In Re the Marriage of: Patricia Ann Victorian, petitioner, Respondent, vs. Raphael Victorian, Appellant. C2-97-1899, Court of Appeals Unpublished, March 3, 1998.

This opinion will be unpublished and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

C2-97-1899

In Re the Marriage of:

Patricia Ann Victorian, petitioner,

Respondent,

vs.

Raphael Victorian,

Appellant.

Filed March 3, 1998

Affirmed; motion for attorney fees denied

Short, Judge

Ramsey County District Court

File No. F096798

William E. Haugh, Jr., Sarah J. Batzli, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1379 (for respondent)

Michael D. Schwartz, Jodi J. Johns, Michael D. Schwartz, P.A., Interchange South, 400 South Highway 169, Suite 110, Minneapolis, MN 55426 (for appellant)

Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, 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 in a dissolution case, Raphael Victorian argues the trial court abused its discretion in: (1) valuing and distributing property; (2) awarding temporary spousal maintenance; and (3) awarding attorney fees. Victorian's former spouse requests attorney fees and costs incurred on appeal. We affirm the judgment, and deny the motion for additional attorney fees.

D E C I S I O N

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.[1] 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; In re Estate of Serbus v. Serbus, 324 N.W.2d 381, 384-85 (Minn. 1982).

A bequest made to one spouse, but not the other spouse constitutes nonmarital property, and may be apportioned in a dissolution proceeding only upon a finding of "unfair hardship." See Minn. Stat. § 518.54, subd. 5 (1996) (providing definition of nonmarital property); Nardini v. Nardini, 414 N.W.2d 184, 190 (Minn. 1987) (concluding trial court may apportion nonmarital property upon finding of "unfair hardship"). Victorian argues the trial court abused its discretion by dividing his inheritance without making an explicit "hardship" finding. We agree the trial court failed to use the words "unfair hardship" in its judgment. Although the use of such "magic words" would further support the record on appeal, their absence is not fatal if the record demonstrates the trial court actually considered "unfair hardship." See Moylan v. Moylan, 384 N.W.2d 859, 865 (Minn. 1986) (concluding decision inadequate if record fails to reveal trial court actually considered appropriate factors).

It is undisputed the trial court: (1) heard testimony from Victorian's former spouse that his spending constituted an "unfair hardship"; (2) found Victorian's unilateral spending depleted the marital estate such that his former spouse does not have the financial resources to pay any of the debts in collection; and (3) found without Victorian's expenditures, the parties would not have their current indebtedness. Given this proper analysis, we cannot say the trial court abused its discretion in concluding the significant negative financial impact of Victorian's spending warranted division of the inherited funds. See Roel v. Roel, 406 N.W.2d 619, 622 (Minn. App. 1987) (concluding where record justifies finding of unfair hardship, court acts within its discretion in apportioning nonmarital property).

Victorian also argues the trial court abused its discretion by considering his marital expenditures when dividing property. In dividing property, a court must base its findings on all relevant factors, including the contribution of each spouse to the depreciation of marital property. See Minn. Stat. § 518.58, subd. 1 (1996) (providing upon dissolution court shall consider all relevant factors when dividing property). Given Victorian's substantial premarital debts, his unilateral expenditures during the marriage, and the financial situation of the parties upon dissolution, the trial court's consideration of Victorian's spending is well within its discretion in equitably dividing the parties' property.

Victorian also argues the trial court abused its discretion in crediting his former spouse for payment of his pre-marital debts because its conclusions are unsupported and contrary to law. We disagree. It is undisputed that Victorian's pre-marital debts of $45,754 were paid off with marital funds during the marriage. By contrast, his former spouse only had $2,000 to $3,000 worth of credit card debt at the time of the marriage. Given these facts, there is ample evidence to support the trial court's decision to credit his former spouse for the pre-marital debt payments. 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 determination has reasonable and acceptable basis in fact and principle).

