This opinion will be unpublished and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

CX-97-1620

In Re the Marriage of:

Anita C. Liebscher,

Respondent,

vs.

Gary F. Liebscher,

Appellant.

Filed May 26, 1998

Affirmed in part, reversed in part, and remanded

Klaphake, Judge

Hennepin County District Court

File No. DW200722

A. Larry Katz, Brian L. Sobol, 4150 First Bank Pl., 601 Second Ave. S., Minneapolis, MN 55402 (for respondent)

Richard D. Goff, 3908 IDS Center, 80 S. Eighth St., Minneapolis, MN 55402 (for appellant)

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.

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

KLAPHAKE, Judge

Appellant Gary F. Liebscher claims the trial court erred in valuing and dividing the marital estate, and in awarding respondent Anita F. Liebscher spousal maintenance and attorney fees. Appellant also claims the trial court judge should have been removed from the case, and asks that the case be remanded to a different judge. Although the trial court's valuation and division of the parties' property generally has an acceptable basis in fact and principle, the court made several isolated errors. We therefore affirm in part, reverse in part, and remand with directions.

D E C I S I O N

I.

Relying on his expert's testimony, appellant claims all property possessed by the parties when the marriage was dissolved is his nonmarital property. The trial court did not find appellant's expert credible because, essentially, (1) the expert used an improper method to trace appellant's nonmarital interests; (2) the expert improperly applied that method to the information he had; and (3) to the extent the expert's information came from appellant, the information itself was not credible. We defer to the trial court's assessment. See Alstores Realty, Inc. v. State, 286 Minn. 343, 353, 176 N.W.2d 112, 118 (1970).

Appellant raises several other specific challenges to the trial court's valuation and division of property. In particular, he challenges the trial court's findings that he failed to account for certain stocks (the Amgen group), that the stock would have been worth much more after trial than at the valuation date, and that the stock should be included in the marital estate at its value as of the close of trial. For credibility-related reasons, the trial court rejected appellant's explanation of what happened to the Amgen group and we defer to that ruling. Further, the trial court's decision to include the Amgen group in the marital estate at its value as of the close of trial was within its discretion. See Minn. Stat. § 518.58, subd. 1 (1996) (trial court may adjust property distribution for "substantial change" in asset's value pending trial).

Appellant claims that because a temporary order awarded the homestead furnishings to him, the judgment should not have awarded the furnishings to respondent . However, household goods and furniture may be awarded to either party, and a temporary order does not prejudice a party's rights which are to be litigated in later proceedings. See Minn. Stat. §§ 518.131, subd. 9(a); 518.58, subd. 1 (1996).

Appellant also claims that the difference between the amount he spent to acquire certain Fournier stock and the amount he was paid when he left his employment with Fournier and transferred the stock was a repayment of a pre-marital loan he made to Fournier, not an increase in the stock's value as found by the trial court. Because no exhibit cited by appellant mentions the alleged loan, he has not shown the trial court's finding to be clearly erroneous. See Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous).

Finally, appellant claims that the trial court erred by dividing property without considering amounts he spent during the pendency of these proceedings. Of the amount spent, about half was for the parties' attorney fees, expert fees, and court costs and is not part of the marital estate. See Foster v. Childers, 416 N.W.2d 781, 784 (Minn. App. 1987) (attorney fees not part of marital estate). The remainder was for respondent's temporary maintenance and living expenses and for the expenses of appellant and his business, National American Industries, Inc. (NAI). We find no support for appellant's claim that temporary expenses must be considered when dividing property. Cf. Minn. Stat. § 518.54, subd. 3 (1996) (defining maintenance as a payment from "future income or earnings"); § 518.58, subd. 1 (listing considerations to be examined in dividing property).

