This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-99-351

In Re the Matter of:

Neil D. Petrowske, petitioner,

Respondent,

vs.

Barbara Petrowske,

Appellant.

Filed June 22, 1999

Affirmed in part, reversed in part, and remanded

Klaphake, Judge

Chisago County District Court

File No. F4-95-642

Roger A. Christiansen, John M. Gearin, 600 Capital Centre, 386 N. Wabasha St., St. Paul, MN 55102-1308 (for respondent)

Patricia A. O'Gorman, Patricia A. O'Gorman, P.A., 8750 90th St. S., #207, Cottage Grove, MN 55016 (for appellant)

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

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

KLAPHAKE, Judge

Appellant Barbara Petrowske challenges the trial court's decision to split custody of the parties' two children, impute income to appellant, and deny maintenance, as well as the court's distribution of nonmarital and marital property. Because we conclude the district court properly applied the statutory custody analysis and did not err in imputing income to appellant, we affirm as to those issues. We reverse and remand to the district court to properly apply the law as it relates to the property distribution.

D E C I S I O N

The parties were married in 1981 and had two children. In April 1995 the parties separated and dissolution proceedings began. After trial, the district court ordered split physical custody of the children with custody of the daughter to appellant and custody of the son to respondent Neil Petrowske. The trial court determined respondent had $15,360 in nonmarital equity in the home due to his purchase and sale of land prior to the marriage. The trial court imputed income from appellant's housecleaning business in the amount of $20 per hour over a 35-hour work week and denied maintenance to both parties.

I.

A trial court has broad discretion in deciding the custody of children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). An appellate court will not reverse a custody determination unless the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). A trial court's findings will be sustained unless they are clearly erroneous. Id. Split custody decisions are considered unfortunate and are carefully scrutinized on appeal. Rinker v. Rinker, 358 N.W.2d 165, 168 (Minn. App. 1984). Nevertheless, great deference is given to the trial court in these matters. Linderman v. Linderman, 364 N.W.2d 872, 874 (Minn. App. 1985).

The trial court made extensive findings concerning the 13 factors related to the best interests of the children pursuant to Minn. Stat. § 518.17 (1998). The trial court's findings encompass 28 pages and incorporate the custody evaluator's report. There is evidence contained in the record to support each factor related to custody and the findings the court made based thereon are not clearly erroneous. The trial court did not abuse its discretion in splitting physical custody of the children.

II.

"The standard of review on appeal from a trial court's determination of a maintenance award is whether the trial court abused the wide discretion accorded to it." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). "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. "Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous." Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).

The trial court determined appellant was capable of making $20 per hour and working 35 hours per week cleaning houses. The trial court heard the testimony of appellant who claimed an hourly rate of $7-10 per hour. Appellant was earning $9-10 per hour with Merry Maids when she quit to start her own housecleaning business. Appellant submitted no evidence to the trial court documenting her income and earnings. See Minn. Stat. § 518.551, subd. 5b(1) (1998). The trial court properly inferred that appellant would not leave Merry Maids to earn less money. The trial court may impute income when it appears that a party is voluntarily underemployed. Id., subd. 5b(d). The trial court can infer an income based on the party's past work history, education, job skills, and positions for that type of work available in the community. Id. The trial court took into consideration appellant's previous earnings from Merry Maids and also the fact appellant started her own business, thereby allowing herself to keep a larger portion of the profits. Appellant's failure to submit earnings and income documentation permits the trial court to conclude that appellant is voluntarily underemployed.

The trial court's findings of fact relating to the imputed income were not clearly erroneous, as appellant put forth no credible evidence to refute the findings. Therefore, the trial court did not abuse its discretion in denying appellant maintenance.

III.

While this court need not defer to a trial court's legal conclusion about the marital or nonmarital nature of property, it must affirm the findings of fact supporting that conclusion unless they are clearly erroneous. Freking v. Freking, 479 N.W.2d 736, 739 (Minn. App. 1992).

A party must prove by a preponderance of the evidence the nonmarital nature of property. Wopata v. Wopata, 498 N.W.2d 478, 484 (Minn. App. 1993). Nonmarital property that is commingled with marital property can retain its nonmarital status. Schmitz v. Schmitz, 309 N.W.2d 748, 750 (Minn. 1981). Nonmarital property must be readily traceable to retain that status if it is commingled with marital property. Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997). Transferring nonmarital funds into a joint checking account does not erase the nonmarital nature of the funds. Nash v. Nash, 388 N.W.2d 777, 781 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).

Despite the fact respondent was not able to produce all records concerning his nonmarital interest in the homestead because of appellant's unwillingness to turn over those records, the trial court found his explanation of the purchase and sale of the various properties credible. However, the trial court did not fully credit respondent with all his nonmarital equity. The trial court found that those nonmarital funds realized through the sale of property held by respondent were converted into marital property because they were commingled with marital funds. As stated in Nash and in Danielson v. Danielson, 392 N.W.2d 570, 572 (Minn. App. 1986), nonmarital assets do not lose their nonmarital status when placed in a joint account. If the party claiming the funds are nonmarital can trace the funds, they retain their nonmarital status. Further, in tracing the funds, the party is not required to produce the serial numbers of the bills used. Nash, 388 N.W.2d at 781.

The trial court misapplied the law when it determined that the records shown by respondent were satisfactory to trace the nonmarital property, but then determined the property lost its nonmarital status because it had been put into marital accounts. The issue of the nonmarital property distribution is remanded to the trial court for a proper application of the law and a determination of the proper amount of nonmarital interest respondent has in the homestead.

Affirmed in part, reversed in part, and remanded.