This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-0184
In re the Marriage of: Sharon Alice Gribble, petitioner, Respondent,
vs.
William Daniel Gribble, Appellant.
Filed June 15, 2015 Affirmed in part, reversed in part, and remanded Smith, Judge
Ramsey County District Court File No. 62-FA-12-76
Patricia A. O’Gorman, Patricia A. O’Gorman, P.A., Cottage Grove, Minnesota (for respondent)
Karen T. Kugler, J. Oakes Family Law, Roseville, Minnesota (for appellant)
Considered and decided by Smith, Presiding Judge; Rodenberg, Judge; and
Chutich, Judge.
UNPUBLISHED OPINION
SMITH, Judge
We affirm in part because the district court did not clearly err by finding that
respondent was not voluntarily underemployed, when calculating appellant’s and
respondent’s reasonable monthly expenses, or when considering respondent’s ability to become self-supporting. The district court did not abuse its discretion by ordering
appellant to maintain his $1,000,000 life insurance policy. The district court did not
clearly err by finding that appellant had sufficient assets to pay appellant’s need-based
attorney fees. However, we reverse in part and remand for additional findings regarding
the amount of and basis for the district court’s consideration of the parties’ tax liabilities,
respondent’s ability to pay the spousal-maintenance award in light of the district court’s
implicit consideration of income and expenses beyond those it relied upon for its
calculation of the parties’ monthly expenses, and whether the district court’s spousal-
maintenance award of 50% of appellant’s annual bonus results in an award that exceeds
respondent’s need.
FACTS
Appellant William Gribble and respondent Sharon Gribble divorced in June 2013
after an approximately 15-year marriage. At the time of their divorce, the parties had
four minor children.
The district court found that Sharon earned $12.45 an hour as a part-time school
paraprofessional, but that she hoped to secure a full-time position at the same rate of pay
shortly after the dissolution. It determined that her job employed her for 178 days per
year, resulting in an average gross monthly income of $1,154. It found that her
“marketable job skills are nominal” and that “her skills have become outmoded.”
Because “[s]he lacks education, skills, and experience that would allow her to find
immediate employment,” and because “[i]t is uncertain how much time [she] would need
to acquire sufficient education or training to find appropriate employment,” the district
2 court found that “her earning capacity has become permanently diminished.” It also
determined that she “is neither voluntarily underemployed nor self-limiting her income.”
The district court found that Sharon had reasonable monthly expenses of $6,988, not
including possible medical-insurance, educational, pension-fund, and attorney-fees
expenses. Based on these findings, it concluded that she “is unable to provide adequate
self-support after considering the standard of living established during the marriage
through appropriate employment.”
The district court found that William had a gross monthly salary of $12,555,
supplemented by a variable yearly bonus averaging $33,762. It determined that his
monthly living expenses were “speculative, as he currently resides temporarily in his
mother’s basement,” but it “estimated” them to be $3,313, not counting pension-fund
contributions, debt payments, or attorney fees. Its findings also did not include any
expense for a car payment that the record shows he makes each month.
Based on its findings regarding the parties’ income and expenses, the district court
awarded Sharon $4,434 per month in permanent spousal maintenance, plus “50% of
[William’s] annual bonus up to a maximum of $18,792, which is an average of $1,566
per month.” It also ordered William to pay a net child support obligation of $2,046 per
month, instructed him to maintain a $1,000,000 life insurance policy “naming [Sharon] as
the beneficiary, for as long as [William] has a child-support obligation,” and directed him
to contribute $20,000 toward Sharon’s attorney fees and litigation costs.
Both parties moved the district court for amended findings. The district court
reduced William’s net child-support obligation to $1,886, and reduced its attorney-fees
3 award to $10,000. When addressing William’s motion for the district court to amend its
finding that he had the ability to meet his own monthly expenses while contributing to
Sharon’s, the district court detailed cash-flow calculations for both parties. In the course
of these calculations, the district court mentioned several expenses not contained in its
previous findings of income and expenses for the parties, including 7% pension-fund
contributions for both parties, expected tax liabilities for both parties, and William’s
$9,750 car allowance. Based on its calculations, it found that the effect of its orders was
that “83% of the family ([Sharon] and four children) will have 69% of the available cash
flow, and 17% ([William]) will have 31% of the available cash flow.” It rejected
William’s arguments that Sharon could increase her income by obtaining additional
education and training as “unrealistic and unpersuasive.”
DECISION
I.
