This opinion will be unpublished and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

C0-97-1061

Victoria Marie Miller, petitioner,

Respondent,

vs.

George Ernest Miller,

Appellant.

Filed February 3, 1998

Affirmed

Toussaint, Chief Judge

Hennepin County District Court

File No. DC212084

Richard D. Goff, Law Office of Richard D. Goff, 3280 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for appellant husband)

A. Larry Katz, Brian L. Sobol, Katz & Manka, Ltd., 4150 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for respondent wife)

Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Forsberg, Judge.[*]

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

TOUSSAINT, Chief Judge

Appellant George Ernest Miller challenges (1) the amount and duration of his maintenance obligation; (2) the requirement he secure maintenance; (3) the finding he dissipated marital assets; (4) the valuations of his medical practice and profit sharing plan; and (5) the awards to respondent Victoria Marie Miller of certain property, maintenance arrears, and attorney fees. Because the district court's findings are not clearly erroneous and its rulings within its discretion, we affirm.

DECISION

I.

Absent an abuse of its "wide discretion" in awarding maintenance, "the trial court's determination is final." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). An abuse of discretion occurs if the district court makes "a clearly erroneous conclusion that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). While Minn. Stat. § 518.552 (1996) lists factors to be considered in setting the amount and duration of maintenance, no single factor is dispositive and the issue is basically the recipient's need balanced against the obligor's financial condition. Erlandson, 318 N.W.2d at 39-40. If uncertainty exists about the need for permanent maintenance, the district court shall award permanent maintenance and leave the award open for future modification. Minn. Stat. § 518.552, subd. 3 (1996).

Appellant claims the district court erred by setting maintenance without requiring respondent to use income from her property award to support herself, as case law requires. E.g., Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985). The district court found "many" assets awarded respondent are "not income-producing" and that she should not have to liquidate them. This is consistent with case law. See Dougherty v. Dougherty, 443 N.W.2d 193, 195 (Minn. App. 1989)(stating maintenance recipients not required to invade principal of property award to pay expenses). Because appellant has not shown respondent could earn more than nominal income on the liquid portion of her property award, we will not reverse on this basis. See Minn. R. Civ. P. 61 (harmless error to be ignored). Similarly, because respondent's need for maintenance is a function of her marital standard of living, Minn. Stat. § 518.552, subd. 2(c) (1996), and because the marital standard of living included certain real property, the district court did not abuse its discretion by not requiring respondent to sell that real property.

Appellant claims the district court should have imputed more income to respondent than it did. The cases on which appellant relies are distinguishable from this case. Also, on this issue, the district court found the testimony of appellant and his expert not credible, or inconsistent with the marital standard of living, or both. We defer to the district court's view of the testimony. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations).

Appellant challenges the findings of both parties' monthly expenses. Because the district court apparently found respondent's claimed expenses credible but appellant's claimed expenses not credible, we defer to those findings under Sefkow. Appellant states it is unclear on which finding of his income his maintenance obligation was based. Because we affirm the finding of appellant's expenses and because even the lower finding of his income is substantial, we will not reverse on this basis. Minn. R. Civ. P. 61.

II.

Appellant challenges the requirement that he secure his maintenance obligation with insurance. Appellant claims O'Brien v. O'Brien, 343 N.W.2d 850 (Minn. 1984) and Maeder v. Maeder, 480 N.W.2d 677 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992), allow the securing of maintenance with insurance "only in exceptional cases." After O'Brien, the maintenance statute was amended to require that doubts about a maintenance recipient's ability to become self-supporting be resolved in favor of awarding permanent maintenance. Minn. Stat. § 518.552, subd. 3. Case law under the current standard for permanent maintenance eliminates the "exceptional case" requirement for insuring maintenance and states that whether to secure maintenance is discretionary with the district court. Maeder, 480 N.W.2d at 680; Katter v. Katter, 457 N.W.2d 750, 754 (Minn. App. 1990); Zagar v. Zagar, 396 N.W.2d 98, 102 (Minn. App 1986). Here, securing respondent's maintenance award is supported by her inability to become self-supporting, limited education, limited work experience, and age. Cf. Arundel v. Arundel, 281 N.W.2d 663, 667 (Minn. 1979) (securing maintenance under "exceptional case" standard justified by length of marriage, recipient's age, and lack of job skills).

