In Re the Marriage of: Timothy John Mans, petitioner, Respondent, vs. Brenda Kaye Mans, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-95-2591

In Re the Marriage of:
Timothy John Mans, petitioner,
Respondent,

vs.

Brenda Kaye Mans,
Appellant.

  Filed September 3, 1996
Affirmed in part, reversed in part,remanded, and motion denied
Holtan, Judge

Pine County District Court
File No. F5-94-120

Jeffrey P. Hicken, Jensen, Hicken & Scott, P.A., 300 Anoka Office Center, 2150 Third Avenue, Anoka, MN 55303 (for Respondent)

Douglas G. Sauter, Paul A. Kaster, Douglas G. Sauter & Associates, P.A., 199 Coon Rapids Boulevard, Suite 108, Coon Rapids, MN 55433 (for Appellant)

Considered and decided by Short, Presiding Judge, Schumacher, Judge, and Holtan, Judge. 1

U N P U B L I S H E D O P I N I O N

HOLTAN , Judge
Appellant Brenda Kaye Mans challenges the district court's order addressing child support, spousal maintenance, division of property, and attorney fees. We affirm in part, reverse in part, and remand the case to the trial court.
FACTS

Respondent Timothy Mans and appellant Brenda Mans married in 1980, when respondent was 23 years old and appellant was 18 years old. The parties are the parents of a daughter and twin sons. Respondent worked as a mechanic for utility construction companies after he and appellant were married. His employment caused the parties to make several moves throughout the western United States. Appellant worked sporadically as a waitress from 1981 to 1983, but then stayed home to care for the parties' daughter. The parties returned to Minnesota in 1987 because their daughter was about to begin school. The parties mutually decided that respondent would start his own business. Respondent became a self-employed mechanic, doing business as "Tim's Repair" since 1988. The parties' U.S. joint income tax returns show the following adjusted gross income history: 1989--$7,382; 1990--$21,545 (included $9,016 in appellant's wages); 1991--$18,551 (included $2,585 in appellant's wages); 1992--$32,831; 1993--$25,744. Respondent's income for the first eight months of 1994 totalled $31,693.
In 1989, the parties purchased a 40-acre parcel of land from respondent's parents for $6,480 and executed a promissory note and mortgage. Respondent's parents also deeded the parties a separate 120-acre tract of land. The parties built their home on the 40-acre property, and a commercial building where respondent operates his business is also located on the site. This property was encumbered by mortgages that were eventually paid off with a loan obtained through refinancing the property. The parties also owed respondent's parents $15,000 in loans as of December 1993. Respondent borrowed an additional $8,500 from his father after March 20, 1994.
In September 1993, respondent consulted an attorney about dissolving his marriage. Subsequent to the consultation, respondent liquidated his 1992 Polaris Indy 440 snowmobile, his IBEW pension, a 1978 Ford wrecker, and his Ste-Rog account. Respondent served appellant with a petition for dissolution on January 13, 1994. The trial court adopted this date for valuing the property. On July 22, 1994, a temporary order was issued setting child support at $450 per month and denying an award of spousal maintenance. On February 1, 1995, the court raised the temporary child support obligation to $800 per month and set spousal maintenance at $400 per month.
At trial, Wayne Nelson, a licensed public accountant employed by "Tim's Repair" as a bookkeeper, testified that, in a business such as respondent's, the best way to calculate gross receipts is to take an average income over a number of years. Appellant presented evidence showing that respondent withdrew between $3,000 and $4,000 per month for his own use from the business draw account. In calculating respondent's net monthly income for purposes of child support, the trial court averaged the parties' adjusted gross income over the six-year period in which respondent was self-employed. The court determined that respondent's net monthly income was $1,913.14 and accordingly set child support at $669.60 per month pursuant to the applicable guidelines. The court found that a majority of respondent's $1,853.44 in monthly expenses were paid by "Tim's Repair," but did not include this amount in respondent's net monthly income.
The trial court received two appraisals addressing the value of the parties' real property. Respondent's appraiser concluded that the total value of the property equalled $89,000. Respondent testified that the Pine County assessor assessed the home and 40 acres at $85,000. Appellant's appraisers valued the entire property at $155,430. The trial court determined that the total market value of the property equalled $116,000.
In calculating the parties' net marital estate, the trial court included a $15,000 liability to respondent's parents, as well as a $30,005 debt to them, for a combined debt of $45,005. The trial court valued the parties' net marital estate at $63,092.68, and awarded appellant half that amount, $31,546.34, less $5,000 for attorney fees paid on behalf of appellant and excess child support paid by respondent. Thus, appellant's total property settlement totalled $26,546.34.
Appellant is a licensed cosmetologist and has worked part-time off and on over the last several years. At the time of trial, appellant worked part-time as a cosmetologist at Swirl and Curl in Pine City, earning a net income of approximately $350 per month. The trial court determined that appellant had the need and respondent had the ability to pay for spousal maintenance. The court ordered respondent to pay $600 for spousal maintenance per month until the parties' youngest children reached the age of attending school full-time, $500 per month for the next two years, $400 for another two years, and then $300 per month, to continue until appellant's remarriage, her death, or until otherwise ordered by the court.