William challenges the district court’s calculation of Sharon’s income predicate to
its child-support award, arguing that it failed to impute income to her as a result of her
being voluntarily underemployed. If a parent is voluntarily underemployed, the district
court must calculate child support “based on a determination of potential income.” Minn.
Stat. § 518A.32, subd. 1 (2014). Although the statute does not define voluntary
underemployment, the key inquiry is whether a parent has chosen to limit her income.
See Franzen v. Borders, 521 N.W.2d 626, 629 (Minn. App. 1994) (“[I]mputation of
income . . . is appropriate if the support obligor chose to be unemployed or
underemployed and neither statutory condition applies.” (emphasis added)). “Whether a
4 parent is voluntarily underemployed is a finding of fact, which we review for clear error.”
Welsh v. Welsh, 775 N.W.2d 364, 370 (Minn. App. 2009). A district court’s finding is
clearly erroneous only if, after viewing the record in a light most favorable to the district
court’s finding, we are “left with the definite and firm conviction that a mistake has been
made.” Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (quotation
omitted). The fact that the record might support other findings does not by itself render a
finding clearly erroneous. Id. at 474.
Here, the district court found that Sharon was not voluntarily underemployed,
citing her limited and outdated work experience and the uncertainty surrounding any
efforts to obtain new education and skills. William contends that the district court should
have considered the statutory factors for determining whether Sharon qualified as a
caretaker. See Minn. Stat. § 518A.32, subd. 5 (2014). But a district court’s consideration
of the caretaker factors is a discretionary option for finding that a parent is not voluntarily
underemployed; it is not a mandatory prerequisite to such a finding. See id. (stating that a
district court “may consider the following factors when determining whether the parent is
voluntarily . . . underemployed” (emphasis added)). Here, the district court focused upon
Sharon’s lack of up-to-date skills, not any caretaker status. William’s reliance on Minn.
Stat. § 518A.32, subd. 5 is therefore incorrect.
William also argues that the district court should have calculated Sharon’s income
for its child-support award based on the assumption that an hourly school employee
“works 5 days a week, for 4.33 weeks per month, for 9 months per year, . . . result[ing] in
approximately 195 days,” instead of the 178 days that the district court used. But
5 William offers no evidence that the district court’s estimation of the number of days in a
school year was erroneous. To the contrary, any school-year calendar contains holidays
and service days that would subtract from William’s estimation. See Hesse v. Hesse, 778
N.W.2d 98, 103 (Minn. App. 2009) (“A court may take judicial notice of the course of
the calendar.” (citing Webb v. Kennedy, 20 Minn. 419, 420, 20 Gil. 374, 376 (1874)). We
therefore conclude that the district court did not clearly err in finding that Sharon was not
voluntarily underemployed.
II.
William challenges several aspects of the district court’s permanent spousal-
maintenance award,1 alleging numerous errors in its calculations of Sharon’s and
William’s income and expenses. A district court has “wide discretion” in setting a
spousal-maintenance award, and its determination “is final” absent an abuse of that
discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). “A district court
abuses its discretion when it makes findings unsupported by the evidence or when it
improperly applies the law.” Hemmingsen v. Hemmingsen, 767 N.W.2d 711, 716 (Minn.
App. 2009), appeal dismissed (Minn. Feb. 1, 2010). “Findings of fact concerning spousal
maintenance must be upheld unless they are clearly erroneous.” Gessner v. Gessner, 487
1 William also challenges the district court’s differing calculation of his monthly expenses in its “cash-flow analysis” when addressing his motion for amended findings. Because we are unsure whether the district court’s cash-flow analysis represents amended findings about William’s income and reasonable expenses, or whether it is merely an illustration regarding William’s ability to pay the spousal-maintenance award, we address that issue separately and focus here solely on William’s challenge to the district court’s calculation of the parties’ reasonable monthly expenses in its original spousal- maintenance award.
6 N.W.2d 921, 923 (Minn. App. 1992). A factual finding is clearly erroneous only if it is
“against logic and the facts on record,” Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002),
leaving us with a “definite and firm conviction that a mistake has been made.”
Vangsness, 607 N.W.2d at 472.
William argues that the district court’s findings regarding his and Sharon’s
monthly expenses are unsupported by evidence. “A [district] court’s calculation of living
expenses must be supported by the evidence.” Rask v. Rask, 445 N.W.2d 849, 854
(Minn. App. 1989). But factual findings regarding monthly expenses in a spousal-
maintenance calculation “must be upheld unless clearly erroneous.” McCulloch v.
McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989).
William contends that the district court’s expense calculations are contrary to logic
and unsupported by evidence because it included a post-marital gym membership in
Sharon’s expenses, used a higher amount for Sharon’s housing expense than for
William’s, failed to include his expenses for maintaining life-insurance and health-
insurance policies, assumed higher childcare, life-insurance, and lawncare expenses for
Sharon than for William, and failed to consider William’s attorney-fees expenses in spite
of awarding Sharon need-based attorney fees. Other than regarding the gym
membership, William cites no authority nor does the record support his arguments that
the discrepancies he claims amount to clearly erroneous findings.2 We therefore decline
2 We note in passing, however, that the district court’s calculation of William’s mortgage expense exceeded his own projections, and that the fact that the district court was not required to consider any mortgage payment for William when he did not presently have any mortgage expense, see Rask, 445 N.W.2d at 854, amply demonstrates that William
7 to consider those arguments. See Schoepke v. Alexander Smith & Sons Carpet Co., 290
Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (holding that “[a]n assignment of error
based on mere assertion and not supported by any argument or authority” is waived
“unless prejudicial error is obvious on mere inspection”).
Regarding the gym membership, Williams cites Kemp v. Kemp, 608 N.W.2d 916,
921 (Minn. App. 2000), to support his argument that the district court clearly erred by
including a $50 gym membership in Sharon’s monthly expenses because the expense
arose after the parties separated. But Kemp contains no holding limiting claimed
expenses to the pre-separation period. To the contrary, a district court may consider
expenses derived solely from the post-separation period, provided that it finds them to be
a credible reflection of the overall standard of living that the parties enjoyed during the
marriage. Melius v. Melius, 765 N.W.2d 411, 417 (Minn. App. 2009). Here, the district
court implicitly found that the gym membership reflected the overall standard of living
enjoyed by the parties during the marriage, and William proffers no evidence that the
gym-membership expense is extravagant or reflective of a higher standard of living than
that which the district court characterized as “a middle class standard of living.” We
therefore conclude that the district court did not clearly err by including the gym
membership in Sharon’s reasonable monthly expenses.
was not prejudiced by any error in the district court’s projection of his mortgage expense. We also note that the district court’s life-insurance and health-insurance expense calculations were precisely what each party requested.
8 III.
William challenges the district court’s calculation of Sharon’s need and its award
of permanent spousal maintenance, arguing that it failed to adequately consider Sharon’s
ability to become self-supporting. A district court’s broad discretion to award spousal
maintenance applies to both the amount and the duration of maintenance. Maiers v.
Maiers, 775 N.W.2d 666, 668 (Minn. App. 2009). We review its factual determinations
underlying its spousal-maintenance award only for clear error. Id.
William points to Sharon’s statements indicating that she intended to seek
additional education, arguing that the district court erred by dismissing those statements
without “stat[ing] with any specificity the basis for these conclusions.” He further argues
that the district court’s adoption of Sharon’s proposed findings provides additional
evidence that the district court failed to adequately consider her ability to become self-
supporting, and he cites Passolt v. Passolt, 804 N.W.2d 18, 25 (Minn. App. 2011), review
denied (Minn. Nov. 15, 2011), to suggest that step-decreases in her spousal-maintenance
award would have been a better way to incentivize her to become self-supporting.
William reads Passolt too broadly. In Passolt, we held that a district court must
consider a maintenance recipient’s ability to become self-supporting through education or
retraining even in the absence of a finding that the maintenance recipient had “decreased
his or her income in bad faith.” Id. Passolt held, however, only that a district court errs
by failing to consider the issue, id.; it does not require that a district court adopt the step-
decrease approach based on any possibility that a recipient could become self-supporting
through education or retraining. To the contrary, Passolt cites Fredericksen v.
9 Fredericksen, where we held that a district court’s adoption of a step-decrease to account
for a maintenance recipient’s predicted receipt of social security payments was “too
speculative” and “premature” because of “the uncertainties in the benefits she will
receive.” 368 N.W.2d 769, 776 (Minn. App. 1985).
The district court here found that Sharon’s earning capacity had become
“permanently diminished” because her work skills were outdated. It also found that any
prospect for her becoming self-sufficient through education was “uncertain,” and that
William’s predictions were “unrealistic and unpersuasive.” Although Sharon’s desire to
pursue further education might have led the district court to a different conclusion, it did
not compel a different conclusion. See Vangsness, 607 N.W.2d at 474 (noting that the
fact that the record might support other findings does not by itself render a finding clearly
erroneous). To the contrary, when it is “uncertain” whether a spouse seeking
maintenance can eventually become self-supporting, the district court should award
permanent spousal maintenance, leaving open the possibility that the obligor could bring
a motion to modify maintenance if the recipient becomes self-supporting. Nardini v.
