Charles Mayer Goldstein, Goldstein Law Office, 601 Carlson Parkway, Suite 1050, Minnetonka, MN 55305 (for appellant)

Considered and decided by Toussaint, Chief Judge, Shumaker, Judge, and Foley, Judge.[*]

Appellant Penny Moller alleges the judgment dissolving the parties' marriage (a) undervalued the family business; (b) should have awarded her permanent maintenance and additional attorney fees; and (c) should not have apportioned to respondent Dean Moller's debts paid by the business. Because the findings support the district court's rulings on all issues except the maintenance duration, we modify the maintenance award to make it permanent but otherwise affirm.

The parties dispute the related questions of whether respondent's 1997 salary was reasonable and whether the business is a service or manufacturing business. More than 80% of the work done by the parties' metal-polishing business is for a single client. That client provides its own metal parts to the business and the business charges the client only for polishing those parts. Noting these circumstances, respondent's expert testified that (a) appellant's expert made respondent's salary look artificially high by treating the parties' business as a manufacturing business and comparing respondent's salary as a percentage of the business's gross sales (where gross sales did not include the cost of goods sold) to other manufacturing businesses where gross sales did include the cost of goods sold; and (b) the best way to determine the reasonableness of respondent's salary is to compare the actual dollar amounts of respondent's salary with the actual dollar salaries for service businesses having a limited cost-of-goods-sold component in gross sales. Viewing the record in the light most favorable to the district court's findings and considering that the district court concluded that respondent's expert was "more persuasive" than appellant's, the district court did not clearly err in: (1) adopting a $245,000 valuation of the parties' business; (2) classifying the business as a service business; and (3) concluding respondent's 1997 salary to be reasonable.

Appellant argues that: (1) the record conflicts regarding the amount of time respondent spends working for his girlfriend's business; and (2) the valuation of the parties' business should be higher because respondent is spending time working for a competitor. Respondent's expert valued the business as of a time before the competing business formally came into existence. Also at trial, respondent's expert indicated that any time respondent spent at his girlfriend's business had a nominal impact on the amount of time he spent at the parties' business. By adopting this valuation, despite the trial testimony regarding the amount of time respondent allegedly worked for his girlfriend's competing business, the district court implicitly concluded that respondent was credible in testifying that he only spent a limited amount of time working at his girlfriend's business.

The district court found that $20,000 should be added to the value of the parties' business to account for work respondent referred to his girlfriend's business. Appellant asserts that respondent's referrals of business to his girlfriend's business require a $60,000 adjustment to the value of the parties business for capitalization purposes. Viewed in the light most favorable to the district court's findings and in light of the trial testimony regarding respondent's ability to expand the parties' business the record supports the district court's findings.

Appellant alleges the district court abused its discretion by reducing her interest in the business by 20% to account for the tax impact on respondent of his having to buy appellant's interest from her. Respondent's expert testified a 25% tax discount of the business's value was proper if respondent withdrew funds from the business to pay appellant. Appellant argues that because the judgment does not require this method of payment, basing a tax discount on it is speculative.[1] See Miller v. Miller, 352 N.W.2d 738, 744 (Minn. 1984) (holding that while whether to consider tax consequences of property division is discretionary with district court, court should not speculate). The record supports the district court's findings that (a) any payment respondent makes to appellant will have to come from the liquidation of assets or income; (b) respondent lacks assets to liquidate; and (c) any earnings made by respondent while working at the business would be taxed. Thus, respondent will be paying appellant with after-tax earnings from the business. Also, the 20% adjustment is less than the 25% adjustment respondent's expert suggested. Appellant has not shown the 20% tax adjustment to be clearly erroneous.

Appellant alleges the respondent should be required to file a financing statement and to provide her with financial statements for the business. Because appellant did not move for a new trial, the propriety of requiring respondent to secure his obligations is not properly before this court. See Tyroll v. Private Label Chem. Inc., 505 N.W.2d 54, 56 (Minn. 1993) (holding that, absent a new-trial motion, review is limited to whether the evidence supports the findings and whether the findings support the conclusions and the judgment).

Uncertainty about a maintenance recipient's ability to become self-supporting requires an award of permanent maintenance. Minn. Stat. § 518.552, subd. 3; Nardini v. Nardini, 414 N.W.2d 184, 198 (Minn. 1987); see Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn. 1997) (discussing standard for permanent maintenance and associated case law). The record reveals that appellant's monthly expenses exceed appellant's average net monthly income by more than $400, before considering taxes on appellant's maintenance award. While appellant's property settlement includes monthly property settlement payments and a retirement account, she is not required to use the principal of these funds to meet monthly expenses. Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985). The district court found appellant is capable of making more than she currently makes. The record lacks support for a finding that appellant could find a job with the income potential described by the district court that also will fit her parenting duties. Even if appellant earned the amount the district court found her capable of making, she would have a monthly surplus of less than $20 before taxes and after maintenance expires, a deficit of almost $1,200 would occur. The record reveals that at best, appellant's current ability to support herself and the parties' children is uncertain. Therefore, we modify her maintenance award to make it permanent.

Whether to award conduct-based attorney fees is discretionary with the district court. Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992). The district court found appellant did not seek fees with clean hands. Lack of clean hands when seeking conduct-based fees is a proper basis for limiting or denying such an award. See Kitchar v. Kitchar, 553 N.W.2d 97, 103-04 (Minn. App. 1996) (affirming denial of conduct-based fees where, among other things, both parties' conduct contributed to expense of case), review denied (Minn. Oct. 29, 1996). This case does not present the "rare case" where we will increase the district court's conduct-based fee award.

Appellant alleges the disparity in the parties' incomes entitles her to additional fees. Whether to award need-based fees is discretionary with the district court. Richards v. Richards, 472 N.W.2d 162, 166 (Minn. App. 1991). The district court concluded that appellant's conduct precludes an award or fees. The district court's findings support a refusal to award need-based fees. See Minn. Stat. § 518.14, subd. 1 (stating district court "shall" award need-based fees if, among other things, recipient needs fees for a good-faith assertion of rights).[2]

Here, respondent's accountant testified the business does not treat the payments as business expenses, and that, as a result the payments constitute an undocumented shareholder loan to respondent from the business which respondent must repay with interest in a "reasonable time" or "the loan" will be charged to him as income for tax purposes. Also, respondent's expert considered the payments as unrelated to the business when he valued the business. Thus, the amounts in question were not considered business expenses when the business was valued and the payments are treated either as income to respondent on which he will be taxed or are deemed loans to respondent that he will have to repay. In either case, respondent is responsible for the payments and the apportionment of the associated debts to respondent in the property division has a basis in fact and principle.

Affirmed as modified.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Wife cites unpublished opinions to support her argument. Unpublished opinions are of limited value in deciding an appeal. See Minn. Stat. § 480A.08, subd. 3(c) (1998) ("[u]npublished opinions of the court of appeals are not precedential") (emphasis added); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993) (stating dangers of mis-citation and unfairness associated with use of unpublished opinions and that while persuasive, "[t]he legislature has unequivocally provided that unpublished opinions are not precedential").

[2] The cases appellant cites to support her argument are distinguishable. They pre-date the 1990 amendment of Minn. Stat. § 518.14, subd. 1, to include the current test for awarding need-based attorney fees. Also, they lack findings that the party seeking fees acted improperly.