Opinion
No. C2-02-235.
Filed July 30, 2002.
Appeal from the District Court, Ramsey County, File No. F5-99-2139.
John P. Van Valkenburg, (for appellant)
John C. Gunderson, (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant argues that the district court abused its discretion by (1) understating her needs, overstating respondent's expenses, and awarding appellant maintenance in an amount less than her needs when she cannot work and respondent has the ability to pay maintenance in an amount equal to her needs; (2) terminating respondent's obligation to provide health insurance for appellant after five years; and (3) inequitably dividing the parties' marital property by omitting various items of property from portions of the division, resulting in those items being double-counted or not counted at all. We reverse and remand for findings consistent with this opinion.
FACTS
Appellant Renee Jenson and respondent Leslie M. Jenson were married on May 16, 1970, and raised three children who are now adults. During this time, appellant did not work outside the home, but received her bachelor's degree and advanced degrees from the University of Minnesota. Both parties were politically active; respondent was elected to the city council in Vadnais Heights, and appellant ran unsuccessfully for the state senate.
In 1998, appellant began a consulting business, which is now incorporated as Free Agent Association, Inc. (Free Agent). She is the president and sole stockholder of this corporation.
In July 1998, the parties purchased a triplex on Grand Avenue in St. Paul that consisted of two apartment units and office space. The parties withdrew $45,000 from respondent's 401k plan, provided by respondent's employer, as the down payment on this property. Respondent's income is being withheld to repay this loan.
The parties separated in early August 1998, and appellant moved into one of the apartments at the Grand Avenue property. She leased the other apartment for approximately $800 per month and the office space for four months. She subsequently moved Free Agent into the office space.
From August 1998 until the temporary hearing on September 14, 1999, respondent supported appellant and paid Free Agent business expenses. Appellant commingled her personal and business expenses. Appellant was never paid a salary from Free Agent and has incurred losses since its inception.
In August 1998, the parties secured a $42,000 mortgage on their homestead, of which $3,000 was spent to improve the parties' home and $9,000 to improve the Grand Avenue property. The remaining $30,000 was unaccounted for, and the district court presumed it to have been spent by appellant on her business. The parties have liquidated several assets to pay marital debts and debts and expenses related to Free Agent.
On October 1, 1999, the district court issued its order for temporary relief, awarding appellant temporary possession of the Grand Avenue property. Appellant was also awarded all rental income from that property and ordered to pay all encumbrances on that property. An addendum to that order, issued October 4, 1999, awarded appellant temporary spousal maintenance of $2,000 per month.
On April 4, 2000, respondent moved the court to withdraw the mortgage payments on the Grand Avenue property directly from his accounts and deduct the amount from the temporary maintenance so as to ensure that the mortgage was not in arrears. Appellant represented that the payments would be made and the motion was withdrawn. But in August 2000, foreclosure proceedings were commenced on the Grand Avenue property due to appellant's failure to make mortgage payments; payments had ceased in May 2000. Using proceeds from the sale of marital assets, respondent paid all arrearages and penalties totaling over $11,000.
After a two-day trial in October 2000, the district court ordered the listing of the Grand Avenue property for sale. The court found respondent's net monthly income to be $5,674, after allowing for a 10% pension deduction, and his reasonable monthly expenses to be $3,268.67. The court found that appellant had no income from Free Agent, and that any income she had from the Grand Avenue property would cease when it was sold. The court also found appellant's reasonable monthly expenses to be $2,413.
With regard to spousal maintenance, the court made specific findings on the factors listed in Minn. Stat. § 518.552, subd. 2 (2000) as relevant to an award of permanent spousal maintenance. The court noted that the property division afforded appellant substantial marital property, but found that due to a severe mental illness, appellant is unable to work and will not qualify for social security disability benefits because of an insufficient work history. The court specifically noted that appellant's illness almost certainly will not improve, but rather will worsen over time. The court found that appellant's desire and intent to continue Free Agent, in light of the fact that it had no significant assets, no clients, and had never produced income, is a manifestation of her mental illness. The court determined that appellant cannot meet her own financial needs, and that it is uncertain that she will ever be able to do so. The court noted that respondent has supported appellant and has paid all of her business expenses since the parties' separation, and continues to have the ability to assist appellant with maintenance.