Nardini, 414 N.W.2d 184, 198 (Minn. 1987).
William contends, however, that the district court’s near-verbatim adoption of
Sharon’s proposed findings raises doubt about whether it adequately considered its
findings. Although “wholesale adoption of one party’s findings and conclusions raises
the question of whether the [district] court independently evaluated each party’s
testimony and evidence,” Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review
denied (Minn. Feb. 12, 1993), such adoption of findings does not alter our clear-error
10 standard of review or compel reversal in itself, Schallinger v. Schallinger, 699 N.W.2d
15, 23 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005). Since the district
court’s findings regarding the uncertainty of Sharon’s ability to become self-supporting
are not clearly erroneous, we conclude that the district court did not abuse its discretion
by failing to adequately consider the potential for Sharon to become self-supporting.
IV.
William challenges the district court’s mandate that he maintain a $1,000,000 life-
insurance policy to secure his child-support obligation, arguing that the required amount
is excessive. A district court has discretion to order a child-support obligor to secure his
child-support obligation with a life-insurance policy. Emerick ex rel. Howley v. Sanchez,
547 N.W.2d 109, 112 (Minn. App. 1996) (citing Minn. Stat. § 518.64); see also Minn.
Stat. § 518A.71 (2014) (allowing a district court to require “sufficient security” for
maintenance or support payments). An insurance requirement should be supported by
factual findings regarding the obligor’s insurability and the cost of insurance. Lee v. Lee,
775 N.W.2d 631, 642-43 (Minn. 2009).
Here, the district court’s insurance requirement was based on William’s existing
policy and its existing cost. This amounts to an implicit finding that William is insurable
and that the cost of that insurance is $70 per month, and these findings are not clearly
erroneous. See Prahl v. Prahl, 627 N.W.2d 698, 703 (Minn. App. 2001) (noting that a
district court’s compliance with factual-findings requirements can be implicit). William
offers no argument or authority requiring the district court to reduce a party’s insurance
11 obligation below what it has already maintained and claimed as an expense. We
therefore affirm the district court’s life-insurance requirement.
V.
William challenges the district court’s award of attorney fees to Sharon, arguing
that its conduct-based justifications were based on facts outside the record and that its
failure to differentiate need- from conduct-based awards requires remand. “An award of
attorney fees in dissolution cases rests almost entirely within the discretion of the
[district] court and will not be disturbed absent a clear abuse of discretion.” Jensen v.
Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987). A district court shall award need-based
attorney fees in a dissolution proceeding when it finds that the recipient needs the award
“for the good faith assertion of [her] rights,” that the party paying has the means to pay
them, and that the recipient does not have the means to pay them. Minn. Stat. § 518.14,
subd. 1 (2014). The district court may also award conduct-based attorney fees to a party
when another party “unreasonably contributes to the length and expense of the
proceeding.” Id.
We need not decide William’s challenge to the district court’s conduct-based
justification for its attorney-fees award because its need-based findings are sufficient to
support the entire award. Cf. Haefele v. Haefele, 621 N.W.2d 758, 767 (Minn. App.
2001) (noting that remand is necessary when “[w]e cannot discern . . . what portion of the
entire award is attributable to need-based fees”), review denied (Minn. Feb. 21, 2001).
The district court found that Sharon had accrued significant credit card debt to pay her
attorney fees and that she lacked the ability to pay that debt. It also noted that William
12 retained $30,000 from an annual bonus, and that he therefore had the ability to pay
$10,000 towards Sharon’s attorney fees. William does not contend that these findings are
clearly erroneous. Since the district court’s findings fulfill the statutory requirements for
an award of need-based attorney fees, the district court did not abuse its discretion by
ordering William to pay $10,000 towards Sharon’s attorney fees.
VI.
William challenges the district court’s order on his motion for amended findings
regarding his ability to pay spousal maintenance, arguing that the district court erred by
considering tax consequences without specifying a basis and by exaggerating his income.
When setting a spousal-maintenance award, a district court must consider “the ability of
the spouse from whom maintenance is sought to meet needs while meeting those of the
spouse seeking maintenance.” Minn. Stat. § 518.552, subd. 2(g) (2014). We review a
district court’s factual findings for clear error. Maiers, 775 N.W.2d at 668.
