Opinion
No. C0-97-332.
Filed October 21, 1997.
Appeal from the District Court, Hennepin County, File No. 191920.
Elizabeth B. Bowling, A. Larry Katz, Katz Manka, Ltd., (for respondent).
John R. Wylde, (for appellant).
Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
In this marital dissolution proceeding appellant husband challenges the distribution of marital property and the permanent maintenance award. We affirm.
FACTS
Appellant John Edward Parker and respondent Barbara Josephine Parker separated in 1987, after 17 years of marriage. In 1993, respondent filed for divorce.
During the marriage, the parties enjoyed a comfortable standard of living. They owned several rental properties in addition to their home, vacationed regularly, and spent money generously on clothing, entertainment, and dining out.
Respondent has a high school diploma and one semester of post-secondary education. During the marriage, she worked primarily as a homemaker. After the parties' separation, respondent began working a manufacturing job. Her net monthly income at the time of the divorce was $892.66. The trial court found that given respondent's education, work history, experience, and age, she is appropriately employed, and her income is not expected to increase significantly in the near future.
Appellant is a real estate salesperson. He worked for David C. Bell until 1983 when he purchased one of Bell's offices and conducted business as Bell Real Estate Inc. In 1993, he sold Bell Real Estate Inc. to Burnet Realty, and he began working for Burnet. During most of the marriage, he earned $100,000 or more gross commissions per year.
Around the time of the parties' separation, appellant stopped his prior practice of paying estimated taxes, and $100,000 in back taxes accumulated. To pay the back taxes, 25% of appellant's gross income goes to the IRS pursuant to levy.
In 1995, appellant's gross commissions were $81,735. From this amount, the trial court deducted $14,436.25 in business and other expenses to determine that appellant's gross income was $67,299. The court then deducted 40% of the gross income for current taxes and concluded that appellant's 1995 net income was $40,379, or $3,365 per month. As of August 1996, appellant's gross income minus business expenses was $53,000. The trial court extended this level of income to the end of 1996 to determine that appellant's 1996 gross income would be $79,500. The court again deducted 40% of the gross income for current taxes and concluded that appellant's net 1996 income would be $47,700, or $3,975 per month.
While the dissolution was pending, the parties lost five real estate parcels, including the marital homestead where respondent was living, in foreclosure proceedings. The total net equity in these properties was $168,314.
The trial court ordered a judgment of $90,157 against appellant. This amount reflected half the equity in the properties that were lost in foreclosures ($84,157) and half the value of stock that appellant sold while the dissolution was pending ($6,000). Respondent was also awarded other property and spousal maintenance of $1,439 per month. Appellant was made solely responsible for paying the $100,000 owed to the IRS.
DECISION I.
A trial court has broad discretion in dividing marital property. Rutten v. Rutten , 347 N.W.2d 47, 50 (Minn. 1984). Absent an abuse of discretion, the trial court's decision must stand. Id. at 51.
[An appellate court] will and must affirm the decision made if it has an acceptable basis in fact and principle even though we might have made a different disposition of the problem.
Rohling v. Rohling , 379 N.W.2d 519, 522 (Minn. 1986), (quoting Bollenbach v. Bollenbach , 285 Minn. 418, 426-27, 175 N.W.2d 148, 154 (1970)).
Appellant argues that while a court may consider dissipated funds in dividing a marital estate, it was an abuse of discretion to award respondent one-half of the equity in the foreclosed properties because the equity is a non-existent asset. We disagree.
The general rule is that if a party in a dissolution has dissipated marital assets, that party shall be accountable for that dissipation unless the assets are justifiably consumed to meet necessary living expenses of the parties or their mutual dependents.
Volesky v. Volesky , 412 N.W.2d 750, 752 (Minn.App. 1987). Dissipate means "[t]o destroy or waste, as to expend funds foolishly." Black's Law Dictionary 473 (6th ed. 1990).
The trial court found that appellant's testimony that he did all he could to save each foreclosed property lacked all credibility. In concluding that appellant dissipated the equity the parties had in the foreclosed properties, the trial court found that appellant "singlehandedly, irresponsibly, and inexplicably caused or passively allowed" the foreclosures of the five properties, "without exercising reasonable prudence in any of the transactions." The court also found that each of the foreclosures occurred without respondent's knowledge or involvement. The record supports these findings.
Appellant did not use the equity in the properties to meet necessary living expenses; the equity was simply wasted. The trial court did not abuse its broad discretion by holding appellant accountable for the real estate equity he dissipated. See Volesky , 412 N.W.2d at 752 (court may hold party accountable for dissipating marital assets unless assets are justifiably consumed to meet necessary living expenses of parties or their dependents).
Appellant also argues that there is no evidence in the record to support the determination that the marital equity in the real estate was $168,314. We will not overturn the trial court's valuation of an asset unless it is clearly erroneous. Balogh v. Balogh , 356 N.W.2d 307, 310 (Minn.App. 1984). The trial court's method of evaluation must be affirmed if it has an acceptable basis in fact and principle even though a different approach may have been taken. Id . at 312.
The trial court's valuation of the real estate is supported by the record. Respondent provided an analysis of each piece of property, and the court made detailed findings regarding the fair market value and the outstanding mortgage amount for each piece of property. Because the method of valuation used by the court had an acceptable basis in fact and principle, the trial court's valuation was not clearly erroneous.
