Opinion
No. C0-01-1678
Filed June 4, 2002.
Appeal from the District Court, Dakota County, File No. F1997934.
Patricia A. O'Gorman, (for respondent)
Kent B. Gravelle, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
In this appeal from a judgment and an amended judgment and from an order denying his motion for a new trial, appellant Marvin Edward Dearborn argues that the district court (a) abused its discretion by awarding custody of the parties' child to respondent Shannon Rae Dearborn; (b) understated the value of the parties' home; and (c) abused its discretion by denying his motion for a new trial. Respondent challenges the valuation of the home and her nonmarital interest in it and argues that the district court abused its discretion by granting appellant overnight visitation with the child and by awarding appellant his entire pension. We affirm the custody award, the overnight visitation, and the property valuation. We remand for findings that explain the pension award and the distribution of respondent's nonmarital interest in the home.
DECISION
1. Our review of a custody determination is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). A district court's findings will be sustained unless they are clearly erroneous. Pikula, 374 N.W.2d at 710.
Appellant argues that the district court abused its discretion by awarding respondent sole physical custody of the parties' child despite evidence that respondent abused legal and illegal drugs and that these drugs affect her ability to parent. Appellant also argues that the district court clearly erred by finding that respondent has overcome her dependence on prescription drugs.
A friend of the parties testified that on one occasion in the spring of 1998, respondent smoked marijuana with her, and respondent admitted during cross-examination that she used cocaine before the marriage but never during the marriage. Appellant does not cite any evidence that respondent continued to use illegal drugs at the time of trial or that illegal drug use affected respondent's parenting ability. The evidence of illegal drug use does not demonstrate that the district court abused its discretion by awarding respondent sole physical custody.
Respondent testified that she has taken various medications for migraine headaches since she was 14 years old and felt she was becoming dependent on medications five or six months before the parties separated on March 11, 1999. However, respondent consulted with her physician, Dr. Bonello, and worked with him to gradually reduce her use of prescribed medications. At the time of trial, respondent was taking Zoloft for migraine headaches.
A custody-evaluation report prepared by Dr. Donna Cairncross stated:
According to [respondent], she became dependent upon prescription medications. * * * She reports that she worked with her physician, Dr. Bonello, and was able to cease her dependence on the medication. She acknowledges that it was very difficult to stop, however, reports that she has done so. She is currently on some pain medication and is also on Zoloft.
* * * *
* * * [Respondent] acknowledges that she has [had problems with prescription medications in the past], however, according to her current physician, [respondent] does not appear to have problems in that regard at this time.
The district court found:
[Appellant] has raised concerns regarding [respondent's] dependence on prescription drugs. This Court finds that although [respondent] was dependent upon prescription drugs in the past, she has overcome her dependence on prescription drugs. [Respondent's] current prescription drug use does not interfere with her ability to parent the minor child.
Appellant argues that this finding is clearly erroneous because there is no evidence that respondent had overcome her dependence on prescription drugs. Appellant contends that the only evidence that respondent had made progress dealing with her drug dependency (other than respondent's own testimony) is the statement by Dr. Bonello that Cairncross referred to in the custody-evaluation report. And this evidence, appellant contends, is only the equivocal statement that appellant "does not appear to have problems [with prescription medications] at this time," and does not indicate that respondent is no longer dependent on prescription drugs.
Although the language of the district court's finding is more definite than the language in the custody-evaluation report, the finding is not clearly erroneous.
Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.
Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted). "If there is reasonable evidence to support the district court's findings, we will not disturb them." Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999) (citation omitted).
The district court's finding reflects its determination about respondent's drug dependency at the time of trial. The custody-evaluation report reasonably supports the finding that respondent did not have a problem with prescription medications at the time of trial. The cautious language in the custody-evaluation report also suggests that respondent could have additional problems in the future. But the possibility that conditions will change in the future does not make the finding about respondent's current condition clearly erroneous.
Appellant argues that under Minn.R.Evid. 703, the district court could not consider Dr. Bonello's statement to support its finding that respondent had overcome her dependency on prescription drugs. But appellant did not object to Bonello's statements when the custody-evaluation report was admitted during Cairncross's deposition or when the transcript of Cairncross's deposition, to which the custody-evaluation report was attached as an exhibit, was admitted at trial. Consequently, the district court did not consider whether Bonello's statement was properly before it. Because appellant made no objection to Bonello's statement in the district court, we will not consider this issue on appeal. See Thayer v. Am. Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982) (reviewing court must generally consider " only those issues that the record shows were presented and considered by the trial court in deciding the matter before it").
2. Appellant argues that the district court abused its discretion by indicating in chambers that Wendy Matz would not be allowed to testify. But the record does not indicate that appellant attempted to call Matz as a witness or made an offer of proof regarding the substance of Matz's testimony. Under Minn.R.Evid. 103(a)(2),
Error may not be predicated upon a ruling which * * * excludes evidence unless a substantial right of the party is affected, and * * *
* * * the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Because appellant made no offer of proof, and the substance of Matz's testimony is not apparent, appellant did not preserve this issue for review.
3. Both parties argue that the district court abused its discretion in admitting evidence of value and erred by finding that the market value of the homestead is $110,000.
Exactitude is not required of the trial court in the valuation of assets in a dissolution proceeding; it is only necessary that the value arrived at lies within a reasonable range of figures.
Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979) (citation omitted).
The assessed value of the property is $98,200. Respondent's mother testified that the property is worth $104,000. Appellant testified that the home is worth $125,000. Appellant based his opinion on homes in the neighborhood that were listed for sale. One of these homes was listed for $127,900, but sold for $121,500, and another was listed at $126,900. The first home has three bedrooms and a partially finished basement, and the second has three bedrooms and a finished basement. The parties' home has two bedrooms and an unfinished basement.
