court therefore deducted $1,027 from his share of the refund.

The court declined to amend its determination of Randy Bettermann’s income, denial of maintenance, and division of the construction company. On appeal, Karen Bettermann argues that the court erred by not amending these findings. By notice of review, Randy Bettermann challenges the district court’s division of the refund and its denial of his request for attorney fees.

D E C I S I O N

A parent’s child-support obligation depends on the parent’s income and the number of children being supported. Minn. Stat. § 518.551, subd. 5(b) (2004). When an obligor is self-employed, income is generally defined as gross receipts minus ordinary and necessary expenses. Id., subd. 5b(f) (2004). The district court found that Randy Bettermann’s net monthly income is about $844. Karen Bettermann asserts that the district court understated Randy Bettermann’s income, which resulted in a lower child-support obligation. We review the district court’s income determination for clear error. Schallinger v. Schallinger, 699 N.W.2d 15, 23 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005).

This court has recognized that self-employed obligors have the opportunity to understate their income, and it has approved alternative methods to calculate income. See Coady v. Jurek, 366 N.W.2d 715, 718 (Minn. App. 1985) (noting that district court may consider cash flow to determine obligor’s income), review denied (Minn. June 27, 1985); Ferguson v. Ferguson, 357 N.W.2d 104, 108 (Minn. App. 1984) (“[T]he opportunity for a self-employed person to support himself yet report a negligible net income is too well known to require exposition.”) Karen Bettermann argues that the district court should have considered deposits into Randy Bettermann’s bank account, his lifestyle, and his income from previous years. She estimated that his net monthly income is about $3,175. But the district court resorts to alternative methods to determine a self-employed person’s income in cases in which it finds that the obligor’s reported income does not reflect his actual income. See Johnson v. Fritz, 406 N.W.2d 614, 616 (Minn. App. 1987) (stating that court can consider obligor’s lifestyle if evidence suggests it is inconsistent with reported income and expenses). The district court credited Randy Bettermann’s testimony and evidence of his income. The district court has broad discretion to determine the income of a self-employed person, and whether the court believes a party has a higher income than claimed is similar to a credibility finding, to which this court defers. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that appellate court defers to district court’s credibility determinations); Ferguson, 357 N.W.2d at 108 (discussing district court’s discretion to determine income of self-employed obligor).

The district court’s determination of Randy Bettermann’s income is supported by the record and not clearly erroneous. Karen Bettermann asserts that the district court did not consider evidence that Randy Bettermann has a higher income. But nothing suggests that the district court ignored her arguments. On the contrary, the court appears to have considered but rejected her arguments. The court reduced Randy Bettermann’s claimed living expenses, recognizing that his business pays some of those expenses. And the court heard testimony by Randy Bettermann regarding his income. He testified that his business had declined in the preceding years, and he submitted personal and business tax returns covering several years. See Minn. Stat. § 518.551, subd. 5b(a) (2004) (listing permissible documentation of income). His personal 2004 W-2 reflected a gross yearly income of about $14,212. He testified that he did not receive any other income. He explained other documents that suggested a higher income, admitting he had lied on one when he attempted to refinance his home and stating that another exhibit Karen Bettermann presented consisted of notes he made while merely speculating and calculating how much he would need to earn to retain his home and “stay above water.” He also testified that he was not able to afford his living expenses and that he had sold some property, obtained a loan, and relied on credit-card checks to himself to meet his expenses. Karen Betterman has cited contrary evidence, which, if credited, would seem to provide reasonable and adequate support for the finding that she urges. But the district court believed Randy Bettermann’s statements and, not having the district court’s vantage point, we will not reassess credibility on appeal. Although a different factfinder might have reasonably reached a different conclusion on this highly contested issue, sufficient evidence supports the district court’s finding, and its determination of Randy Bettermann’s income is not clearly erroneous.