Victorian further argues the trial court abused its discretion in dividing property where there is no evidence to support the valuations of the homestead and the photography equipment. However, the specific value of a marital asset is a question of fact, and we will not set aside a trial court's valuation unless clearly erroneous. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). Because the valuation of assets often requires an approximation, a trial court's estimate need only be within a reasonable range of figures. Id. The record demonstrates the trial court valued the homestead by examining tax estimates and a market analysis of sales of similarly situated homes, and valued the photography equipment by considering its purchase price, current retail price, and tax depreciation taken by Victorian. Under these circumstances, the trial court's valuation was not clearly erroneous. See id. (holding reviewing court must sustain finding of value if it falls within limits of credible estimates made by competent witnesses even if it does not coincide exactly with estimate of any one of them).

Finally, Victorian argues the trial court abused its discretion in denying him part of his former spouse's pension benefits. See Minn. Stat. § 518.54, subd. 5 (providing marital property encompasses part of pension benefits acquired by either spouse at any time during marriage). The record shows the trial court awarded his former spouse half of the marital part of Victorian's pension benefits, declined to award Victorian a part of her pension benefits, and awarded the parties a relatively equal amount of marital assets. Although not precisely equal, given our standard of review, we conclude the trial court's division of property is just and equitable. See Minn. Stat. § 518.58, subd. 1 (requiring just and equitable property division); Ruzic v. Ruzic, 281 N.W.2d 502, 505 (Minn. 1979) (concluding court's division of marital property need not be mathematically equal, but need only be just and equitable).

II.

An award of maintenance is permissible if a spouse lacks sufficient property to provide for that spouse's reasonable needs or is unable to provide adequate self-support. Minn. Stat. § 518.552, subd. 1 (1996). The critical considerations in an award of maintenance are the recipient spouse's financial need and ability to meet that need, balanced against the financial situation of the maintenance obligor. Erlandson, 318 N.W.2d at 39-40. A spouse seeking maintenance must prove "that spouse's" expenses exceed spendable income. See Sefkow v. Sefkow, 427 N.W.2d 203, 216 (Minn. 1988) (concluding award of maintenance improper when spouse seeking maintenance did not show her living expenses exceeded her spendable income).

Victorian argues the trial court abused its discretion in awarding his former spouse temporary spousal maintenance. However, the trial court found: (1) his former spouse has been employed by HealthEast since 1977, has a net monthly income of $1,506 and reasonable monthly expenses of $1,509, which include only a minimal amount for payment of attorney fees and nothing for other debts or savings; and (2) Victorian has been employed as a journeyman firefighter since 1985 and has a net monthly income of $2,916. Given these facts, we cannot say the trial court abused its discretion in awarding temporary maintenance in the amount of $424 per month for a period of three years to Victorian's former spouse.

III.

Victorian argues the trial court abused its discretion in awarding his former spouse attorney fees. We disagree. The record demonstrates: (1) Victorian'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) Victorian has the financial ability to contribute to the payment of those fees; and (3) Victorian contributed to the length and delay of the proceedings by failing to complete any pretrial discovery until after his former spouse made a second motion to compel discovery, failing to answer discovery requests until over one month after the motion to compel discovery was filed, and failing to provide documents concerning the second mortgage on the parties' homestead until the day of trial. Under these circumstances, we cannot say the trial court abused its discretion in awarding attorney fees to Victorian's former spouse. See Minn. Stat. § 518.14, subd. 1 (1996) (enumerating trial court findings required to award attorney fees in marital dissolution); see, e.g., 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 v. Roehrdanz, 410 N.W.2d 359, 364 (Minn. App. 1987) (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), review denied (Minn. Oct. 28, 1987).

Victorian's former spouse asks this court to award her approximately $4,000 in attorney fees and costs incurred to defend against this appeal. Because Victorian did not bring this appeal in bad faith, we decline to award fees on appeal. See Minn. Stat. § 518.14 (1996) (outlining requirements for award of attorney fees in dissolution action); Minn. R. Civ. App. P. 138 (providing for award of attorney fees if appeal delays proceedings on judgment and appears to have been taken merely for delay); Emerick ex rel. Howley v. Sanchez, 547 N.W.2d 109, 113 (Minn. App. 1996) (concluding award of attorney fees proper where party acted solely for purpose of harassment or attorney fees necessary to enable party to carry on or contest proceeding).

Affirmed; motion for attorney fees denied.

[ ]¹ Although the trial court did not review the referee's findings, the scope of review on appeal is not limited because this case is part of the Combined Jurisdiction Pilot Project.