III.

Appellant challenges the ruling that funds involved in a transfer to an irrevocable trust, and the interest these funds would have generated, should be part of the marital estate and charged against his share of the property distribution. Parties to a marriage have a fiduciary duty to each other for any transaction involving marital property occurring during or in contemplation of dissolution. Minn. Stat. § 518.58, subd. 1a (1996). If marital property is "transferred, encumbered, concealed, or disposed of * * * except in the usual course of business or for the necessities of life," the district court "shall" put the parties in the position they would have been in had the "transfer, encumbrance, concealment, or disposal not occurred." Id. Here, the district court ruled appellant did not provide respondent the information she needed to make an informed decision on whether to consent or waive any objection to the transfers in question. We reject appellant's claim that whether respondent consented to the transfer was not properly before the court. The dissipation issue was before the court and addressing that issue required the court to address whether the claimed dissipation was "without the consent of the other [party to the dissolution.]" Minn. Stat. § 518.58, subd. 1. Absent the relevant information, respondent could not have waived any objection to the transfer. See Smith v. Smith, 235 Minn. 412, 421, 51 N.W.2d 276, 281 (1952) (defining waiver as "a voluntary relinquishment of a known right"); Henry Campbell Black, et. al., Black's Law Dictionary 779 (6th ed. 1990) (defining "informed consent," in part, as "[a] person's agreement to allow something to happen * * * that is based on a full disclosure of facts needed to make the decision intelligently.")

Appellant claims the transfer could not have been made in contemplation of dissolution as required by Minn. Stat. § 518.58, subd. 1a, because it occurred two and-a-half years before the parties separated. In a series of findings, the district court functionally found the transfers in question were a strategic decision made by appellant in contemplation of the dissolution that was certain to occur should respondent learn the truth about his extramarital relationship and children. This record supports the finding that husband breached his fiduciary duty to respondent. See Lossing v. Lossing, 403 N.W.2d 688, 690 (Minn. App. 1987) (requiring record be viewed in light most favorable to findings).

Appellant claims that under Minn. Stat. § 518.58, subd. 1 (1996), which requires marital property to be divided "without regard to marital misconduct," whether respondent knew about his nonmarital children is irrelevant to the property division. Even if appellant correctly reads this provision of the property-division statute to conflict with the provision making him liable for breaching his fiduciary duty, the latter provision is more specific. It is implicated only if he breaches his fiduciary duty, rather than in all property divisions like the general property-division provision. Such a conflict between general and specific statutory provisions is resolved in favor of the specific provision. Minn. Stat. § 645.26, subd. 1 (1996).

Appellant claims the transfer was not a "dissipation" of assets. By statute, he is liable if he "transferred, encumbered, concealed, or disposed of marital assets except in the usual course of business or for the necessities of life[.]" Minn. Stat. § 518.58, subd. 1a. Appellant makes no claim the transfer occurred in the usual course of his medical practice. Nor can it be said the transfer was to pay for the necessities of life. Because Estate of Jeruzal v. Jeruzal, 269 Minn. 183, 130 N.W.2d 473 (1964) is distinguishable, appellant's reliance on it is misplaced.

Appellant claims respondent is not entitled to a share of assets acquired after the date she would have sought to dissolve the marriage if she had known of his infidelity. But marital property is defined, in part, as property acquired "any time during the existence of the marriage relation[.]" Minn. Stat. § 518.54, subd. 5 (1996). Here, assets were acquired during the marriage but after appellant began his extra-marital relationship.

Appellant claims the finding of the amount of additional assets that would have been available for distribution but for the transfer is speculative and ignores the taxes that would have been paid on the income from the transferred assets. Respondent's expert testified that the income projections for the funds in question were based on actual rates of return. Further, even if the effective tax rate is as appellant claims, the district court overstated the amount in question by less than the difference in the parties' estimated values of appellant's medical practice, an amount the district court did not find significant.