Appellant contends that it was unfair for the trial court to make him solely responsible for the $100,000 debt owed to the IRS. The apportionment of marital debt is treated as a property division and reviewed under that standard. Justis v. Justis , 384 N.W.2d 885, 889 (Minn.App. 1986), review denied (Minn. May 29, 1986). A trial court is not required to apportion marital debts, but is only required to meet the just and equitable standard of property division. Id. at 888-89. The trial court has broad discretion in its determination of the appropriate division of marital tax debts and will be overturned only when its discretion is abused. Rudd v. Rudd , 372 N.W.2d 851, 855 (Minn.App. 1985), rev'd in part on other grounds , 380 N.W.2d 765 (Minn. 1986).
Around the time of the parties' separation, appellant stopped paying estimated taxes, although his cash flow was sufficient to pay the taxes, and allowed $100,000 in taxes to accumulate. It is not clear what appellant did with the money that should have been used to pay taxes, but there is no evidence that respondent benefited from the failure to pay taxes. The trial court acted within its discretion in making appellant solely responsible for paying the tax debt. See Filkins v. Filkins, 347 N.W.2d 526, 529 (Minn.App. 1984) (where party incurs debt for his or her own purposes, it is appropriate to make the debt the responsibility of the incurring party).
The trial court's marital property division was "just and equitable" under the criteria in Minn. Stat. § 518.58, subd. 1 (1996). When a longterm marriage is dissolved, an equal division of the wealth amassed through the joint efforts of the parties is appropriate. Miller v. Miller , 352 N.W.2d 738, 742 (Minn. 1984). The judgment and other property awarded to respondent reflected an equal division of the wealth accumulated by the joint efforts of both parties during the marriage.
II.
Trial courts exercise broad discretion in deciding whether to award maintenance and in determining its amount and duration. Zamora v. Zamora , 435 N.W.2d 609, 611 (Minn.App. 1989). A trial court's determination of spousal maintenance will not be reversed absent an abuse of discretion. 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.
Appellant argues that the permanent maintenance award was not based upon the applicable statutory factors. He also contends that the trial court failed to consider his ability to pay maintenance. We disagree.
Minn. Stat. § 518.552, subd. 2 (1996), sets forth eight factors for the trial court to consider when determining the amount and the duration of maintenance, but the basic considerations are the financial need of the spouse receiving maintenance, the ability to meet that need, and the financial condition of the spouse providing the maintenance. Novick v. Novick , 366 N.W.2d 330, 334 (Minn.App. 1985) (citing Krick v. Krick , 349 N.W.2d 350 (Minn.App. 1984)). If uncertainty exists as to whether a permanent award is needed, a court must order a permanent award, leaving it open for future modification. Minn. Stat. § 518.552, subd. 3 (1996).
The trial court made detailed findings on each of the eight factors listed in Minn. Stat. § 518.552, which all supported an award of permanent maintenance. The court also stated in its findings that:
nothing in this decree shall be construed to mean that this maintenance supports Petitioner at the standard of living established during the marriage, rather the Court is aware that these payments are inadequate to do so, but has found that Respondent lacks the ability to pay a more appropriate level of maintenance at this time.
This conclusion demonstrates that the court not only considered the financial needs of respondent, but also analyzed appellant's ability to pay maintenance.
The trial court determined that respondent's reasonable and necessary monthly expenses were $3,361 and her net monthly income was $892.66, which left a $2,468 monthly shortfall. The trial court determined that appellant's reasonable and necessary monthly expenses were $3,567 and his net monthly income was $3,975, which left a $408 monthly surplus. The court set the maintenance amount by first granting respondent the $408 surplus. The court then found that "given the length of the marriage, it would be unfair to allow [appellant] to meet all of his own needs and let [respondent] experience such a significant shortfall." Accordingly, the court divided equally the remaining $2,060 shortfall in respondent's budget and awarded respondent $1,030 additional monthly maintenance, making a total $1,438 monthly maintenance award.
The trial court's findings of fact indicate a $1,438 monthly maintenance award, but in its conclusions of law the court awarded $1,439 per month. We will not address this de minimis difference and affirm the amount stated in the conclusions of law.
The trial court did not abuse its discretion in awarding maintenance. Its conclusion was not against logic and the facts on record.
III.
Respondent has requested attorney fees on appeal. An appellate court has considerable discretion in deciding whether to award attorney's fees incurred during an appeal. Solon v. Solon , 255 N.W.2d 395, 397 (Minn. 1977).
"Attorney fees may be awarded in dissolution cases where the appeal was frivolous or in bad faith." Dabrowski v. Dabrowski , 477 N.W.2d 761, 766 (Minn.App. 1991). Attorney fees shall be awarded on appeal if respondent does not have adequate resources to present a good faith defense on an appeal and appellant has the financial resources to pay respondent's attorney fees. Minn. Stat. § 518.14, subd. 1 (1996).
Appellant's arguments on appeal were not frivolous or in bad faith, and, given the monthly budget shortfalls experienced by both parties, we cannot conclude that appellant has the financial resources to pay respondent's attorney fees. We, therefore, decline to award attorney fees on appeal.
Affirmed.