In re Marriage of: Linda Lee Martin, petitioner, Respondent, vs. John Harold Martin, Appellant. C0-97-881, Court of Appeals Unpublished, December 30, 1997.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-97-881

In re Marriage of:

Linda Lee Martin, petitioner,

Respondent,

vs.

John Harold Martin,

Appellant.

Filed December 30, 1997

Affirmed; motion for attorney fees denied.

Short, Judge

Anoka County District Court

File No. F99511384

John F. Gilsdorf, Gilsdorf & Associates, 1160 Capital Centre, 386 North Wabasha, St. Paul, MN 55102-1308 (for petitioner, respondent)

Donald A. Hillstrom, 744 Norwest Midland Building, 401 Second Avenue South, Minneapolis, MN 55401 (for appellant)

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

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

SHORT, Judge

On appeal from a judgment and decree in a dissolution case, John Harold Martin argues the trial court abused its discretion in: (1) imposing discovery sanctions; (2) dividing certain personal property; (3) ordering the immediate sale of the homestead; (4) calculating spousal maintenance and awarding arrearages; (5) allocating debt and failing to require his former spouse to sign joint tax returns; (6) awarding his former spouse attorney fees; and (7) failing to provide a payment plan under which he could make court-ordered payments to his former spouse. Martin's former spouse requests attorney fees and costs incurred on appeal. We affirm the judgment and decree, but deny the motion for additional attorney fees.

D E C I S I O N

Martin argues the trial court erred in precluding an income summary prepared by his accountant and in prohibiting evidence of "tracing" and contribution to determine if nonmarital property was used in the purchase of the homestead. In fashioning a preclusion order, the trial court should strive to prevent the recalcitrant party from profiting from its discovery violations. See Gebhard v. Niedzwiecki, 265 Minn. 471, 478-79, 122 N.W.2d 110, 115 (1963) (concluding purpose of discovery sanctions is to prevent party from profiting from its own discovery violations, therefore failure to answer interrogatories truthfully may warrant suppression of evidence). We will not disturb the trial court's imposition of a discovery sanction absent a clear abuse of discretion. Cornfeldt v. Tongen, 262 N.W.2d 684, 697 (Minn. 1977); see also Minn. R. Civ. P. 37.02(b) (noting court may impose sanctions upon failure to comply with order); Minn. R. Civ. P. 37.04 (noting court may impose sanctions for party's failure to serve answers to interrogatories).

The record demonstrates: (1) Martin is an attorney engaged in private practice; (2) Martin's former spouse was forced to file two motions to compel discovery; (3) Martin failed to produce income summaries to his former spouse prior to his attempt to enter them into evidence; and (4) the trial court found Martin "grossly negligent" in failing to comply with his former spouse's discovery requests, which caused his former spouse to be "greatly disadvantaged to properly address or defend" Martin's claims. Given these facts, the trial court did not abuse its discretion in excluding evidence of an alleged nonmarital interest or evidence of an income summary as a discovery sanction.

II.

A trial court has broad discretion in matters of property division, spousal maintenance, and awarding attorney fees, and we will uphold the trial court's decisions absent an abuse of that discretion. See Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986) (property division); Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982) (spousal maintenance); Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977) (attorney fees). A trial court's findings of fact must be sustained unless they are clearly erroneous. Minn. R. Civ. P. 52.01; Estate of Serbus v. Serbus, 324 N.W.2d 381, 384-85 (Minn. 1982).

A. Personal Property Division

Martin argues the trial court abused its discretion in requiring him to compensate his former spouse for certain personal property in his possession. However, the record demonstrates the trial court: (1) ordered the personal property "in the nature of automobiles, trucks, boats, motors, trailers, campers and snowmobiles" sold and the proceeds divided equally between the parties; (2) awarded Martin "the hunting and fishing equipment in his possession;" and (3) ordered Martin to pay his former spouse, in consideration of that award, $1,000 within sixty days of the entry of judgment. Because the trial court's determination has a reasonable basis in fact, we cannot say the trial court abused its discretion in its dividing the personal property between the parties. See DuBois v. DuBois, 335 N.W.2d 503, 507 (Minn. 1983) (concluding trial court has broad discretion in its determination of appropriate property division and must be affirmed if its determination has reasonable and acceptable basis in fact and principle).

