Tamara Colleen Hartung, petitioner, Appellant, vs. Jeffrey David Hartung, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

COURT OF APPEALS

A04-391

 

Tamara Colleen Hartung, petitioner,

Appellant,

 

vs.

 

Jeffrey David Hartung,

Respondent.

 

Filed October 5, 2004

Affirmed in part and remanded

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File No. MF 266603

 

 

 

John A. Warchol, Warchol, Berndt & Hajek, P.A., 3433 Broadway Street N.E., No. 110, Minneapolis, MN 55413 (for appellant)

 

Robert E. Lieske, Wagner, Falconer & Judd, Ltd., 80 South Eighth Street, Suite 3500, Minneapolis, MN 55402-2113 (for respondent)

 

 

 

            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Forsberg, Judge.*

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

On appeal in this marriage-dissolution matter, appellant argues that the district court abused its discretion by awarding respondent parenting time for ten weeks during the summer and not allowing appellant access to children during that time and also erred by ruling that appellant's spousal maintenance would cease upon the nonstatutory conditions of her voluntarily terminating either her schooling or her pursuit of full-time employment.  Respondent filed a notice of review, arguing that the district court abused its discretion when it divided certain insurance proceeds.  Because the district court did not make the requisite findings as to the best interests of the children in support of its award of summer parenting time, we remand for further proceedings.  Because the district court did not err or abuse its discretion in its rulings on the remaining issues, we affirm those issues. 

FACTS

            Appellant Tamara Colleen Hartung and respondent Jeffrey David Hartung were married on August 29, 1987.  The parties have two minor children.  The parties originally separated in April 2001, at which time they divided their personal property.  At some point during the dissolution proceedings, appellant moved from the Twin Cities area to Bemidji, while respondent remained in the Twin Cities area. 

In May 2002, fire destroyed appellant's apartment and substantially everything in it.  Appellant initially received a $5,000 advance against the total claim from her homeowners' insurance company.  And, after appellant prepared a list of items she believed to have been destroyed by the fire, the homeowners' insurance company paid an additional $61,755.97 by instrument made payable to both parties.

At the time of the dissolution, appellant was an unemployed, full-time student pursuing a bachelor-of-arts degree.  Appellant estimated that her educational program would take approximately two and a half to three years, with an additional one and a half years if she pursued a master's degree.  Respondent earned a base salary of $74,000 as an engineer. 

            The district court awarded appellant sole physical custody of the parties' two children, reserving ten weeks of summer parenting time for respondent; temporary spousal maintenance; and a greater percentage of the distribution of the insurance proceeds.  The district court denied appellant's posttrial motion challenging the court's decision on summer parenting time and the conditions of the spousal maintenance award.  This appeal followed, and respondent filed a notice of review challenging the district court's order as to the distribution of the insurance proceeds.

D E C I S I O N  

1.         Parenting Time

 

            Appellant argues that the district court abused its discretion in its award of ten weeks of summer parenting time to respondent.  The district court has broad discretion in deciding parenting-time issues and will not be reversed absent an abuse of that discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  A district court must fashion parenting time in a manner that will maintain a relationship between a parent and a child.  Minn. Stat. § 518.175, subd. 1(a) (2002). 

The district court awarded to appellant the sole physical custody of the children, subject to respondent's right of visitation.  Respondent is entitled to at least 48-hours visitation with the children on alternating weekends, and is entitled to have the children on Father's Day and alternating holidays.  Furthermore, respondent is entitled to "have ten weeks of parenting time during the children's summer break from school.  The ten weeks may be taken all at one time . . . ."  During the summer parenting-time period, appellant is entitled to daily telephone contact with the children but, other than every other July 4, is not entitled to any physical time with them.  The court determined that "[t]he summer access is [respondent's] opportunity to bond with the children."

In addressing the parenting-time issue, the district court focused entirely on the respective situations of appellant and respondent and made no findings as to how the extended summer parenting time awarded to respondent will serve the children's best interests.  There is no other period during the year that either party is entitled to such exclusive, extensive, and continuous time with the children.  Furthermore, we recognize the children's summer vacation period as a unique opportunity for parental bonding.  Instead of a period of enforcement of bedtime and school attendance schedules, summer vacation can be, and ordinarily is, a time during which parents may adopt a more relaxed approach toward the care of their children.  Simply put, it is a time during which a parent may have fun with the children without concern for the structure dictated by academic schedules.  It is not apparent from the district court's findings or conclusions why it is in the children's best interests to spend this unique bonding opportunity only with respondent.  Thus, we remand this issue to the district court for further proceedings.

2.         Spousal Maintenance

 

            Appellant argues that the district court abused its discretion in its award of spousal maintenance when it ordered termination of maintenance in the event of appellant's "voluntary withdrawal from her academic pursuits or the securing of full time employment."  Appellant asserts that the district court does not have authority to order termination based on conditions not statutorily specified and that such provisions result in the loss of the district court's jurisdiction, thus precluding appellant from moving to modify her maintenance award if necessary. 

Appellate courts review a district court's maintenance award under an abuse-of-discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  A district court's decision regarding maintenance must be affirmed if it has "an acceptable basis in fact and principle."  Rohling v. Rohling, 379 N.W.2d 519, 524 (Minn. 1986).  Appellant does not challenge the award of temporary rehabilitative spousal maintenance or the amount and duration of that award.  Rather, she challenges the automatic termination of spousal maintenance if she voluntarily withdraws from her academic pursuits or secures a full-time job. 

Minn. Stat. § 518.64, subd. 3 (2002), provides "[u]nless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance."  The statutory provision applies specifically to the termination of maintenance upon death or remarriage, and the district court's order complies with this statutory provision because it states, "the payments called for . . . shall prematurely terminate in the event of [appellant's] remarriage [or] death of either party . . . ." 

