In re the Marriage of: Denise Kaye Newman v. Thomas Joseph Newman

• Court: Court of Appeals of Minnesota
• Decided: December 21, 2015
• Docket: A15-561
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A15-0561

In re the Marriage of: Denise Kaye Newman, petitioner, Appellant,

vs.

Thomas Joseph Newman, Respondent.

Filed December 21, 2015 Affirmed Kirk, Judge

Wabasha County District Court File No. 79-FA-14-254

John T. Burns, Jr., Burns Law Office, Burnsville, Minnesota (for appellant)

Angela V. Lallemont, Price, McCluer & Plachecki, Winona, Minnesota (for respondent)

Paul Janzen, Wabasha, Minnesota (guardian ad litem)

Considered and decided by Kirk, Presiding Judge; Worke, Judge; and Smith, Judge.

UNPUBLISHED OPINION

KIRK, Judge

In this marital-dissolution proceeding, appellant-mother argues that the district court

erred by: (1) granting respondent-father sole physical custody of the minor children;

(2) failing to award her permanent spousal maintenance; (3) failing to make sufficient findings in dividing the marital property; and (4) using mother’s potential income when

calculating her child-support obligation. We affirm.

FACTS

In March 2014, after over 16 years of marriage, appellant-mother Denise Kaye

Newman, age 43 years, petitioned for marital dissolution from respondent-father Thomas

Joseph Newman, age 53 years. The parties have three children who were minors at the time

of the marital dissolution. In 2003, mother was employed as a medical secretary, but quit

working and transitioned into being a full-time homemaker. Father was employed as a

cook supervisor for over 22 years. He voluntarily retired early when he was 54 years old.

Following a court trial in January 2015, the district court issued its findings of fact,

conclusions of law, order for judgment and judgment and decree. The district court

awarded the parties joint legal custody and father sole physical custody, subject to mother’s

reasonable parenting time. In its findings, the district court barred mother from including

her boyfriend during her parenting time. The district court divided the marital assets

evenly, awarding each party $483,383. The district court found that neither party could

individually afford to pay the mortgage of the marital home. The court ordered the parties

to sell the house and mother to sign a purchase agreement to accept an outstanding offer.

The district court denied mother’s request for permanent spousal maintenance,

finding that, although she was unemployed, she was capable of working full-time.

However, it awarded her two years of rehabilitative spousal maintenance in the amount of

$1,500 per month to pay for a period of retraining.

2 On February 26, mother moved for amended findings and to stay the property

division. In March, the district court denied mother’s motion and found her in constructive

contempt of court for failing to cooperate in the post-dissolution property division. In

April, mother filed a notice of appeal to this court and posted a supersedeas bond, as

ordered by the district court, to stay the property division.

Mother appeals.

DECISION

I. The district court did not err in awarding father sole physical custody.

A district court’s primary objective in custody matters is determining the best

interests of the child. Minn. Stat. § 518.17, subd. 1(a) (2014). A district court must

consider “all relevant factors,” including 13 statutory factors relevant to a child’s best

interests. “Appellate review of custody determinations is limited to whether the [district]

court abused its discretion by making findings unsupported by the evidence or by

improperly applying the law.” Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). A

district court’s findings of fact will be sustained unless they are clearly erroneous. Id.; see

Minn. R. Civ. P. 52.01 (stating that findings of fact are not set aside unless clearly

erroneous). The law “leaves scant if any room for an appellate court to question the

[district] court’s balancing of best-interests considerations.” Vangsness v. Vangsness, 607

N.W.2d 468, 477 (Minn. App. 2000).

Mother argues that the district court erred by awarding father sole physical custody

without addressing the joint-custody factors in Minn. Stat. § 518.17, subd. 2 (2014). Under

that statute, the district court must analyze the joint-custody factors “where either joint

3 legal or joint physical custody is contemplated or sought.” The joint-custody factors are:

(1) the parents’ ability to cooperate in rearing their child; (2) methods for resolving

parenting disputes and the parties’ willingness to use them; (3) whether it would be

detrimental to the child to give one parent sole authority over the child’s upbringing; and

(4) whether domestic abuse, as defined under Minn. Stat. § 518B.01 (2014), has occurred

between the parents. Minn. Stat. § 518.17, subd. 2(b).

In their respective petitions for marital dissolution, each party requested sole

physical custody. But at trial, mother acknowledged that she had requested joint physical

custody in a pretrial statement.

Here, the record shows that the district court properly considered the joint-custody

factors. At trial, the district court noted that “acrimony and personal feelings, personal

attacks have been rampant in this case.” See Minn. R. Civ. P. 52.01 (noting that statements

from the bench can, if recorded, constitute findings of fact). This bears negatively on the

parties’ ability to cooperate with one another under a joint physical custody arrangement.

The parties did not demonstrate any positive methods for resolving outstanding disputes

concerning the children. The district court found that a current harassment restraining

order barred father from harassing mother.