B. Sale of Homestead

Martin also argues the trial court abused its discretion in ordering the immediate sale of the homestead because the sale of the homestead would adversely affect the parties' minor child, and in not calculating his former spouse's lien on the property. However, the trial court found: (1) neither party had the "financial ability to maintain the homestead"; (2) if the property was not sold, "the equity which the parties have in this property, their most significant marital asset, could be lost in a foreclosure proceeding"; and (3) the best interests of the parties' minor child, aged 16, will not be adversely affected by the sale. Under these circumstances, we cannot say the trial court abused its discretion in ordering the immediate sale of the homestead or in failing to calculate his former spouse's lien against the homestead. See Rohling, 379 N.W.2d at 522 (trial court has broad discretion in matters of property division and reviewing court will uphold trial court's decisions absent an abuse of that discretion); Goar v. Goar, 368 N.W.2d 348, 351 (Minn. App. 1985) (holding trial court abused its discretion when it ordered sale of homestead and made no finding that it had considered impact of sale upon best interests of minor children).

C. Division of Debt and Payment of Taxes

Martin also argues the trial court abused its discretion in dividing debt between the parties and in failing to require his former spouse to sign joint tax returns. See Minn. Stat. § 518.58, subd. 1 (1996) (requiring "just and equitable division" of property). We disagree. The record demonstrates: (1) Martin's former spouse has had a varied employment history and is currently employed at two part-time jobs; (2) Martin has been a self-employed attorney since 1967, and has worked at the same St. Paul law office for 25 years; and (3) currently, Martin resides at the parties' homestead and his former spouse currently resides in an apartment. Under these circumstances, we cannot say the trial court abused its discretion in dividing debt between the parties and in not requiring Martin's former spouse to sign the joint tax returns. See Bliss v. Bliss, 493, N.W.2d 583, 587 (Minn. App. 1992) (concluding trial court has broad discretion in dividing debts between parties in dissolution action), review denied (Minn. Feb. 12, 1993); see also Hedelius v. Hedelius, 361 N.W.2d 421, 424-25 (Minn. App. 1985) (holding trial court did not abuse its discretion when it failed to consider tax consequences of failing to file joint returns).

D. Spousal Maintenance

Martin also argues the trial court abused its discretion in averaging his income to calculate spousal maintenance and in awarding arrearages. We disagree. The record demonstrates: (1) Martin is a self-employed attorney whose annual income fluctuates; (2) Martin's former spouse has had a varied employment history, and currently is employed at two part-time jobs; (3) in calculating spousal maintenance, the trial court averaged Martin's income from 1990 through 1995; and (4) the trial court used Martin's income tax returns to determine the most accurate net income because of inconsistencies in Martin's assertions concerning his income and a lack of information provided by Martin. Under these circumstances, we cannot say the trial court abused its discretion in its calculation and award of spousal maintenance. See Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 363 (Minn. App. 1987) (concluding trial court's decision on spousal maintenance will be upheld if it has acceptable basis in fact and principle, even if this court would have made different disposition), review denied (Minn. Oct. 28, 1987); see also Erlandson, 318 N.W.2d at 39-40 (concluding critical considerations in award of maintenance are recipient spouse's financial need and ability to meet that need, balanced against financial situation of maintenance obligor).

E. Attorney fees

Martin also argues the trial court erred in awarding his former spouse attorney fees. We disagree. The trial court found: (1) Martin's former spouse had incurred attorney fees in good faith assertion of her rights and, based on her current financial standing, does not have the means to pay them; (2) Martin, based on his current income, has the financial ability to "materially contribute" toward the payment of his former spouse's attorney fees; and (3) Martin contributed to the length and expense of the proceeding by failing to pay court-ordered spousal maintenance, failing to provide timely and complete answers to discovery requests, forcing his former spouse to file motions to compel discovery and to enforce the court-ordered spousal maintenance, and being "less than candid and forthcoming in his discovery responses." Under these circumstances, we cannot say the trial court abused its discretion in awarding attorney fees to Martin's former spouse. See Minn. Stat. § 518.14, subd. 1 (1996) (enumerating trial court findings required to award attorney fees in marital dissolution); Rask v. Rask, 445 N.W.2d 849, 855 (Minn. App. 1989) (concluding award of attorney fees not clear abuse of discretion where some support in record for finding other party refused to cooperate with discovery); Roehrdanz, 410 N.W.2d at 364 (concluding award of attorney fees justified where former spouse unwilling to comply with discovery requests and such conduct was calculated to cause delay, hardship, lengthy trial, and numerous hearings).

III.

Martin finally argues the trial court abused its discretion in failing to order a payment plan under which he could make court-ordered payments to his former spouse. However, the imposition of a payment plan is not mandatory and, the failure to order such a plan does not constitute an abuse of discretion. See Roehrdanz, 410 N.W.2d at 364 (evaluating failure to impose payment plan under abuse of discretion standard).

Martin's former spouse asks this court to award her $13,000 in attorney fees and costs incurred to defend against this appeal. Because Martin's appeal is not frivolous, we decline to award fees on appeal.

Affirmed; motion for attorney fees denied.