Opinion
No. C5-01-1031.
Filed February 5, 2002.
Appeal from the District Court, St. Louis County, File No. FX95600215.
Wesley U. Saline, (pro se respondent)
Joanne M. Saline, (pro se appellant)
Considered and decided by Toussaint, Chief Judge, Hanson, Judge, and Foley, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
During dissolution of the parties' marriage, respondent Wesley Saline was awarded certain property that was in appellant Joanne Saline's possession. The decision whether to award appellant maintenance was reserved. In this appeal from subsequent proceedings, we decline to consider evidence appellant presents for the first time on appeal. Also, because appellant failed to show that the district court abused its discretion in either ruling, we affirm the district court's denial of her request for maintenance and the requirement that appellant pay to have certain property appraised.
FACTS
Pretrial orders, a 1997 judgment dissolving the parties' marriage, and posttrial orders all directed appellant to turn over to respondent personal property allegedly in her possession. The judgment also reserved appellant's claim for maintenance. Whether she provided respondent with the property is disputed; proceedings have been acrimonious. In October 2001, appellant sought maintenance and respondent sought delivery of the personal property. After a hearing, the district court denied appellant's request for maintenance. It also (1) ordered appellant to provide respondent with any of the property in question still in her possession and to pay respondent's attorney $500 for an appraisal of the property's value as of the dissolution; and (2) stated that respondent was entitled to a judgment for the value of any missing property and any appraisal fees paid exceeding appellant's $500 payment. On appeal from these rulings, appellant asks this court to consider medical records submitted for the first time on appeal. Both parties are pro se.
DECISION I.
The record on appeal is limited to that presented to the district court. Minn.R.Civ.App.P. 110.01; see Kelly v. City of Minneapolis, 581 N.W.2d 372, 379 (Minn.App. 1998) (striking documents outside record on appeal and references to those documents in party's argument on appeal), rev'd on other grounds, 598 N.W.2d 657 (Minn. 1999). Exceptions to this rule generally involve evidence that is documentary, conclusive, and used to affirm the district court. Plowman v. Copeland, Buhl Co., 261 N.W.2d 581, 583-84 (Minn. 1977). Here, the medical records appellant asks this court to consider are documentary, not conclusive. Among other things, they lack a stated limitation on her activities. Also, appellant asks that the records be used to reverse the district court. The records do not fit the Plowman profile of evidence that can be considered for the first time on appeal and we will not consider them under that exception to the general rule.
The court has accepted documentary evidence that was "critical" to identification of the issues presented for the first time on appeal. Rigwald v. Rigwald, 423 N.W.2d 701, 704 n. 5 (Minn.App. 1988). Here, however, it was understood in district court and is understood on appeal that appellant's alleged need for maintenance was at least partially a function of her health. Therefore, the records appellant is asking this court to consider are not critical to understanding the issue presented on appeal and we decline to consider the records under Rigwald.
II.
Absent an abuse of its "wide discretion" regarding maintenance, "the trial court's determination is final." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982) (citation omitted). While Minn. Stat. § 518.552 (2000) lists factors to be considered in setting the amount and duration of maintenance, no single factor is dispositive and the issue is basically the recipient's need balanced against the obligor's financial condition. Erlandson, 318 N.W.2d at 39. Here, in denying appellant's request for maintenance, the district court found (1) appellant has not undertaken a "significant" employment search "during the five years since [the parties'] separation"; (2) appellant testified to various physical problems "but provided no current medical evidence to support her claim that she is unable to be gainfully employed"; (3) appellant "was not a credible witness with respect to many aspects of her testimony; the court does not find her self-limitation of employment capacity to be credible without detailed medical and vocational support"; (4) appellant's motion for maintenance "was [made] only after [respondent's] obligation to pay [child] support ended"; and (5) respondent's reasonable monthly living expenses for himself and the parties' child are $2,385 and exceed his net monthly income by $385.
Appellant alleges that the medical records she has submitted for the first time on appeal show why she is unable to work. Because those records will not be considered on appeal, appellant lacks an explanation for her lack of employment. Moreover, respondent's status as physical custodian of the children, combined with the fact that his reasonable monthly expenses exceed his net monthly income, show that he lacks the ability to pay maintenance. Appellant has not shown that the district court has abused its discretion in denying her request for maintenance.
III.
Appellant alleges that she does not have the property at issue because some items never existed, some items were sold or thrown out, and some items are already in respondent's possession. The items in question are listed on exhibits 11 and 12. Appellant's allegations are addressed by the district court's findings that (1) "[respondent] testified with detailed accuracy as to the items he never received" and (2) "[appellant's] testimony as to the items in question on Exhibits 11 and 12 is not credible and rejected by the court." Appellate courts defer to district court credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). Appellant also alleges that an inventory of items returned to respondent was approved by the district court but that respondent later changed that inventory. Respondent denies this and the record before this court does not include a written inventory of property returned to respondent.
Appellant also alleges that she lacks the ability to pay for the appraisal costs. This assertion is addressed by the fact that the appraisal would not be necessary if she produced the property in a timely fashion and possibly by the ability appellant might have to pay the appraisal costs if she had not self-limited her income.