The trial court denied appellant's motion for attorney fees. Appellant now challenges the district court's amended order addressing child support, spousal maintenance, division of property, and attorney fees.
  D E C I S I O N
Appellant contends that the trial court erred by averaging respondent's adjusted gross income over a six-year period in calculating his net monthly income for purposes of child support. We disagree.
A trial court's decision regarding child support will not be reversed unless clearly erroneous, and an appellate court will not reverse a trial court's determination of net income if it has a reasonable basis in fact. Hayes v. Hayes,  473 N.W.2d 364, 365 (Minn. App. 1991); Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987). There is no evidence indicating that it was difficult to determine respondent's actual income or that he unjustifiably self-limited his income.
Averaging respondent's income accurately measures income where, as here, respondent's income fluctuates. Veit v. Veit, 413 N.W.2d 601, 606 (Minn. App. 1987). The trial court's decision to use an average is not an abuse of discretion. The trial court's calculation of income, however, was clearly erroneous.
The trial court improperly included appellant's income in its average for respondent. See Minn. Stat. §subd. 5(b)(1) (1994 & Supp. 1995) (net income does not include the income of an obligor's spouse). Also, the trial court averaged respondent's income for the first eight months in 1994 as though it were a full year's income. This is clearly incorrect. Finally, the trial court made a specific finding that respondent's monthly expenses of $1,853.44 were largely paid by his business, yet failed to include this amount in his net monthly income. Net income includes in-kind payments received by the obligor in the course of self-employment or operation of a business if the payments reduce the obligor's living expenses. Id. ; see County of Nicollet v. Haakenson, 497 N.W.2d 611, 614 (Minn. App. 1993) (pickup truck furnished by an employer for personal use reduces living expenses and is therefore included in net income). These payments should be included in respondent's net monthly income. We therefore remand the calculation of respondent's net monthly income to the trial court.
Appellant contends that the trial court improperly valued the parties' marital estate because it failed to include certain property liquidated by respondent in contemplation of the dissolution proceeding. We disagree. Marital property means property, real or personal, acquired by the parties, or by either one of them alone, at any time during the existence of the marriage relation between them, but prior to the date of valuation under Minn. Stat. § 518.58, subd. 1 (1994). Minn. Stat. §subd. 5 (1994). Appellant does not dispute the trial court's valuation date of January 13, 1994. Instead, she argues that the court should have included the 1978 Ford wrecker and the 1992 Polaris snowmobile in the marital estate even though they were liquidated before the valuation date. The record does not support this argument. The snowmobile was liquidated as payment for a legitimate debt the parties owed, and the Ford was sold as junk and had no equity. Also, the trial court did include the value of the Ste-Rog account and respondent's IBEW pension in the marital estate.
Appellant further claims that the trial court improperly valued the parties' real property. We disagree. A trial court has broad discretion in the valuation of marital property, and an appellate court will not overturn the trial court's valuation unless it is clearly erroneous. Petterson v. Petterson, 366 N.W.2d 685, 687 (Minn. App. 1985). The market valuation determined by the trial court should be sustained if it falls within the limits of credible estimates made by competent witnesses, even if it does not coincide exactly with the estimate of any one of them. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). Here, the trial court adopted figures that fell between the appraisal of respondent's expert and the county assessor. This is not an abuse of discretion. See Ferguson v. Ferguson,  357 N.W.2d 104, 107 (Minn. App. 1984) ("Where conflicting opinions of expert witnesses have a reasonable basis in fact, the trier of fact must decide who is right, and the decision will not be overturned on appeal.").
Appellant contends that the trial court improperly double-counted the debt owed to respondent's parents. We agree that the amount of debt the trial court found the parties owed to respondent's parents is clearly erroneous. Under "Liabilities," the court found that the parties owed respondent's parents $15,000. The parties' trial testimony supports this amount. When calculating marital indebtedness, however, the court found that the parties owed respondent's parents $30,005. Thus, the trial court actually subtracted $45,005 from total assets as being owed to respondent's parents. There is no evidence in the record supporting such a figure. According to the testimony, the parties' debts to respondent's parents include a $6,480 mortgage on the 40-acre parcel and an additional $15,000 owed as of December 1993. It is undisputed that respondent borrowed an additional $8,500 after March 1994. This debt, however, should not be included in the marital estate because respondent incurred it subsequent to the valuation date. See Minn. Stat. §subd. 5 (defining marital property). Hence, the parties' total debt to respondent's parents was improperly calculated, and the issue is therefore remanded to the trial court.