Although we reject many of appellant's arguments, examination of the extensive record and the detailed findings in this case reveals several errors that require remand. First, finding 64 states the parties agreed appellant's nonmarital interest and a post-valuation date decrease in the value of stock held by NAI should be netted from NAI's gross value. When dividing the estate, however, the judgment used NAI's gross value. Posttrial proceedings replaced finding 64 with a new finding 64. The new finding 64 ruled NAI's value for property division purposes was its gross value because it would be unfair to reduce NAI's value by the decrease in the value of the stock. The new finding, however, did not explicitly address why the parties' agreement was ignored, or why appellant was not given credit for his nonmarital interest in the business.[1] Further, the trial

court did not find any "unfair hardship," which is required if appellant's nonmarital interest is to be awarded to respondent. See Minn. Stat. § 518.58, subd. 2 (1996) (allowing apportionment of nonmarital property only if not doing so would cause "unfair hardship"); Wolter v. Wolter, 395 N.W.2d 417, 420 (Minn. App. 1986) (reversing apportionment of nonmarital property where there was no finding of "unfair hardship"). On remand, the trial court shall adjust the value of NAI to reflect appellant's nonmarital interest therein and the amount by which the parties agreed the business' value should be decreased to reflect the reduced value of the stock.

Second, the findings regarding the Caxambas property are inconsistent. Apparently, (1) appellant spent either $100,000 or $200,000 improving the property; (2) the improvements increased its value by about $150,000; and (3) the trial court added $200,000 to the marital estate to account for the cost of the improvements. The property is part of the marital estate. Therefore, if the improvements cost $100,000, the value of the property increased by about $50,000 more than the improvements' cost and no amount should have been added to the estate. If, however, appellant spent $200,000 to improve the property, the improvements decreased the estate by about $50,000 and only that amount should have been added back to the estate. We remand for the trial court to specifically address whether appellant spent $100,000 or $200,000 improving Caxambas and to adjust the amount added to the marital estate accordingly.

Third, the trial court found appellant has a nonmarital interest in the homestead, but when dividing the marital estate, the court failed to adjust the homestead's value for this nonmarital interest. On remand, the trial court shall credit appellant for a nonmarital interest in the home.

Fourth, the trial court used appellant's IRA to determine how much property to award respondent, but then awarded respondent that amount of property and a share of the IRA. On remand, the trial court shall award appellant's IRA to appellant.

II.

Appellant challenges the requirement that he pay any back taxes the IRS finds due for 1994-97. The trial court ordered appellant to pay the taxes because (1) most of the debt accrued after the parties separated in February 1994; (2) only appellant had access to the tax records during the period in question; (3) some of the taxes are those of appellant's business; and (4) it would be unfair to require respondent to pay the taxes. The trial court's apportionment of tax debt was not an abuse of discretion. See, e.g., Berenberg v. Berenberg, 474 N.W.2d 843, 848 (Minn. App. 1991) (debts incurred by husband for his own purposes or after parties separated apportioned to him), review denied (Minn. Nov. 13, 1991); Maher v. Maher, 393 N.W.2d 190, 194 (Minn. App. 1986) (all debts apportioned to party with greater ability to pay); Tailor-Navsaria v. Tailor-Navsaria, 374 N.W.2d 805, 807 (Minn. App. 1985) (husband held responsible for entire tax deficiency).

III.

While Minn. Stat. § 518.552 (1996) lists the factors to be considered when setting maintenance, the basic issue is a balance of the recipient's ability to meet expenses against the obligor's ability to pay maintenance. Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982). Here, the trial court found (1) respondent worked for one year during the marriage; (2) respondent stopped working in 1988; (3) since 1988, respondent's field of employment has changed greatly; (4) to rehabilitate, respondent will have to work part time and take classes; (5) upon rehabilitation, respondent will earn $30,000-$35,000 annually; (6) the parties had a "luxurious" lifestyle; (7) respondent lacks an income from employment and property that would maintain the marital standard of living; (8) appellant's imputed net monthly income is $12,000; and (9) appellant has the ability to pay maintenance. Appellant has not shown that these findings are clearly erroneous or that the maintenance award is an abuse of the trial court's "wide discretion." See id. at 38 (absent an abuse of its "wide discretion," district court's maintenance decision "is final").

