Olmsted County District Court

File No. F2-95-1483

Terence L. Maus, Jill I. Frieders, O'Brien, Ehrick, Wolf, Deaner & Maus, LLP, 206 Broadway S., #611, P.O. Box 968, Rochester, MN 55903-0968 (for Respondent)

Thomas M. Manion, Jr., Herrick & Manion Law Office, 600 Kenilworth Avenue South, P.O. Box 420, Lanesboro, MN 55949 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Foley, Judge.

Daniel Cassidy appeals from a dissolution judgment, challenging the trial court's valuation of assets, division of debt, calculation of his income for child support purposes, schedule of equalization payments, and award of attorney fees to respondent Julie Cassidy. Respondent filed a notice of review claiming the trial court erred in failing to include accounts receivable, cash and cash equivalents in valuing their business and abused its discretion in awarding inadequate attorney fees.

We affirm in part, reverse in part, and remand.

During their marriage, the parties operated a sole proprietorship, Cassidy Construction. Appellant performed, and continues to perform, excavation services. His income varied from approximately $14,000 to $55,000 over the last five years. The business assets consisted of heavy equipment, office equipment, tools, accounts receivable, and cash assets and equivalents. Respondent provided bookkeeping services for the company. She is currently employed full time by an insurance agency and earns $21,000 per year.

The parties also had miscellaneous debts, including a debt of $18,000 to Agnes Cassidy, appellant's 96-year-old grandmother. The note evidencing the debt was dated May 22, 1989, and the loan balance was due December 31, 1989. A balance of $15,000 remains unpaid on the debt.

At trial, respondent introduced expert testimony from her accountant, Thomas Cummings, regarding appellant's income and the valuation of Cassidy Construction. Cummings testified that appellant's gross income for child support purposes was $52,000. He also testified that the value of Cassidy Construction was $213,974, including $68,884 of cash and cash equivalents, and accounts receivable. Respondent testified as to the value of the small tools used in the business.

Appellant testified on the values of the heavy equipment and the small tools. He did not offer evidence regarding the cash and cash equivalents and accounts receivable of the business. The trial court's findings and conclusions valued the small tools at $6,000, but excluded the cash, cash equivalents, and accounts receivables from the value of the business.

The trial court ordered appellant to pay respondent her portion of the equity in the business over a period of five years. The court also found that appellant's income, based on modified net earnings, was $52,000, which provided the basis for calculating his child support obligation. In apportioning the debt, the trial court assigned the Agnes Cassidy debt to appellant, but did not make findings regarding the validity of the debt. The court also ordered appellant to pay $1,000 of respondent's attorney fees. The court did not make findings regarding respondent's need for attorney fees.

Appellant moved for amended findings or a new trial, challenging, in part, (1) valuation of the small tools; (2) the assignment of the Agnes Cassidy debt; (3) the equalization schedule of payments to respondent; (4) the determination of appellant's income for child support purposes; and (5) the award of attorney fees to respondent. Respondent also filed a motion for amended findings, contending, in part, that the award of attorney fees was inadequate. Respondent did not request amended findings regarding the valuation of Cassidy Construction. The court denied the motions of appellant and respondent on these issues. Both parties sought review. Respondent challenges the trial court's findings on the value of the business and its award of attorney fees to her. She also requests additional attorney fees on appeal.

Respondent did not move for amended findings or a new trial regarding the exclusion of these items from the valuation of the business. Accordingly, this court will look only at the sufficiency of the evidence presented at trial. See Gruenhagen v. Larson, 310 Minn. 454, 246 N.W.2d 565 (1976). If the evidence sustains the findings of fact and the findings of fact support the conclusions of law, this court will affirm the trial court. Id. at 458, 246 N.W.2d. at 569.

Cash assets and accounts receivables from a family business are marital assets. Nardini v. Nardini, 414 N.W.2d 184, 189 (Minn. 1987). Under Minn. Stat. § 518.58, subd. 1 (1996), a court presiding over a dissolution proceeding shall make a just and equitable division of marital property after making findings regarding the division of property.

Here, the court failed to make any findings regarding the cash assets and accounts receivables. Therefore, this court is unable to determine whether the court considered the assets at all. Accordingly, we remand this issue to the trial court for reconsideration and findings.

2. Valuations of Small Tools

On review, a trial court's valuation of marital assets will not be disturbed unless clearly erroneous. Olness v. Olness, 364 N.W.2d 912, 915 (Minn. App. 1985). If the trial court's valuation of an asset is within credible estimates made by competent witnesses, it will be affirmed. Johnson v. Johnson, 392 N.W.2d 922, 925 (Minn. App. 1986).