Appellant argues that the trial court erred by reducing her property settlement by $5,000 for attorney fees and excess child support payments made by respondent. We agree. Here, the trial court clearly intended to make an even distribution of the marital property even though it is only required to "make a just and equitable division" under Minn. Stat. §subd. 1. Ruzic v. Ruzic,  281 N.W.2d 502, 505 (Minn. 1979) (the distribution need not be mathematically equal). While the trial court has broad discretion to make property division awards, its decision must be supported "'by either clear documentary or testimonial evidence or by comprehensive findings issued by the court.'" Otte v. Otte,  368 N.W.2d 293, 298 (Minn. App. 1985) (quoting Ronnkvist v. Ronnkvist,  331 N.W.2d 764, 766 (Minn. 1983)).
Appellant's marital property settlement should not be reduced by any amount attributable to the payment of attorney fees. See Filkins v. Filkins,  347 N.W.2d 526, 529 (Minn. App. 1984) (attorney fees for the dissolution are not part of the marital estate and should not be considered in the distribution of property). Furthermore, the record does not support the conclusion that respondent overpaid child support. In calculating the amount respondent paid on a temporary basis, the trial court failed to consider the five months that respondent was only paying $450 per month. Because the trial court improperly calculated respondent's net monthly income and child support obligation, the determination of whether respondent overpaid, or actually underpaid, child support should be revisited on remand.
Appellant argues that there is no evidence in the record supporting the trial court's finding that respondent used $30,000 in nonmarital funds toward building their home. We agree. Respondent did not show by a preponderance of the evidence that the home was purchased with a portion of nonmarital funds. See Kottke v. Kottke,  353 N.W.2d 633, 636 (Minn. App. 1984) (stating burden of proof for tracing asset to nonmarital source), review denied (Minn. Dec. 20, 1984). Respondent claims that, even though the court made the finding that nonmarital funds were used, it did not reduce appellant's share of the property settlement as a result. It is not clear from the record, however, whether the court considered this factor when it valued the marital property. On remand, the value of the marital homestead should not be reduced by any amount attributable to respondent's contribution of nonmarital funds to the property.
Appellant contends that the trial court erred by granting a step reduction in appellant's spousal maintenance award. We disagree. The amount and duration of a maintenance award are committed to the trial court's broad discretion. Erlandson v. Erlandson,  318 N.W.2d 36, 38 (Minn. 1982). This includes the use of step reductions. Schreifels v. Schreifels, 450 N.W.2d 372, 374 (Minn. App. 1990). An abuse of discretion will only be found if there is a clearly erroneous decision that is against logic and the facts on record. Zamora v. Zamora,  435 N.W.2d 609, 611 (Minn. App. 1989).
Once a trial court has determined that an award of maintenance is appropriate under Minn. Stat. §subd. 1 (1994), it must take into account a variety of factors in determining the amount and duration of the award. It must consider the financial resources of each party, the time the recipient needs to acquire education leading to appropriate employment, the couple's previous standard of living, the duration of the marriage, the length of any absence from employment, the age and physical condition of the recipient, the obligor's ability to meet both their needs, and the contributions of the parties in acquiring marital property. Minn. Stat. §subd. 2(a)-(h) (1994); Reinke v. Reinke,  464 N.W.2d 513, 515 (Minn. App. 1990).
Here, the trial court determined that appellant would have the ability to increase her work hours once her children were in school full-time and therefore reduced the amount of her award after that time. Given appellant's good health, reduced child care responsibilities in the future, and potential employability, the trial court was justified in using step reductions as "an appropriate means of providing employment incentives." Frederiksen v. Frederiksen,  368 N.W.2d 769, 776 (Minn. App. 1985). If for some reason appellant is unable to fill the gap within two years, she will be free to seek further modification of the order under Minn. Stat. §(1994 & Supp. 1995). See Katter v. Katter,  457 N.W.2d 750, 753 (Minn. App. 1990) (stating that recipient's failure to achieve status anticipated by trial court may constitute substantial change in circumstnaces warranting modification of maintenance).
Appellant contends that the trial court erred by failing to award her attorney fees. The trial court's discretion is so broad in allocating attorney fees that a reviewing court rarely will reverse the trial court's determination. Reinke, 464 N.W.2d at 516. The trial court's finding that the property settlement was evenly distributed and the parties each contributed to the large expense of attorney fees in this case is not clearly erroneous, and therefore its decision to deny appellant attorney fees is not an abuse of discretion. See Nardini v. Nardini,  414 N.W.2d 184, 199 (Minn. 1987) (where property and income of parties is evenly balanced following division of marital property and award of permanent maintenance, denial of attorney fees was not an abuse of discretion).
Respondent requests an award of attorney fees on appeal pursuant to Minn. Stat. §(1994). Given the fact that we are remanding several issues in this case to the trial court, respondent's argument has no merit.
  Affirmed in part, reversed in part, remanded, and motion denied.