Appellant claims the district court's division of the parties' profit-sharing plans is unfair because respondent's income will exceed his after the parties retire. Had the transfer to the irrevocable trust not occurred or had appellant not established trusts for his nonmarital children, or both, he would have additional assets for retirement purposes.

IV.

Appellant claims the findings do not support the valuation of his medical practice. Asset valuations are findings of fact and will be affirmed if within the limits of credible estimates made by competent witnesses. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). The district court's findings show it considered the similarities and differences between the experts' valuations and reached an independent valuation of the practice. Because the valuation is between those of the experts, we affirm under Hertz.

Appellant complains about the method respondent's expert used to value the medical practice. To the extent appellant's complaints were not brought up in district court, they need not be reviewed. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). To the extent appellant's objections were raised in district court, they are functionally a request that this court find respondent's expert to be not credible or that this court re-evaluate the weight to be given the testimony of respondent's expert, or both. Such requests are improper. See Sefkow, 427 N.W.2d at 210 (appellate courts defer to district court credibility determinations); J.L.B. v. T.E.B., 474 N.W.2d 599, 603 (Minn. App. 1991) (appellate courts defer to district court determinations of weight to be given evidence), review denied (Minn. Oct 11, 1991). Further, while respondent's expert admitted estimating appellant's reasonable compensation based on compensation for a specialty other than the one husband practices, the expert stated he adjusted the compensation figure to account for differences between the two specialties.

Appellant claims the district court erred by ignoring the parties' stipulation on the valuation of his profit-sharing plan. Where, as here, parties stipulate to the value of a contested asset and the party possessing the information on which the stipulation is to be based later admits, against his interest, the asset has a greater value, the district court may adopt that greater value.

V.

Appellant claims the district court erred in awarding respondent certain stock as nonmarital property. Whether property is nonmarital is a legal question, but appellate courts defer to the district court's underlying findings of fact. Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997). Property acquired by either party during a marriage is presumptively marital, but that presumption may be rebutted by a preponderance of the evidence showing the property to be nonmarital. Id. Appellant claims respondent's failure to document the nonmarital nature of the stock means the stock is marital. We disagree. The district court found respondent's testimony credible on this issue. See Doering v. Doering, 385 N.W.2d 387, 390-91 (Minn. App. 1986) (affirming nonmarital classification of property based on credibility of witness testimony). The deference given district court credibility determinations also addresses appellant's claim he was not given enough time to prepare to address the origin of the stocks. Appellant claims that because marital funds were used to pay income tax on the stock's dividends, the stock is marital. This claim fails to distinguish between the stock and the income the stock generates. See Swick v. Swick, 467 N.W.2d 328, 331 (Minn. App. 1991) (stating income from nonmarital asset is marital property), review denied (Minn. May 16, 1991).

VI.

The district court awarded respondent temporary maintenance arrears. Appellant claims he underpaid his temporary maintenance obligation because he made various other payments on respondent's behalf. The district court partially accepted this argument and gave appellant credit for certain payments. Given the lack of specificity of appellant's claim on this issue on appeal and the impropriety of this court conducting de novo review of what is essentially a factual issue, we cannot say the district court clearly erred in addressing this issue. See Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966) (stating "[i]t is not within the province of [appellate courts] to determine issues of fact on appeal").

VII.

The judgment requires appellant to pay attorney and expert witness fees. Appellant claims the findings do not support the awards. Fee awards are discretionary with the district court, and the district court must make findings to support its awards. Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992); see Minn. Stat. § 518.14, subd. 1 (1996) (giving standard for fee awards). The district court found appellant's positions on certain issues "greatly exacerbated" respondent's litigation costs and precluded the settlement of "a matter which should have been settled[.]" Because Minn. Stat. § 518.14, subd. 1, allows a fee awards against a party who "unreasonably contributes to the length or expense of the proceeding[,]" the findings satisfy the threshold for a conduct-based fee award. Any claim appellant lacks the funds to pay fees are unpersuasive. See Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991) (stating conduct-based fee awards under Minn. Stat. § 518.14 may be awarded "regardless of the relative financial resources of the parties").

Affirmed.

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