The parties' marriage was dissolved, and appellant was awarded $2,000 in what the court described as permanent spousal maintenance. Respondent was ordered to provide for appellant's medical insurance for five years. All maintenance would end upon respondent's retirement. The court awarded the parties' homestead to respondent, divided the net proceeds from the planned sale of the Grand Avenue property, awarded appellant all rights in Free Agent, and divided the balance of the parties' personal property. This appeal followed.
DECISION I.
Appellant first challenges the division of marital property. "District courts have broad discretion over the division of marital property, and we will not disturb the division on appeal absent a clear abuse of discretion." Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn.App. 2000) (citation omitted), review denied (Minn. Oct. 25, 2000). On appeal, this court will "affirm the trial court's division of property if it had an acceptable basis in fact and principle even though this court may have taken a different approach." Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984) (citations omitted).
Upon dissolution of a marriage, the district court is to make a just and equitable division of marital property. Minn. Stat. § 518.58 (2000). Appellant claims the district court (1) failed to carry over its finding regarding a payment necessary to even out the property division to its conclusions of law; (2) failed to award appellant one-half of respondent's most recent bonus, despite its clear intent to do so; (3) failed to include a computer in the valuation of respondent's property; (4) deducted the $41,000 remaining on the 401k plan loan both from the pre-division valuation of the plan and from the final property settlement; (5) failed to deduct certain loans and other debts from appellant's total assets; (6) deducted the costs of sale of the parties' homestead from the valuation; and (7) erred by using the wrong date of valuation to determine the value of a savings/retirement account cashed in by respondent. In addition, appellant claims that two of the parties' joint bank accounts were never divided equally, as was provided in the temporary award.
Respondent first counters generally that the district court considered that appellant concealed or disposed of marital assets and retained rental income. These facts, however, are not relevant. With regard to the rental income, indeed appellant was supposed to use that income to help pay the mortgage on the Grand Avenue property. She did not, and respondent was forced to pay the arrears. However, the amount respondent paid was specifically deducted from appellant's property award.
Respondent next notes that appellant has not included several assets in her discussion of the property award (half the proceeds of the sale of the Grand Avenue property, $5,000 in attorney fees, Free Agent's tax loss and telephone equipment, and miscellaneous personal property that was not appraised). But all of those assets stand apart from the complained-of errors. The proceeds from the Grand Avenue property were divided equally, and the attorney fee payment was considered in the valuation of the property. The court specifically found that Free Agent's tax loss, as a corporate loss, could not reduce appellant's taxes, and while it might reduce taxes on Free Agent's future earnings, the district court made it abundantly clear that Free Agent, currently operating as a manifestation of appellant's mental illness, had virtually no assets and should not be counted on for any future earnings. To the extent it had assets, those assets had already been included in appellant's property valuation.
We next address appellant's allegations of specific errors.
A. Technical Errors
With regard to appellant's first three claims, we note the difficulty of matching the district court's findings to its order because the district court did not explain or reveal its mathematical calculations. However, we agree with appellant that the district court failed to carry over to its conclusions of law, its finding regarding a payment necessary to even out the property division.
We believe that the district court intended to fashion an equal property division. Appellant's valuation assumes the court intended to award appellant one-half of respondent's most recent bonus, as well as to give respondent $2,000 credit for a computer in his possession. The district court's findings reflect that intent. The court found that "[r]espondent has a computer at his house valued at $2,000," and that "the net amount of the May, 2000 bonus should be divided equally: $11,457 to each party." While review of the record would be made easier had the district court explained its math, we are satisfied that the district court intended an equal division, and that the court inadvertently failed to make its order consistent with its findings. This should be corrected on remand.
B. 401k Loan
As noted, the district court deducted $41,000 from the 401k plan, both from the pre-division valuation of the plan and from the valuation of respondent's assets. This effectively transformed $41,000 of the parties' marital property into respondent's property — a $20,500 bonus for respondent. Respondent argues this was appropriate, considering the money was used to purchase the Grand Avenue property. But money received from the sale of the Grand Avenue property was divided equally. Therefore, the court's treatment of the 401k loan provided respondent with $41,000 more in assets than appellant. On remand, this should be corrected.
C. Appellant's Debts
Appellant challenges the district court's use of debts incurred by appellant to calculate her property award. The court's broad discretion in the division of property extends to the division of debt. Servin, 345 N.W.2d at 757. Unlike with the 401k loan, these debts were not converted into marital property that could be divided (like the Grand Avenue property). Rather, appellant solely benefited from these debts. Accordingly, there was no abuse of discretion in the consideration of this marital debt.
