Richard D. Goff, Richard D. Goff and Associates, 3908 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

D. Patrick McCullough, McCullough, Smith, Wright & Kempe, P.A., 905 Parkway Drive, St. Paul, MN 55106-1098 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

Appellant James G. Weinmeyer contends the district court abused its discretion by ordering him to pay $2,500 per month in maintenance secured by life insurance of $150,000, and by concluding he dissipated marital assets. Respondent Kristin L. Weinmeyer claims the district court erred in its handling of appellant's retirement account, in apportioning marital debt, and in not granting her motion for attorney fees. We affirm.

There must be a clearly erroneous conclusion that is against logic and the facts on record before this court will find that the trial court abused its discretion.

Rutten, 347 N.W.2d at 50.

Appellant contends respondent failed to show financial need because her gambling over the 20 months during which the dissolution was pending demonstrates that respondent does not need maintenance. The record does not support appellant's contentions.

The district court found respondent needed maintenance based on evidence concerning her expenses and income. See Maeder v. Maeder, 480 N.W.2d 677, 680, (Minn. App. 1992) (that wife spent money carelessly did not deprive her of entitlement to maintenance for her reasonable needs), review denied (Minn. Mar. 19, 1992). Appellant does not challenge this evidence, and the budget figures did not include gambling-related expenses or debts. Appellant's assertion that respondent's income leaves a shortfall of only $815 per month is not supported by evidence in the record.

Because there is evidence in the record supporting the district court's findings with respect to respondent's expenses and income, the district court's decision was not clearly erroneous or against logic and the facts in the record. We conclude the district court was within its discretion in awarding maintenance of $2,500 per month.

Appellant argues that the order for five years of spousal maintenance is an abuse of discretion because the evidence indicates it will only take two years for respondent to earn her R.N. degree. We disagree. The district court concluded that respondent "will need spousal maintenance for a period of five years to enable her to complete her education, pay off debts, and become fully self-supportive." Thus, the court determined that even if respondent completed her education in two years, spousal maintenance for five years was necessary. The record supports the district court's conclusion regarding respondent's debts, including substantial attorney fees for the cost of this litigation. While we may have fashioned the maintenance award differently, we cannot conclude the district court abused its discretion by awarding five years of maintenance payments. See Rohling v. Rohling, 379 N.W.2d 519, 524 (Minn. 1986) (reinstating district court's maintenance award after this court reversed and noting district court maintenance awards are to be affirmed if they have a basis in fact and principal, even if an appellate court would have decided differently).

Finally, the district court's finding that "[t]he only impediment to [respondent] becoming self-supporting is her gambling habit" does not mandate reversal of the maintenance award. As noted above, the record supports the district court's finding that respondent had financial need independent of her gambling habit. We conclude the district court was within its discretion to order five years of maintenance at $2,500 per month.

Citing a case from another jurisdiction, appellant contends the district court erred in requiring insurance without additional factual support in the record. See Michel v. Michel, 31 Conn. App. 338, 341, 624 A.2d 914, 915 (1993) (trial court erred in ordering husband to maintain life insurance in the absence of evidence of (1) the availability of such insurance, (2) the cost of such insurance, and (3) the husband's insurability). We disagree. Minnesota law gives district courts broad discretion in maintenance issues. Only when a district court's order is clearly erroneous and against logic and the facts on the record will a district court decision be overturned. Appellant has not shown that either the district court's failure to address respondent's potential windfall should appellant die during the five-year maintenance period or the district court's decision not to limit the insurance to only cover maintenance arrearages constitute an abuse of discretion.

A. Dissipation

If a party in a dissolution action has dissipated marital assets, the party is to be accountable for the dissipation unless the assets were used to meet necessary living expenses. Minn. Stat. § 518.58, subd. 1a (1998). Spending assets to meet normal financial obligations and maintain the parties' marital property does not constitute dissipation. Volesky v. Volesky, 412 N.W.2d 750, 753 (Minn. App. 1987).

Appellant contends the district court erred in concluding that only $36,922 of the $107,000 he withdrew in 1996 and 1997 was spent for valid marital purposes. Appellant claims that the other approximately $70,000 was not dissipated but was spent on necessary living expenses including additional tax arrearages from the 1993-1995 period, and payment of his 1996 taxes. We disagree.