The district court's additional provision for termination is based on appellant's voluntary withdrawal from academic pursuits or the securing of full-time employment.  District courts have authority to specify conditions for modification that may affect a party's need for maintenance beyond those statutorily provided.  See Abbott v. Abbott, 282 N.W.2d 561, 564-65 (Minn. 1979) (holding that a meretricious relationship is an insufficient ground for termination of spousal maintenance unless the relationship results in a reduction of need); Auer v. Scott, 494 N.W.2d 54, 56 (Minn. App. 1992) (holding that where need for support is reduced because of cohabitation, modification is appropriate).  In addition, because the district court did not exercise its power to terminate maintenance unless and until the voluntary conditions occurred, jurisdiction is reserved.  Furthermore, because the conditions are not met unless appellant voluntarily elects to take the actions that satisfy the conditions for termination, she has opportunity to seek modification of the award prior to triggering the conditions that would terminate her spousal maintenance.  Appellant concedes that her voluntary withdrawal from school or full-time employment may constitute a substantial change in circumstances warranting a modification in the award. 

The district court's provision terminating appellant's spousal maintenance was not an abuse of discretion because caselaw provides for modification of spousal maintenance, including termination, when conditions occur other than those statutorily provided and when the need for maintenance is reduced or eliminated as a result of those conditions.  Thus, we affirm the district court's maintenance award.

3.         Insurance Proceeds Distribution

Respondent argues that the district court abused its discretion in its distribution of the insurance proceeds because the district court did not make the requisite findings in support of its decision.  The district court has broad discretion regarding the division of property in marriage dissolutions and will be reversed only for a clear abuse of discretion.  Hein v. Hein, 366 N.W.2d 646, 649 (Minn. App. 1985).  This court will reverse for an abuse of discretion only where the district court has made a clearly erroneous determination that is against logic and the facts on the record.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  Minn. Stat. § 518.58, subd. 1 (2002), requires the district court to make a just and equitable division of marital property.  But an equitable division of property is not necessarily an equal division of marital property.  Riley v. Riley, 369 N.W.2d 40, 43 (Minn. App. 1985), review denied (Minn. Aug. 29, 1985).  The statute provides that division of marital property shall be based on findings on numerous stated factors, including the "income of each party."  Minn. Stat. § 518.58, subd. 1.  The numerous factors include: "length of marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party."  Id.  The district court may also award to either spouse the household goods and furniture of the parties, whether or not acquired during the marriage.  Id.  The district court must value marital assets for purposes of division between the parties as of the day of the initially scheduled prehearing settlement conference, unless the parties agree on a different date, or unless the district court makes specific findings that another date is fair and equitable.  Id.  Where a disproportionate division is made, the district court must make detailed findings indicating the rationale for its award.  Dick v. Dick, 438 N.W.2d 435, 437 (Minn. App. 1989).

Here, the district court awarded appellant a greater portion of the insurance proceeds than respondent after deducting appellant's non-marital share.  The district court found that appellant was an unemployed, full-time student and that respondent was an engineer with significant income.  The court also found:

Subsequent to the parties' separation the apartment occupied by the [appellant] and the parties' minor children was destroyed by fire.  The parties had insurance on the destroyed property.  However, there was no testimony as to who was responsible for or actually paid the insurance premiums prior to the fire.  Nevertheless, as a result of an insurance claim the parties are the named payees on a draft from Farmers Insurance Company in the amount of $61,755.97.  [Appellant] previously received an advance from Farmers Insurance Company against the claim in the amount of $5,000.00 . . . .  At the time of the fire, the parties generally divided their personal property.  The [appellant's] personal property and furnishings in the apartment were generally destroyed.  There was no convincing testimony that the Respondent provided the [appellant] with any replacement personal property after the fire.  [Appellant] assumed all responsibilities and efforts to detail the property loss and assess value to secure the insurance claim.  She proceeded to do so under the reasonable belief that it was the parties' intention that they previously divided their items of personal property to their mutual satisfaction.  Therefore, it is fair and equitable to deduce that a fair share of the insurance proceeds would follow the replacement of those items.

 

            The district court then awarded appellant $6,675.60 of the insurance proceeds as her non-marital property and provided the following rationale for its distribution of the remaining balance. 

Of the remaining balance ($60,080.37), [appellant] is hereby awarded $45,060.27 and Respondent is awarded $15,020.09.  [Appellant] is awarded a disproportionate award of the insurance proceeds inasmuch as she sustained a disproportionate amount of the loss.  Any future disbursement of insurance proceeds shall be divided by awarding to [appellant] ten percent of the proceeds as her non-marital property, with the remaining balanced divided as follows: 75% for the [appellant] and 25% to the Respondent.[[1]]

 

            The district court made findings as to the parties' occupations, amount and sources of income, the contribution of each party to the securing of the insurance proceeds, and the prior distribution of the marital property destroyed by the fire.  We conclude that the district court made the requisite findings in support of its decision.  The insurance proceeds were to reimburse appellant for the loss of property from the fire and occurred after the parties had already significantly divided their property.  Some of the insurance proceeds covered appellant's premarital property.  Because the district court has broad discretion in dividing the marital property and the insurance-proceeds distribution is fair and equitable given the facts of this case, even though it was not distributed in equal dollar amounts, we conclude that the district court did not abuse its discretion in its division of marital property.

            Affirmed in part and remanded.

 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  We note that the amounts distributed to the parties do not equal the remaining balance of the insurance proceeds.  On remand, we direct the district court to address any mathematical discrepancies.