D. Homestead Valuation
Appellant also challenges the valuation of the parties' homestead, a determination that is not set aside unless clearly erroneous. Quinlivan v. Quinlivan, 359 N.W.2d 276, 281 (Minn.App. 1984). The court initially valued the property at $260,000. It then amended the order, increasing the value of the property to $278,720, but deducted the costs of sale "because respondent does not intend to sell the property." After deducting $18,720 as costs of sale, the court again arrived at the $260,000 figure for purposes of dividing the property.
If the property were to be sold, it would seem logical to apportion the costs of a sale equally. But where liabilities are speculative or contingent, they generally should not be considered in determining the net marital estate. Nolan v. Nolan, 354 N.W.2d 509, 513 (Minn.App. 1984), review denied (Minn. Dec. 20, 1984). Here, the liability is clearly contingent on the sale of the home, and neither party intends to sell this property. Therefore, the costs of a sale are speculative. The net effect of this order is that respondent is allowed to live in and own a home that is practically valued at $18,720 more than its stated value for purposes of property division. The district court's order should be modified accordingly.
E. Division of Marital Accounts
Appellant further argues that the district court erred in calculating the value of a savings/retirement account cashed in by respondent. We will not reverse a district court's valuation of an asset unless it is "clearly erroneous on the record as a whole." Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975) (citations omitted); see also March v. March, 435 N.W.2d 569, 572 (Minn.App. 1989). We do not require the district court to be exact in its valuation of assets; "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) (citing Hertz, 304 Minn. at 145, 229 N.W.2d at 44).
Appellant claims that the district court valued the assets only as of the temporary hearing date, rather than using a date just prior to trial. The district court specifically found that respondent had provided an accounting of all marital funds. However, the valuations seem to be derived from the information provided to the court as of the temporary hearing date. Although district courts have broad discretion in dividing property and setting reasonable valuation dates, Desrosier v. Desrosier, 551 N.W.2d 507, 510 (Minn.App. 1996), Minn. Stat. § 518.58 requires that marital assets be valued as of the day of the initially scheduled prehearing settlement conference, unless the parties agree upon a different date, or unless the court makes specific findings that another date of valuation is fair and equitable. The court here made no such findings. On remand, the court should use the pretrial date for valuation or explain why another date is fair and equitable.
Finally, appellant argues that two of the parties' joint bank accounts were never divided equally, as was ordered. The temporary award ordered appellant to transfer these accounts into the sole name of respondent. Respondent was ordered to account for these funds "for purposes of later division of assets." Because these accounts were not included in the final property division, they were effectively converted into respondent's assets. Although respondent again quotes the district court's finding that respondent had provided a full accounting, this does not explain the court's failure to mention these accounts when dividing property.
On remand, the district court shall address the above-referenced errors in the property division and, where necessary, make findings to support the property division. The court may review the entire property division if consideration of the above-discussed issues requires modification of other portions of the award to effect an equitable division, making specific and thorough findings to ensure a complete and equitable division of assets.
Respondent has moved to strike certain tax-related documents from the record. Since the entire matter is being returned to the district court, these motions are denied.
II.
Appellant next argues that the district court erred by failing to provide for her reasonable monthly expenses in the maintenance award. Because we have reversed the district court's property division, the district court must, on remand, recalculate the maintenance award. That noted, appellant raises issues with regard to the maintenance award that merit discussion irrespective of the property division.
This court reviews a district court's maintenance award under an abuse of discretion standard. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997); Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). For this court to conclude the district court abused its broad discretion with respect to an award of spousal maintenance, the district court's fact-findings must be "against logic and the facts on [the] record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted). "Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous." Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn.App. 1992) (citation omitted).
The district court may order spousal maintenance if it finds that the spouse seeking maintenance either
(a) lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, * * * or
(b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment[.]
Minn. Stat. § 518.552, subd. 1(a), (b) (2000). The court shall award maintenance "in amounts and for periods of time * * * as the court deems just." Id., subd. 2. In making this determination, the statute lists eight factors the court must consider.
(a) the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party's ability to meet needs independently * * *;
(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party's age and skills, of completing education or training and becoming fully or partially self-supporting;
(c) the standard of living established during the marriage;
(d) the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;
(e) the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;
(f) the age, and the physical and emotional condition of the spouse seeking maintenance;
(g) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and
(h) the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party's employment or business.