While there was no evidence of domestic abuse, the district court indicated deep

concern about the safety of the parties’ daughters around mother’s live-in boyfriend, who

had been convicted of felony invasion of privacy of a minor for hiding a video camera in

his 17-year-old step-daughter’s bathroom and attempting to videotape her showering. In

awarding father sole physical custody, the district court cited the guardian ad litem’s

4 (GAL’s) recommendation that mother’s parenting time not include her boyfriend, and that

the parties have a daughter who will soon be the same age as the boyfriend’s step-daughter.

The district court’s findings relating to mother’s boyfriend directly impact the physical and

emotional safety of the parties’ daughters if mother were awarded physical custody.

Mother next argues that the district court clearly erred in its findings on the fifth and

tenth best-interests factors. Mother contends that the district court erred in finding that the

fifth best-interests factor, which requires the district court to examine “the interaction and

interrelationship of . . . any other person who may significantly affect the child’s best

interests” favored father. Minn. Stat. § 518.17, subd. 1(a)(5). Mother argues that the

district court merely speculated on her boyfriend’s potential effect upon the children

because the boyfriend currently does not have any meaningful interaction or

interrelationship with them, and that the order prohibits mother from including him in

parenting time.

The district court addressed all 13 best-interests factors and found nine to be neutral,

one inapplicable, two favored father, and that one favored mother. The record supports the

district court’s finding that the fifth best-interests factor weighed in father’s favor because

mother was currently involved in a relationship with a convicted felon who had harmed his

own step-daughter, as well as father’s strong relationship with mother’s family and the

children’s close relationship with father’s adult children, who are the children’s half-

siblings.

The fifth best-interests factor allows the district court to consider the interaction and

interrelationship of a person who may significantly affect the children’s best interests,

5 which could reasonably include mother’s boyfriend. Id. At trial, the GAL expressed

concern about mother’s ability to make sound decisions regarding the safety of her children

in light of her continued relationship with her boyfriend. The record also supports the

district court’s determination that father’s familial connections were stronger than

mother’s, as he maintained contact with mother’s father, his own mother, his adult children,

and his siblings.

Mother next challenges the district court’s finding on the tenth best-interests factor,

“the capacity and disposition of the parties to give the child love, affection, and guidance,

and to continue educating and raising the child in the child’s culture and religion or creed,

if any.” Id., subd. 1(a)(10). Here, the record supports the district court’s finding that this

factor weighed slightly in favor of father because he regularly attended church with the

children. While mother no longer attended the same church, she provided no evidence that

she is continuing to raise the children in any religious tradition. Hence, the district court

did not clearly err in finding that this factor weighed slightly in favor of father. We

conclude that the district court did not abuse its discretion in its findings and conclusions

of the best-interests factors.

II. The district court did not err in denying mother’s request for permanent spousal maintenance.

Generally, the district court exercises broad discretion in its decisions regarding

spousal maintenance. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). This

court reviews the district court’s spousal-maintenance determinations for an abuse of

discretion. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997). An abuse of discretion

6 occurs when the district court’s decision is against logic or not supported by the record.

Robert v. Zygmunt, 652 N.W.2d 537, 544 (Minn. App. 2002), review denied (Minn. Dec.

30, 2002). “A district court’s determination of income for maintenance purposes is a

finding of fact and is not set aside unless clearly erroneous.” Peterka v. Peterka, 675

N.W.2d 353, 357 (Minn. App. 2004). We review questions of law relating to spousal

maintenance de novo. Van de Loo v. Van de Loo, 346 N.W.2d 173, 175 (Minn. App. 1984).

Mother argues that the district court’s decree is deficient because: (1) it failed to

make any finding regarding the parties’ marital standard of living or her ability to support

herself at the marital standard of living after she received educational retraining; and

(2) father has the financial ability to pay permanent spousal maintenance of over $1,500 a

month.

Before determining whether a party should be granted spousal maintenance, the

district court is required to consider several factors, including: (1) the ability of the party

seeking maintenance “to meet needs independently”; (2) the probability of “becoming fully

or partially self-supporting”; (3) the marital standard of living; (4) the duration of the

marriage and the period of time the party seeking maintenance has been absent from

employment; (5) whether the party seeking maintenance has lost earnings or opportunities;

(6) the age and physical and emotional condition of the party seeking maintenance; (7) the

ability of the potential obligor to meet needs while paying maintenance; and (8) the

contribution of each party to the acquisition of marital property and the furtherance of the

other party’s employment. Minn. Stat. § 518.552, subd. 2 (2014). In divorce cases

involving property, spousal maintenance, and child-support issues, “the [district court]

7 must of necessity ‘balance the equities’ in the light of facts then existing or in the light of

facts that will with reasonable probability exist in the future.” Brugger v. Brugger, 303

Minn. 488, 491, 229 N.W.2d 131, 134 (1975) (quotation marks omitted).