Appellant contends that the only possible basis for the court's valuation is the testimony of respondent's mother that the value of the home is $104,000, and there is no foundation for this opinion because the record does not demonstrate that respondent's mother is one of the fee owners of the property. This argument lacks merit. The district court found that "[t]he title to the home is in the name of [respondent], [respondent's] mother and [respondent's] father." Trial exhibit 17 contains copies of the closing documents for the sale of the home. The first document in this exhibit is a deed for the home that designates respondent and both of her parents as grantees. This deed demonstrates that respondent's mother is one of the fee owners of the property.
[T]he owner of property is presumptively acquainted with its value and may testify thereto, and may as a rule testify as to its value without any particular foundation being laid.
Bury v. Bury, 416 N.W.2d 133, 136 (Minn.App. 1987) (quotation omitted). Respondent's mother's testimony demonstrates that she was familiar with the home and attended open houses for other homes for sale in the neighborhood to get ideas about how to finish off the basement of the home. The presumption that she was acquainted with the value of the home was not overcome.
Respondent argues that appellant's testimony about listing prices of other homes in the neighborhood is not relevant because the other homes are not comparable to the parties' home. But other evidence described the differences between the homes, and the court was able to consider the impact the differences would have on valuation. See County of Ramsey v. Miller, 316 N.W.2d 917, 919 (Minn. 1982) (in a condemnation proceeding, courts may consider any competent evidence if it legitimately bears upon the market value).
The district court's valuation of the home is within a reasonable range of figures and, therefore, the valuation is not clearly erroneous.
4. Appellant argues that the district court erred by denying his motion for a new trial. Because the district court has the discretion to grant a new trial, we will not disturb the decision absent a clear abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie Co., 454 N.W.2d 905, 910 (Minn. 1990). Because none of appellant's claims of error at trial have merit, the district court did not abuse its discretion by denying appellant's motion for a new trial.
5. The district court has broad discretion in deciding visitation questions, and its decision will not be reversed absent an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). Respondent argues that because neither Cairncross, the court-appointed custody evaluator, nor Dr. Sandra Hewitt, a licensed child psychologist, recommended overnight visitation for two consecutive weekends, the district court abused its discretion by granting appellant overnight visitation for two consecutive weekends.
On April 21, 2000, following an overnight visit with appellant, the parties' child was taken to the doctor by her grandmother for intestinal problems. The doctor recommended no overnight visitation because the child had a significant problem with an intermittent medical condition. Respondent was instructed on how to treat the child, and did so. On May 4, 2000, following an overnight visitation with appellant, the child again had problems and was treated in a hospital emergency room. After the incident, Hewitt noted that the child's problem occurred during visitation with appellant, that the cause was unknown, and that the overnight visits were not developmentally appropriate. Hewitt believed overnight visitation had been initiated too early and recommended no overnight visitation until the child is three years old and that overnight visits be assessed at that time. The court suspended appellant's overnight visitation. The child's problem has not recurred since the overnight visits stopped and the treatments began. In the custody-evaluation report, Cairncross recommended visitation with appellant on alternating weekends from Friday at 3:00 p.m. until Sunday at 7:30 p.m.
The district court found:
There is no conclusive evidence as to the cause of the minor child's * * * problems. However, the minor child's problem has improved since receiving medication.
The district court awarded appellant weekend visitation for two weekends from Saturday at 10:00 a.m. until Sunday at 5:00 p.m., followed by one weekend with respondent.
We conclude that the district court did not abuse its discretion in granting appellant overnight visitation. Although there was no recommendation that appellant have visitation for two consecutive weekends, Cairncross recommended that appellant be granted visitation for two consecutive weekend nights, and the district court granted overnight visitation for only one night at a time. Also, when the court granted the overnight visitation, the child was almost four years old, which was consistent with Hewitt's recommendation that there be no overnight visitation until the child was three years old.
6. Respondent argues that the district court erred by failing to award any of appellant's Public Employees Retirement Act (PERA) pension to her in its amended judgment. In the initial judgment, the district court awarded respondent half of appellant's pension. In a motion for amended findings, respondent asked the court to offset her half of the pension against appellant's lien against the homestead because, in order to obtain a qualified-domestic-relations order (QDRO), PERA requires the court to enter a finding that there is insufficient liquid or readily liquid marital property to provide for an equitable distribution. See Minn. Stat. § 518.58, subd. 3 (2000) (distribution of marital assets). By awarding appellant his entire pension and reducing his lien against the homestead by the same amount, the court could accomplish a somewhat similar result without using a QDRO.
The district court amended the judgment to award appellant his entire pension, but it did not make a corresponding reduction in the amount of appellant's lien. Because it is not apparent why the district court would find merit in only one half of respondent's requested change, and because the district court did not make any findings that explain the change in the total distribution of the marital estate, the findings are inadequate for review. We, therefore, remand for findings that explain the change in the pension award.
7. Respondent argues that the district court erred in valuing her nonmarital interest in the homestead and in failing to award her the increase in the value of her nonmarital interest. The district court findings identify a nonmarital amount that respondent contributed at the time the homestead was purchased. But we cannot determine whether the court considered or disregarded the value of this nonmarital interest when it determined the amount of appellant's lien against the homestead. Therefore, we also remand for additional findings that explain whether the district court intended to award respondent a nonmarital interest in the homestead, and if the court intended to award a nonmarital interest, findings that explain the valuation of the interest.