We next consider Karen Bettermann’s challenge to the district court’s denial of her request for spousal maintenance. A court may order spousal maintenance if the spouse requesting maintenance lacks sufficient property to provide for his or her reasonable needs or cannot provide self-support. Minn. Stat. § 518.552, subd. 1 (2004). In determining whether spousal maintenance is appropriate, the district court should consider “all relevant factors,” including the financial resources of the parties. Id., subd. 2(a), (g) (2004). The main consideration is the balance of the financial needs and resources of the spouse seeking maintenance against the financial condition of the party from whom maintenance is sought. Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982). The district court has broad discretion to order spousal maintenance, and we will not reverse its decision absent an abuse of discretion. Schallinger, 699 N.W.2d at 22.

Karen Bettermann’s challenge regarding spousal maintenance relies primarily on her argument that Randy Bettermann’s income is higher than the district court found. Because the district court’s income finding is not clearly erroneous, the court did not abuse its discretion by denying her maintenance request. The court found that Karen Bettermann’s net monthly income is $1,657 and her monthly living expenses are about $2,291. Although she states on appeal that the district court’s finding discounted her claimed living expenses of $2,628 without an explanation, the court expressly found that her claimed expenses included “optional and unreasonable expenses” and listed the deducted expense categories. Karen Bettermann testified that she does not expect her financial situation to change because she foresees staying at her current job until her youngest child turns eighteen in November 2012. She would like to receive maintenance until that time. The court found that Randy Bettermann has a monthly income of $844 and living expenses of $1,370. Each party has a monthly deficit, $634 for Karen Bettermann and $526 for Randy Bettermann. Both parties would benefit from additional monthly income, but, based on the district court’s factual findings, it does not appear that Randy Bettermann has the means to provide maintenance. The record supports the district court’s finding that Karen Bettermann is not entitled to spousal maintenance.

Karen Bettermann also argues that the district court erred by failing to reserve jurisdiction so she may later move for maintenance. The district court has discretion to reserve jurisdiction on maintenance. Minn. Stat. § 518.55, subd. 1 (2004); see also Eckert v. Eckert, 299 Minn. 120, 126-27, 216 N.W.2d 837, 841 (1974) (holding that, unless reserved, court is without jurisdiction to later address maintenance when maintenance was not initially awarded). Reserving jurisdiction is appropriate when either party’s ability to be self-sufficient is uncertain. See Wopata v. Wopata, 498 N.W.2d 478, 485-86 (Minn. App. 1993) (holding that reservation was appropriate when spouse’s future health was uncertain); Barrett v. Barrett, 394 N.W.2d 274, 277 (Minn. App. 1986) (modifying district court order to reserve maintenance because of unusual disparity in parties’ income and foreseeable future changes in spouse’s ability to pay maintenance). We find no abuse of discretion in the district court’s decision not to reserve jurisdiction. Neither party’s testimony suggested that his or her financial situation would change in the future; both intended to continue their current employment and are in good health. The district court’s divestiture is limited to the issue of spousal maintenance. Should either party’s income substantially change in the future, the other is not precluded from moving to modify Randy Bettermann’s child-support obligation based on changed circumstances.

III

Both of the Bettermanns challenge portions of the district court’s property division. Karen Bettermann challenges the division of the construction company, and Randy Bettermann challenges the division of the mortgage-escrow refund. When dividing property after the dissolution of a marriage, the district court “shall make a just and equitable division of the marital property.” Minn. Stat. § 518.58, subd. 1 (2004). The district court may consider many factors when dividing marital property, including the length of the marriage, sources of income, and each party’s contribution in preserving the marital property. Id.; Sirek v. Sirek, 693 N.W.2d 896, 898-99 (Minn. App. 2005). The district court has broad discretion in its division of marital property. We will not reverse the district court’s property division if it has an acceptable basis in fact. Sirek, 693 N.W.2d at 898.

Karen Bettermann challenges the district court’s decision to give the entire construction company to Randy Bettermann, arguing first that the district court improperly vacated a conclusion of law in its April 2005 judgment and second that the distribution is inequitable. The record does not support these assertions.

