A. Larry Katz, Elizabeth B. Bowling, Katz & Manka, Ltd., 4150 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Forsberg, Judge.[*]

Appellant Ronald Meyer challenges the trial court's award of spousal maintenance, determination of child support, and division of property in this marital dissolution. Appellant and respondent Lana Meyer both request attorney fees in connection with this appeal. Because the trial court improperly calculated appellant's income and failed to consider the parties' requests that maintenance be reserved, we reverse and remand on those issues. Because the court did not abuse its discretion in its division of property, we affirm on that issue. And because there is no basis for an award of attorney fees on appeal, we deny the parties' requests.

The trial court ordered appellant to pay the guidelines amount of $1,062.46 per month in child support. The child support award was based on the court's determination that appellant's monthly net income was $3,541.55.

If a trial court does not deviate from the child support guidelines, the only finding it must make is the amount of the obligor's income. See Minn. Stat. § 518.551, subd. 5(i) (Supp. 1995). A trial court's determination of net income for the purpose of calculating child support "will be affirmed if it has a reasonable basis in fact." Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987).

A trial court must use current net income figures when determining child support obligations. See Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn. App. 1989). If impractical under the circumstances to determine actual income, a trial court may impute income to an obligor by estimates and averages based on earning capacity or earning history. See Roatch v. Puera, 534 N.W.2d 560, 565 (Minn. App. 1995); Veit v. Veit, 413 N.W.2d 601, 605-06 (Minn. App. 1987). The court must avoid speculation and should base its calculation on dependable, regular figures of an obligor's income. Cf. Derosier v. Derosier, 551 N.W.2d 507, 509 (Minn. App. 1996) (bonuses may be considered if dependable form of periodic payment); Strauch, 401 N.W.2d at 448 (overtime may be considered if regular, steady source of income for several years).

Appellant was employed by the parties' sewer business until respondent purchased his share of the business. At trial in August 1995, appellant testified that he had purchased farm land in Wisconsin with his property settlement and had planted corn and soybeans. He testified that his expenses up to the time of trial were $50,000. However, he claimed that he could not estimate his profit for 1995, and explained that he was farming the land for the first time and that farming revenues generally fluctuate greatly from year to year due to weather, crop yields, and timing of crop sales. Appellant further testified that he had been driving a truck for an excavating company, but that he would be taking time off to harvest his crops. Finally, appellant testified that he planned on starting another sewer business sometime after the 1995 harvest.

The trial court found appellant's income from truck driving to be $924 per month, based on his working nine months out of the year. The court found appellant's farm profit to be $82,270, by estimating his total yield of corn and soybeans and taking judicial notice of current crop prices. The trial court deducted $50,000 in expenses and determined appellant's gross profit would be $32,270, or $2,689.17 net per month. The court thus calculated appellant's total net monthly income for 1995 to be $3,613.55.

In support of his motion for reconsideration or a new trial, appellant submitted his 1995 tax return and correctly noted that he had testified his farming expenses were $50,000 as of the date of trial. Appellant further explained that he drives truck only five months of the year, because he is not able to begin driving until the road restrictions end in May of each year and because he takes time off in the spring and fall to plant and harvest his crops. While a trial court has the discretion to consider "new" evidence in connection with a motion for reconsideration or new trial, see Minn. R. Civ. P. 59.01(d), we conclude that the trial court in this case abused its discretion by not reconsidering its calculation of appellant's net income. Given the mistaken assumptions made by the trial court, as noted by appellant in his motion to reconsider, and the fact that appellant was farming this land for the first time, the trial court's failure to consider all of the available evidence rendered its estimates of appellant's farming income speculative. Cf. Otte v. Otte, 368 N.W.2d 293, 298-99 (Minn. App. 1985) (new evidence regarding value of growing crops should have been considered by trial court).

We therefore reverse the trial court's award of child support and remand for recalculation of appellant's net monthly income. On remand, we caution the trial court to follow Minn. Stat. § 518.551, subd. 5(b), and consider all appropriate deductions to gross income. The court only need allow reasonable business deductions incurred for the production of income. Cf. Bartl v. Bartl, 497 N.W.2d 295, 299-300 (Minn. App. 1993); Otte, 368 N.W.2d at 297 (tax returns alone may be insufficient to determine net income of self-employed person). To obtain the most accurate representation of appellant's income, the court may, in its discretion, allow evidence on appellant's 1996 farming income and expenses.

Spousal Maintenance

The trial court awarded respondent permanent maintenance of $700 per month. The issue in a maintenance determination is basically a weighing of the recipient's need against the obligor's financial condition. See Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982).

The trial court indicated that both parties requested an award of permanent spousal maintenance. In their proposed findings, however, both parties sought reservation of the issue. In particular, respondent proposed a finding that acknowledged "it is clear that [appellant] lacks the present ability to contribute regular payments beyond his child support obligation." She proposed the following conclusion of law:

Neither party is awarded spousal maintenance at this time, and the Court hereby reserves jurisdiction over the issue of spousal maintenance.

Under these circumstances, it was error for the trial court to award respondent permanent spousal maintenance. We therefore reverse the trial court on this issue and direct that the issue be reserved. See Minn. Stat. § 518.55, subd. 1 (1994) (issue of maintenance may be reserved for determination at later date).

Property Division

Appellant argues that the trial court abused its discretion by failing to consider $13,400 withdrawn by respondent from a joint farm account during the pendency of the proceedings. Appellant claimed he was entitled to half of these funds and characterized them as dissipated assets. On cross-examination, respondent testified that she used these funds to pay her rent in 1994, which was $1,300 per month.

These funds were not dissipated assets, but were used to maintain the family home for the benefit of respondent and the children. The trial court had not yet ordered child support, and appellant contributed nothing toward the children's support from the filing of the dissolution until entry of the judgment almost two years later. In its amended judgment, the trial court noted that any disproportion in the division of property was offset by appellant's failure to pay any child support during the pendency of the proceedings.

A trial court has broad discretion in its division of marital property, and its decision will not be reversed absent an abuse of that discretion. See id. § 518.58, subd. 1 (trial court to make "just and equitable" division of marital property). While a party may not dissipate marital assets in anticipation of divorce, assets used by one party for necessary living expenses have not been dissipated. See March v. March, 435 N.W.2d 569, 572 (Minn. App. 1989); Volesky v. Volesky, 412 N.W.2d 750, 752-53 (Minn. App. 1987); Griepp v. Griepp, 381 N.W.2d 865, 869 (Minn. App. 1986). Under these circumstances, the trial court made an equitable division of property and did not abuse its discretion.

Attorney Fees

Both parties request attorney fees in connection with this appeal. Attorney fees may be awarded when necessary to permit a party to participate in a proceeding. Minn. Stat § 518.14, subd. 1 (1994). A request for fees on appeal will likely be denied if the appeal was not frivolous. See Minn. Stat. § 549.21 (1994); Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991); . The finances of both parties must be considered when determining whether an award of fees is necessary or appropriate. See Dougherty v. Dougherty, 443 N.W.2d 193, 195 (Minn. App. 1989). Because neither party appears to be in a better position to pay attorney fees on appeal, and because the issues raised here were not frivolous, we deny both parties' requests. Any request for costs and disbursements shall be served and filed in accordance with Minn. R. Civ. App. P. 139.03.

Affirmed in part, reversed in part, and remanded.

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.