Opinion
No. C6-96-504.
Filed October 15, 1996.
Appeal from the District Court, Washington County, File No. F7943807.
Terry L. Mitchell, Glenn P. Bruder, (for Respondent)
Martin L. Swaden, (for Appellant)
Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994)
Unpublished Opinion
This dissolution case involves issues of property, child support, visitation, and attorney fees. On appeal from an amended judgment and decree, Terry Dennis Schmitz argues the trial court abused its discretion by: (1) awarding nonmarital property to his former spouse; (2) setting child support; (3) deciding visitation questions; and (4) awarding attorney fees to his former spouse. Schmitz's former spouse requests an enlargement of her lien on the marital homestead and additional attorney fees. We affirm.
Decision
Trial courts enjoy broad discretion in dividing property, setting child support, establishing visitation rights, and awarding attorney fees. See Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986) (property division); Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984) (child support); Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978) (visitation rights); Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977) (attorney fees). A trial court's determination of these issues will not be reversed absent a clear abuse of that discretion. Id. We must affirm a trial court's findings of fact unless they are clearly erroneous. Minn.R.Civ.P. 52.01.
I.
Schmitz argues the trial court abused its discretion in awarding a $75,097 lien to his former spouse on the marital homestead, part of two Piper Jaffray and Hopwood accounts, and the 1988 Cadillac because the property division invaded nonmarital property. However, the trial court made a finding of unfair hardship. See Minn. Stat. ___.58, subd. 2 (1994) (allowing the trial court to apportion up to one-half of nonmarital property to either spouse upon a finding of unfair hardship). The record demonstrates Schmitz's former spouse: (1) was not employed during the marriage; (2) incurred debt in order to train herself for future employment; (3) lacked sufficient means to support herself and the parties' child; and (4) incurred significant attorney fees due to this litigation. In addition, Schmitz is unable to pay reasonable child support because he is unemployed due to "stress." Given these facts, the trial court's finding of undue hardship is not clearly erroneous. See Fredericksen v. Fredericksen, 368 N.W.2d 769, 775 (Minn.App. 1985) (upholding an invasion of nonmarital interests due to unfair hardship).
Our inquiry under Minn. Stat. ___.58 subd. 2, is whether the trial court apportioned half or less of the nonmarital property. See Roel v. Roel, 406 N.W.2d 619, 622 (Minn.App. 1987) (where the record justifies a finding of unfair hardship, the court acts within its discretion in apportioning nonmarital property). The record supports the trial court's determination that the division did not improperly invade Schmitz's nonmarital interests. As to the marital homestead, the record shows: (1) the parties treated the homestead as if it were jointly owned; (2) in purchasing the original homestead outright, Schmitz contributed 91% of the purchase price with nonmarital funds; and (3) the marital homestead's fair market value is $177,500, free of encumbrances. Even if the entire value of the appreciated second homestead could be attributable to Schmitz's nonmarital contribution, the lien award of $75,097 would fall far short of the statutory maximum allowed in unfair hardship cases.
As to the division of the Piper Jaffray accounts and the automobile, the record shows the trial court did not invade nonmarital interests. Under these circumstances, we conclude the trial court did not abuse its discretion in dividing the parties' property.
II.
The trial court ordered Schmitz to pay $270 per month in child support, based on his dividend income of $1,079.16 per month. Schmitz argues the trial court abused its discretion because his future dividend income likely will decrease. However, it is undisputed Schmitz: (1) lives in an unencumbered house valued at $177,500; (2) drives a collector Corvette automobile; (3) receives money regularly from his parents; and (4) has investment account assets in excess of $75,000. Given these facts, we cannot say the trial court abused its discretion in setting Schmitz's child support obligation or requiring Schmitz to pay $20 monthly towards the $50 per month day-care costs incurred by his former spouse.
III.
Schmitz also argues the trial court's findings of fact and conclusions of law are inconsistent regarding supervision of his visitation rights. We disagree. The findings of fact and conclusions of law complement each other and require Schmitz to: (1) enter a therapeutic treatment program regardless of whether he is willing to admit that abuse occurred; (2) commence supervised visitation even if he chooses not to participate in the Domestic Abuse Project; and (3) complete a satisfactory program of therapy, as determined by his therapist, before unsupervised visitation will begin.
Pursuant to Minn. Stat. ___.165 subd. 2 (1994), the trial court appointed a guardian ad litem to represent the child's interests. Given the order for protection, the findings by the Child Protection Services of Washington County, and the testimony of Schmitz's expert witness, we cannot say the trial court abused its discretion in determining visitation issues.
IV.
Schmitz further argues the trial court erred in determining he has the financial ability to make a $2,000 contribution to the attorney fees incurred by his former spouse. In contrast, Schmitz's former spouse argues the award of partial fees was an abuse of discretion in light of Schmitz's wrongful conduct and her lack of financial resources. The record demonstrates:(1) Schmitz has the financial ability to contribute to his former spouse's attorney fees; and (2) Schmitz's former spouse lacks sufficient property to support herself and the parties' child. Given the parties' financial situations and our limited standard of review, we cannot say the trial court's award was an abuse of discretion.