The record supports the district court's conclusion that appellant's withdrawal of funds from the joint SEP account for his 1996 living expenses constituted dissipation. Also, contrary to appellant's assertion, the record supports the district court's finding that only $36,922 of the SEP withdrawals was used to pay the couple's 1993-1995 tax liabilities. Further, the district court did not abuse its discretion in finding appellant dissipated the parties' assets by withdrawing funds from a joint account to pay appellant's 1996 individual taxes, especially where appellant did not seek court permission before withdrawing the funds.

By notice of review, respondent claims that $22,500 in retirement funds, which were earned in 1996, should be added into the SEP account. We disagree. The $22,500 was earned in 1996 and the parties were separated throughout 1996. Further, their 1996 tax liabilities were separate, and the $22,500 was not paid until 1997. We conclude the district court's decision to award the entire $22,500 to appellant was not against logic and the facts in the record.

B. Tax consequences of SEP withdrawal

Appellant contends that even if the district court properly found that $36,922 was spent on the parties' 1993-1995 tax liabilities, the court abused its discretion by failing to consider the tax consequences of appellant's withdrawal from the SEP account. We disagree.

The district court made a specific finding that appellant

received the primary benefit from the withdrawal of these funds to pay for his living expenses and taxes and will be solely responsible for any penalties or tax consequences.

Because there is evidence in the record that appellant had to pay the taxes to retain his attorney's license, there is support for the district court's conclusion that appellant received the primary benefit from paying the taxes.

Appellant argues that even if he received the primary benefit from the tax payment, the district court still abused its discretion by not splitting the tax consequences of the withdrawal. See Berthiaume v. Berthiaume, 368 N.W.2d 328, 334 (Minn. App. 1985) (holding that it is within the district court's discretion to consider the tax consequences of a property award). We disagree. Berthiaume does not require the district court to split tax consequences between the parties. Rather, Berthiaume states that, given the evidence in that case, it was not an abuse of discretion for that district court to order those parties to split the tax consequences. Id. Here, we cannot say the district court's order was clearly erroneous and against logic and the facts in the record. We therefore conclude the district court was within its discretion in refusing to order the parties to split the taxes and penalties involved with early withdrawal from the SEP account.

Respondent contends the district court erred in finding that some debts incurred by the parties were nonmarital in nature. We disagree. The district court's apportionment of debt is adequately supported. The record indicates there was $18,884 in marital debt in May of 1996. During the course of litigation, $12,638.03 in payments were made on the debt. Thus, the district court's determination that $6,253.97 in marital debt remained is not clearly erroneous. Further, respondent cites no authority requiring that debt payments must retire new debt before old debt. We conclude the district court's order is not against logic and the facts in the record.

Respondent argues the district court erred in not ordering appellant to pay a greater portion of the parties' debts because appellant has greater resources. We disagree. Respondent cites no authority requiring the party with greater resources to pay a greater proportion of the parties' debt. Moreover, the district court took the parties' ability to pay into account in apportioning the debt and awarding maintenance. We conclude the district court did not abuse its discretion.

The record indicates that both parties have incurred substantial attorney fees. Although the record indicates an income disparity between the parties, the district court reduced this disparity by awarding respondent $2,500 per month in maintenance. We conclude the district court's determination that neither party could afford to pay the other's attorney fees is not clearly erroneous.

Attorney fee awards may also be based on the impact of a party's behavior on the cost of litigation. Holder v. Holder, 403 N.W.2d 269, 271 (Minn. App. 1987). Respondent contends appellant should pay her attorney fees because appellant caused the high costs of the litigation. We disagree. Respondent has failed to show that motions brought by appellant were frivolous or that appellant's focus on respondent's gambling habit lacked any merit. The district court specifically stated that the issues involved in this case were complicated. Further, respondent's allegation that appellant told her he intended to drag out the litigation was unsupported at trial. We conclude the district court did not abuse its discretion in refusing to award conduct-based attorney fees. Finally, because the claims raised by appellant on appeal are not frivolous or without merit, we deny respondent's request for attorney fees on appeal.

Affirmed.