IV.

On appeal from a judgment, we may review decisions regarding removal of a judge. E.g., Roatch v. Puera, 534 N.W.2d 560, 563-64 (Minn. App. 1995). Because this trial court judge presided over part of the proceedings before appellant sought to remove him, appellant had to show actual prejudice to compel a removal. Minn. R. Civ. P. 63.03. Much of the prejudice claimed by appellant revolves around a June 1994 temporary restraining order. Given appellant's conduct, those proceedings and the trial judge's actions were a legitimate attempt to preserve what appeared to be a marital estate in danger of being dissipated by the transactions of a party to an acrimonious dissolution. See, generally, Peterson v. Knutson, 305 Minn. 53, 60, 233 N.W.2d 716, 720 (1975) (even if process can be shown to be "fundamentally erroneous[, that] does not necessarily show bias or abuse of power" by judge). The chief judge did not abuse his discretion by refusing to remove the trial court judge from this case. See Minn. R. Gen. Pract. 106 (after judge refuses to remove self, issue may be "reconsidered" by chief judge of district); Durell v. Mayo Foundation, 429 N.W.2d 704, 705 (Minn. App. 1988) (whether to remove judge for bias is discretionary with district court), review denied (Minn. Nov. 16, 1988).[2]

V.

The parties' costs, disbursements, and fees equal a quarter of their estate. The judgment awards respondent fees under Minn. Stat. § 549.21, subd. 2 (1996). This statute is "intended to punish individuals who abuse the legal process to harass opponents or delay resolution of a dispute." Anderson v. Medtronic, Inc., 382 N.W.2d 512, 515 (Minn. 1986). Given the record, the extensive findings detailing appellant's conduct relative to these proceedings, and appellant's admission at oral argument that he does not challenge the amount of the fee award, only whether it should be paid, we conclude that the trial court's award is not an abuse of discretion. State Bank of Young America v. Fabel, 530 N.W.2d 858, 863 (Minn. App. 1995), review denied (Minn. Jun. 29, 1995).

VI.

In summary, on remand, the same trial court judge who tried this case shall (1) reduce the value of the marital estate by the amount of appellant's nonmarital interests in the homestead and NAI, and credit appellant for those interests; (2) reduce the value of the marital estate by the amount the parties agreed to reduce the value of NAI due to the decrease in the value of the stock it held; (3) specifically address whether appellant spent $100,000 or $200,000 improving the Caxambas property, and allow no improvement-related adjustments to the marital estate if the former, but allow only a $50,000 improvement-related increase of marital estate if the latter; and (4) award appellant his IRA.

Upon crediting appellant and adjusting the value of the marital estate as described above, the trial court shall, as it did originally, divide the marital estate equally between the parties. That equal division shall, as it did originally, include an award to respondent of the Orono homestead. If respondent's half of the marital estate exceeds the value of the Orono homestead, the trial court shall award her either an interest in the Caxambas property or a judgment against appellant pursuant to finding 102 and conclusion 6 in the judgment. Because the record in this case is extensive, the trial court on remand shall not reopen the record and shall not accept additional submissions, written, oral, or otherwise, from the parties, their attorneys, or representatives.

Affirmed in part, reversed in part, and remanded with directions.

[1] We reject any claim by appellant that the trial court could not amend finding 64 because neither party asked the court to amend it in this fashion. See McCauley v. Michael, 256 N.W.2d 491, 499-500 (Minn. 1977) (on motion for amended findings, court may alter findings as necessary, even findings not sought to be amended).

[2] We also reject what is functionally appellant's request that we reconsider the special term panel's denial of his later request that this court remove the trial court judge. See Minn. R. Civ. App. P. 140.01 ("[n]o petition for rehearing shall be allowed in the Court of Appeals"); In re Estate of Sangren, 504 N.W.2d 786, 788 n.1 (Minn. App. 1993) (refusing to reconsider issue previously decided by special term panel because doing so would violate rule 140.01), review denied (Minn. Oct. 28, 1993).