Minn. Stat. § 518.552, subd. 2.
With regard to these factors, the court found that the parties had a "high moderate" standard of living, and that over the course of a 30-year marriage, appellant made substantial non-income-producing contributions that benefited respondent's political and private employment careers. The court found that appellant was awarded substantial marital property but, despite her extensive education, has no ability to support herself due to a severe mental illness that, in all likelihood, will only worsen as time passes. The court's findings with regard to appellant's employability are clear: she is presently unemployable, and "[i]t is almost certain that her illness will not improve but will instead grow worse." The court speculated that if appellant's illness stabilizes, she might be able to work in an entry-level position with a starting wage as high as $10 per hour. The court found it "extremely unlikely" that appellant will improve enough for her to make use of her considerable education, ability, and intelligence. The court continued, noting the apparent nexus between appellant's desire to continue with Free Agent, and her mental illness, finding her efforts with regard to Free Agent "are not employment but a manifestation of her mental illness."
A. Cash Maintenance
"Because maintenance is awarded to meet need, maintenance depends on a showing of need." Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (citation omitted). Need is often determined by balancing a recipient's income from employment or other available resources against the recipient's reasonable monthly expenses. Kemp v. Kemp, 608 N.W.2d 916, 921 (Minn.App. 2000). Here, the court's unchallenged finding is that appellant's reasonable monthly expenses are $2,413. Nevertheless, the court only awarded her $2,000 in pre-tax maintenance. The court made no findings with regard to how appellant should make up the resulting deficit.
Respondent argues that the court "considered substantial marital property apportioned to appellant." But the court made no findings that appellant will generate income from the property award. The court awarded appellant marital property valued at $214,906.50--$122,000 of this is the value of appellant's share of respondent's 401k plan. Appellant was found to have already been paid $24,323.52 of marital assets when respondent paid her business debts. Of the remaining total, the court identified approximately $39,000 as a cash payment. Of this total, $9,000 has already been spent, and appellant has not accounted for $30,000. The court made no findings as to the amount of income that this marital property might produce, or even whether how much of it might be expected to produce income. In determining the amount and duration of a spousal maintenance award, courts normally do not expect spouses to invade the principal of their investments in order to satisfy their monthly financial needs. Fink v. Fink, 366 N.W.2d 340, 342 (Minn.App. 1985). Without the ability to work, and without sufficient maintenance and income to meet her necessary expenses, appellant will be forced to invade her principal.
Although respondent correctly points out that the court found that appellant failed to account for $30,000 in marital assets, this asset seems especially unlikely to produce income. The court presumed that it had been spent on Free Agent, and, as the court later noted, Free Agent had no assets beyond a phone system. Further, while respondent argues that the district court considered assets such as appellant's previous rental income and expenditures on behalf of her business, this is not supported in the court's order and, regardless, appears irrelevant. That appellant received rental income, or spent money on behalf of her business, does not mean that she currently has income-producing assets.
Respondent suggests that the district court implicitly found that appellant could make up the difference through part-time employment. But the district court's findings make clear that it saw appellant as unemployable in her current condition, which is not likely to improve.
Respondent counters by suggesting that, despite the substantial uncertainty with regard to appellant's ability to be self-supporting, the court intended to create an incentive for appellant to rehabilitate herself. But there were no findings to this effect. Furthermore, our statutes err on the side of awarding permanent maintenance where a spouse's ability to be self-supporting is in doubt. See Minn. Stat. § 518.552 ("Where there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for modification."). Regardless of whether it was the district court's tacit intent to create such "incentives," the court cannot avoid the legislative preference for stability over incentives in questionable cases by deliberately underfunding a spouse whose ability to produce any income is in serious doubt.
Need is not the only consideration in making a maintenance award. Rather, in determining the type or amount of maintenance, courts are to balance the financial needs of the obligee and the obligee's ability to meet those needs, against the financial ability of the obligor. Erlandson, 318 N.W.2d at 39-40. Here, the district court found that respondent has the ability to pay $2,000 in permanent spousal maintenance. But respondent, by his own admission, has the ability to pay more. Although respondent argues that the $404 he admits is available is insufficient to meet the total claimed deficit, this calculation is unbalanced. Much of the gap that respondent perceives results from his failure to include the tax benefit of the maintenance award to him while including the tax liability to appellant. Just as appellant's deficiency increases, respondent's surplus increases when the tax consequences are considered.