The court did not vacate any of its earlier conclusions and its decision is not an abuse of discretion. In its April 2005 order, the court stated that “[t]he value of the business for purposes of this dissolution shall be the equipment and assets . . . less the liabilities . . . . If the parties are unable to reach an agreement concerning disposition of the business and division of any equity or liabilities, either party may bring a motion to determine this issue.” In compliance with the order, Randy Bettermann’s accountant prepared a balance sheet for the business. The parties could not agree on disposition of the business. In its supplemental findings, the court found that “[t]he business only has value because of the work [Randy Bettermann] does. If [he] were to quit working, the business would lose all its value. The entire business and its value should be awarded to [Randy Bettermann].” Both parties point out that the district court did not repeat the disposition of the company in its conclusions of law. But erroneously designating a conclusion of law as a factual finding is not prejudicial if the underlying finding and conclusion are supported by the record. See Graphic Arts Educ. Found. v. State, 240 Minn. 143, 145–46, 59 N.W.2d 841, 844 (1953) (discussing erroneous labeling of findings and conclusions).

The district court’s supplemental finding and conclusion that the business should go to Randy Bettermann did not vacate its earlier conclusion; the court gave him the “entire business and its value.” The district court did not find, as Karen Bettermann suggests, that the business has no value. The court’s findings regarding Randy Bettermann’s contributions to the business relate to its reasons for giving him the entire business, and the court’s decision is equitable and within its discretion. An equitable decision does not require an equal division, and the court appropriately considered Randy Bettermann’s contribution to the business. The court also heard testimony that Karen Bettermann intentionally disconnected his business telephone line in the home for several months while they were separated, causing him to lose business. Her effort to harm the business, which is his only source of income, also bears on equity and supports the court’s decision.

Randy Bettermann challenges the district court’s amended finding dividing equally the mortgage-escrow refund. He bases his challenge on the form of Karen Bettermann’s motion for amended findings, arguing that she did not comply with the requirements of Minnesota General Rules of Practice 303.03(a)(1). Rule 303.03(a)(1) requires a moving party to file a notice of motion, its motion, “[a]ny relevant affidavits and exhibits,” and “[a]ny memorandum of law the party intends to submit.” The district court did not err by amending its finding.

Karen Bettermann filed a notice of motion, her motion, and a memorandum of law. Her lack of an affidavit did not amount to noncompliance with the rules. The plain language of the rule does not require an affidavit. The phrase “any relevant” signals that an affidavit is not required unless necessary to support the motion and requested relief. See Minn. R. Civ. P. 52.02 (providing that motion for amended findings “may be made on the files, exhibits, and minutes of the court”); State v. Wickstrom, 405 N.W.2d 1, 4 (Minn. App. 1987) (applying plain language of rule) review denied, (Minn. June 30, 1987). Karen Bettermann based her motion to amend the division of the refund on evidence in the record. She attached several “exhibits” to her memorandum, but these were merely summaries of information already in the record. Further, the summaries related to her challenge to the court’s income determination, not the escrow refund. Her request to amend the refund division was not based on new information that required an affidavit. Because Karen Bettermann’s motion was not flawed procedurally and Randy Bettermann has not suggested any substantive errors with the district court’s amended finding, we affirm the finding.

The district court shall grant need-based attorneys’ fees if the court finds that the fees are necessary to a party’s good-faith claim, that the party from whom fees are sought has the means to pay the fees, and that the party seeking the fees does not have the means to pay them. Minn. Stat. § 518.14, subd. 1 (2004). The district court has broad discretion to grant attorney fees and we will not reverse its decision absent a clear abuse of discretion. Schallinger, 699 N.W.2d at 24.

The district court did not abuse its discretion by denying Randy Bettermann’s request for attorney fees. Each party is operating at a deficit with a similar financial situation. Although Karen Bettermann has a higher monthly income than Randy Bettermann, she also has higher monthly living expenses. She does not have expendable resources to pay both her own and Randy Bettermann’s attorney’s fees.

Affirmed.