We conclude that the district court did not err in denying mother permanent spousal

maintenance. It found that: (1) neither party could independently afford to maintain the

marital standard of living; (2) mother was capable of earning $36,498 annually working

full-time; (3) mother was currently unemployed while father had retired a few years before

he would be administratively fired after working full-time for over 22 years; (4) in light of

mother’s needs for retraining, it was appropriate to require father to pay $1,500 monthly in

rehabilitative spousal maintenance; (5) mother had not applied for any job since the parties’

initial separation in November 2013; (6) at mother’s age, and with some retraining, she

was capable of returning to her previous occupation as a medical secretary; (7) father’s

gross monthly income for child-support purposes was $3,252, but his monthly expenses

exceeded his income; and (8) each party was awarded $434,483 in assets, and that mother

could use this to pay for her needs and tuition. The district court essentially found that,

with her property settlement and some education, mother had the “ability to meet needs

independently.” Minn. Stat. § 518.552, subd. 2(a).

The district court also properly considered the Richards factors after mother raised

a colorable claim that father had retired early in bad faith, and that the court should have

imputed employment income to him. See In re Marriage of Richards, 472 N.W.2d 162,

164-65 (Minn. App. 1991). When an obligee raises a colorable claim that the obligor

retired in bad faith, the obligor must show by a preponderance of the evidence that a

8 decision to retire early was not primarily influenced by “a specific intent to decrease or

terminate [spousal] maintenance.” Id. “The [district] court should consider the obligor’s

health and employment history, the availability of and expectations regarding early

retirement at the time of the divorce, and the prevailing managerial policies and economic

conditions at the time of retirement,” along with any subjective reasons offered by the

obligor. Id. at 165.

The district court found: (1) father was currently 54 years old and was in good

health; (2) he had worked as a head cook for 22 years and eight months; (3) he met his

employer’s retirement qualifications; (4) he would have been administratively fired from

his position in three years according to his employment contract and federal law; and (5) he

was no longer eligible for a raise and had not received one in four years. Further, father

testified that he retired early in order to take care of the children. The district court properly

concluded that father met his burden to prove that he retired in good faith.

III. The district court did not abuse its discretion in dividing the marital property.

“A [district] court has broad discretion in evaluating and dividing property in a

marital dissolution and will not be overturned except for abuse of discretion.” Antone v.

Antone, 645 N.W.2d 96, 100 (Minn. 2002). “We will affirm the [district] court’s division

of property if it had an acceptable basis in fact and principle even though we might have

taken a different approach.” Id. “An equitable division of marital property is not

necessarily an equal division.” Crosby v. Crosby, 587 N.W.2d 292, 297 (Minn. App.

1998), review denied (Minn. Feb. 18, 1999).

9 Mother challenges the district court’s valuation and division of marital property,

arguing that: (1) there is no evidence to support a $100,000 valuation of the parties’

unspecified personal property; (2) the district court erred by reducing father’s IRA account

from $559,052 to $523,887 because he improperly withdrew the monies without mother’s

permission; and (3) the district court did not take into account the fact that mother’s

occupation as a homemaker greatly reduced her ability to accumulate property.

We conclude that the district court did not err in its valuation or division of the

parties’ personal property. Appellate courts defer to district court credibility

determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). The district court

implicitly credited father’s testimony that the value of the remaining property was

$100,000, and mother never testified to or submitted any evidence to support a different

valuation. See Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003)

(stating that “a party cannot complain about a district court’s failure to rule in [her] favor

when one of the reasons it did not do so is because that party failed to provide the district

court with the evidence that would allow the district court to fully address the question”),

review denied (Minn. Nov. 25, 2003). Moreover, the record shows that mother signed the

requisite documents authorizing father to withdraw monies from his IRA, which he used

to meet his monthly budgetary expenses and temporary child-support obligation. The

record also shows that, with rehabilitative spousal maintenance and her property

settlement, mother is capable of meeting her needs independently.

10 IV. The district court did not err in calculating mother’s child-support obligation.

“If a parent is voluntarily unemployed, underemployed, or employed on a less than

full-time basis, . . . child support must be calculated based on a determination of potential

income.” Minn. Stat. § 518A.32, subd. 1 (2014). A parent is not considered to be in this

category if he shows that his unemployment or underemployment: (1) “is temporary and

will ultimately lead to an increase in income”; or (2) “represents a bona fide career change

that outweighs the adverse effect of that parent’s diminished income on the child.” Id.,

subd. 3(1), (2) (2014). This court reviews a factual finding on whether a party is voluntarily

unemployed for clear error. Welsh v. Welsh, 775 N.W.2d 364, 370 (Minn. App. 2009).

Mother argues that the district court erred in attributing income to her because it

found that she needed retraining and ordered father to pay her rehabilitative spousal

maintenance for two years.

Here, the district court did not clearly err in attributing income to mother because it

implicitly found that she was voluntarily unemployed. It found that mother was

unemployed, had the ability to work on a full-time basis, but had not applied for a job since

November 2013. On these facts, the district court calculated mother’s potential income to

be $2,080 based on her working full-time (40 hours) at 150% of the state’s minimum wage

of $8.00 per hour. See Minn. Stat. § 518A.32, subd. 2(3) (2014).

Mother never testified that her current unemployed status was temporary and would

lead to an increase in income, or that she was pursuing a career change, and the record does

not indicate that either was the case. See id., subd. 3(1), (2); see Eisenschenk, 668 N.W.2d

11 at 243. Therefore, the district court did not err in attributing income to mother for child-

support purposes.

Affirmed.