Generally, a property owner is presumptively acquainted with his or her property's value and may testify as to its value. Lehman v. Hansord Pontiac Co., 246 Minn. 1, 6, 74 N.W.2d 305, 309 (1955); Bury v. Bury, 416 N.W.2d 133, 136 (Minn. App. 1987). In this matter, both parties testified regarding the value of the small tools. Respondent was familiar with the purchase price of the tools. Appellant, who used the tools in his work, testified regarding their condition. Both parties testified about the current value of the tools, and the trial court made a determination based on this evidence and the credibility of the witnesses. Accordingly, this court will not disturb the trial court's findings on the valuation of the small tools.

3. Debt

The trial court's allocation of debt is treated and reviewed by this court as part of the marital property. Minn. Stat. § 518.58 (1996); Justis v. Justis, 384 N.W.2d 885, 888 (Minn. App. 1986), review denied (Minn. May 29, 1986). The trial court has broad discretion in dividing property and its decision will not be disturbed absent a clear abuse of discretion. Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986). However, the trial court must make findings that support its conclusions of law to demonstrate the bases for its decision. See, e.g., Moylan v. Moylan, 384 N.W.2d 859, 864-65 (Minn. 1986).

Here, the trial court assigned the Agnes Cassidy debt to appellant without making findings regarding the validity of the debt or why the entire debt was so assigned. While the trial court has broad discretion in dividing debt and property, and the division need not be mathematically equal, the division must have an acceptable basis in fact. Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984). Because this court is unable to discern the basis for the trial court's treatment of this debt, we remand this issue for further findings.

4. Appellant's Income

Appellant contends that the trial court erred in adjusting his income for child support purposes based on the testimony of respondent's accountant. Appellant asserts that the court should have taken a five-year average of his income, excluding 1996 income. He argues that 1996 should have been excluded, because at trial his 1996 income was unknown. Further, appellant believes the trial court should have included his 1995 income in reaching the average.

The trial court's determination of net income will not be disturbed if it has a reasonable basis in fact. Hayes v. Hayes, 473 N.W.2d 364, 365 (Minn. App. 1991); Veit v. Veit, 413 N.W.2d 601, 606 (Minn. App. 1987). Here, the trial court carefully considered the evidence and made specific findings regarding appellant's earnings history and likely income for 1996. The court quite reasonably excluded appellant's abnormally low income in 1995 (while the divorce was pending) and also added back certain depreciation reductions, in an effort to accurately identify appellant's likely earnings. Thus, we will not disturb the trial court's determinations regarding appellant's income.

5. Equalization Payments

Appellant argues that the trial court erred in ordering him to make property equalization payments to respondent over the next five years. He contends that these payments will be difficult to meet.

The trial court has broad discretion in setting a property equalization payment schedule. Thomas v. Thomas, 407 N.W.2d 124, 126 (Minn. App. 1987). Absent an abuse of that discretion, the trial court's decision will stand. Id.

Appellant does not demonstrate that the trial court abused its discretion in ordering the equalization payment schedule. He merely states the schedule will be difficult to meet and that appellant prefers his proposed payment schedule. The court's findings demonstrate that it considered the parties' financial status in structuring the property equalization schedule. The court's imposition of a payment schedule in lieu of requiring immediate and full payments shows the court's awareness of the parties' financial condition. Accordingly, we affirm the trial court's imposition of the property equalization schedule. To the extent the trial court alters the valuation of the business on remand, the payment schedule shall also be altered.

5. Attorney Fees

Both parties dispute the trial court's award of attorney fees. Appellant contends the award was improper because the court did not find that respondent lacked an ability to pay. Respondent argues the amount awarded her was inadequate and should be increased.

Minn. Stat. § 518.14, subd. 1 (1996), governs court awarded attorney fees in dissolution actions. The court must make findings that:

(1) the fees are necessary for the good-faith assertion of the party's rights in the proceeding;

(2) the party from whom fees are sought has the ability to pay them; and

(3) the party to whom fees are awarded does not have the means to pay them.

Id. Further, the court may award fees, in any event, against a party who unreasonably contributes to the length or expense of the proceeding. Id.

Here, the trial court awarded respondent $1,000 in attorney fees, but made no findings, as required under the statute. We accordingly remand the issue of attorney fees to the trial court for reconsideration and findings.

Respondent also moved for an award of attorney fees on appeal under Minn. Stat. § 518.14, subd. 1 (1996). It does not appear that either party has a greater ability to pay attorney fees at this time. Thus, we deny respondent's motion for attorney fees on appeal.

Affirmed in part, reversed in part, and remanded.