B. Retirement Savings
Appellant also challenges the district court's decision to exclude retirement savings from her reasonable monthly expenses. While the district court's valuation of respondent's income includes a 10% pension deduction, retirement savings are not included in appellant's reasonable monthly expenses. Furthermore, under the terms of the district court's order, respondent's spousal maintenance obligation expires upon his retirement. If appellant's maintenance is insufficient to provide for her current expenses, not considering retirement, it will be all the more insufficient once respondent retires. The court made no findings regarding the sufficiency of appellant's $122,000 share of the 401k retirement plan for her retirement, or what, if any, help might be available from Social Security. On remand, the district court must make adequate provisions for appellant's retirement needs by either making additional findings regarding the source of her retirement income, or recalculating her reasonable monthly expenses in consideration of her need for reasonable retirement savings.
We note the inconsistency between the district court's conclusion that permanent maintenance is appropriate and the inclusion of this "sunset" provision. Because the district court's findings with regard to the necessity of permanent maintenance are fully supported in the record, we strike the portion of the district court's award that indicates that respondent's obligations will cease upon his retirement. Appellant's needs are unrelated to respondent's retirement and, if respondent's ability to meet those needs decreases upon his retirement, it may amount to a substantial change in circumstances rendering the terms of the maintenance order unreasonable or unfair. See Minn. Stat. § 518.64, subd. 2 (2000).
C. Health Insurance
Appellant also challenges the temporary nature of the district court's maintenance award with regard to health insurance. The district court ordered respondent to continue to provide family medical insurance for five years after the date of the judgment and decree, but made no findings regarding appellant's ability to acquire health insurance coverage after this five-year period. In calculating respondent's expenses, the court factored in the cost of maintaining this coverage, and respondent testified that his employer does not limit the time he can keep appellant on his family coverage. The court neither provided for respondent's decreased expenses, nor appellant's increased expenses after the five-year window.
Respondent again argues that appellant will be able to work in the future, arguing that the court "considered extensive evidence showing that appellant was capable of securing employment in the future." But, as previously noted, regardless of the testimony received, the court found that it is highly unlikely that appellant will be able to secure employment in the future. This finding is supported by the record. Even if the district court were speculating that appellant might be able to work at some point in the future, given her mental illness, the court made no findings regarding a reasonable amount of future imputed income. It is therefore clear from the district court's order and the evidence in the record that appellant's prospects for future employment are not certain enough to warrant placing the burden of proving a change of circumstances on appellant in five years, when her health care coverage runs out.
Respondent's argument that appellant may be able to work in the future presumes that if she is not so able, she will be able to move for a modification under Minn. Stat. § 518.64 (2000). Under the terms of the current order, this is a doubtful proposition at best. First, if the district court's order were allowed to stand, and appellant remained unemployable, respondent might successfully argue against a substantial change in circumstances warranting a modification of the order, because neither her needs nor expenses had changed, but only the expiration of respondent's obligation, which was contemplated, indeed intended, by the district court's order. See id. (permitting modification of maintenance orders upon showing of, inter alia, substantially increased or decreased earnings or need of party). Second, appellant's mental illness might conceivably hinder her in seeking to modify the maintenance award prior to its expiration. Finally, we note that appellant's ability to request a modification of maintenance is limited by the court's jurisdiction. Under the district court's order, all of appellant's maintenance may be cut off upon respondent's retirement — and with it, the district court's jurisdiction. Loo v. Loo, 520 N.W.2d 740, 745 (Minn. 1994) (holding that, once maintenance payments under dissolution decree end, court is without jurisdiction to modify maintenance). It is improper for the district court to allow respondent to determine unilaterally the duration of the court's jurisdiction, especially when the dependent party suffers from a mental illness that is expected to worsen over time.
It is indeed a strange result in the ongoing development of the law of domestic relations if, as appellant's mental condition deteriorates, her access to medical care can be curtailed by an arbitrary selection of five years, after a 30-year marriage. Respondent has sufficient assets and income to provide for appellant's needs, including her health insurance. Health insurance is not a luxury in our society and where, as here, the district court findings clearly establish appellant's need for assistance in procuring and maintaining such insurance, it is incumbent upon the district court to fashion appropriate relief to protect appellant.