A district court has discretion to consider tax consequences as part of its spousal-
maintenance-award calculations, provided that it has a “reasonable and supportable basis
for making an informed judgment as to [the] probable liability.” Kampf v. Kampf, 732
N.W.2d 630, 634-35 (Minn. App. 2007) (alteration in original) (quotation omitted)),
review denied (Minn. Aug. 21, 2007). But a district court “should not speculate about
possible tax consequences” and must instead have “sufficient information that the actual
tax liability . . . can be calculated with a reasonable degree of certainty.” Miller v. Miller,
352 N.W.2d 738, 744 (Minn. 1984).
13 Here, the district court order on William’s motion for amended findings about
Sharon’s need included amounts for Sharon’s and William’s respective tax liabilities in
its “cash-flow analysis.” It found that, including spousal-maintenance and child-support
payments, Sharon would receive $107,512 annually and incur a tax liability of $5,152. It
also found that, after making spousal-maintenance and child-support payments, William
would receive $79,945 annually and incur a tax liability of $35,658. The district court
did not specify a basis for these amounts, and we are unable to discern the basis for them.
The district court seems to have assumed that Sharon would incur a tax liability of less
than 5% of gross income, but that William would incur a tax liability of over 44%. Since
spousal-maintenance payments are taxable to the recipient, not the obligor, see 26 U.S.C.
§ 71(a) (2012), the district court appears to have significantly underestimated Sharon’s
tax liability. Accordingly, we reverse and remand for the district court to make amended
findings regarding the parties’ tax liabilities.
William also challenges the district court’s calculation of his ability to meet his
own needs while paying the spousal-maintenance award, arguing that the district court
exaggerated William’s income by counting as income a $9,750 annual car allowance
without also counting his car payments as an expense. Although the district court
specifically excluded William’s $750 employer-provided car allowance in its finding that
his income was $12,555 per month, when considering William’s motion for amended
findings, the court added $812.50 per month to his gross income for a car allowance. The
district court did not add a car-payment to William’s expenses when it added the car
allowance to his income. As a consequence, the district court may have overestimated
14 William’s net monthly cash flow, and thereby significantly exaggerated his ability to pay
the spousal-maintenance award. Sharon concedes that the district court erred in this
respect, but contends that the error is de minimus. Although we may eschew remanding
for correction of de minimus errors, we cannot conclude that this error is de minimus. Cf.
Risk ex rel. Miller v. Stark, 787 N.W.2d 690, 694 n.1 (Minn. App. 2010) (declining to
remand to correct $400 typographical error on valuation of $99,900 farm), review denied
(Minn. Nov. 16, 2010); Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985)
(declining to remand to correct “technical error”). We therefore direct that, on remand,
the district court make further findings regarding William’s ability to pay its spousal-
maintenance award.
VII.
William challenges the district court’s award of 50% of his future bonuses as
permanent spousal maintenance, arguing that the district court’s order is ambiguous and
results in a spousal-maintenance award that exceeds Sharon’s need. “Bonuses which
provide a dependable source of income may properly be included in calculation of future
income.” Lynch v. Lynch, 411 N.W.2d 263, 266 (Minn. App. 1987), review denied
(Minn. Oct. 30, 1987). A district court has discretion to include a percentage of future
bonus income in its spousal-maintenance award. See McCarthy v. McCarthy, 301 Minn.
270, 272, 275, 222 N.W.2d 331, 334 (1974) (affirming spousal-maintenance award
including a percentage of bonus income). But a district court’s spousal-maintenance
award should be based on meeting the recipient’s needs and should not exceed the
15 amount necessary to that end. See Lee, 775 N.W.2d at 642 (remanding for
reconsideration of maintenance award that exceeded recipient’s needs).
William concedes that the inclusion of some percentage of his bonus income in the
district court’s spousal-maintenance award was within the district court’s discretion, but
he argues that the district court failed to specify whether the percentage would be based
on his bonus amount before or after taxes were deducted. He also contends that the
bonus portion of the spousal-maintenance award would exceed Sharon’s reasonable
monthly needs. The district court found that Sharon’s and the children’s combined
reasonable monthly expenses were $6,988, not including medical insurance, educational
expenses, debt payments, or pension contributions. Adding the district court’s $525
estimate of the cost of Sharon’s medical-insurance coverage,3 this results in monthly
expenses of $7,513. As for income, the district court found that Sharon earned an
average monthly salary of $1,154 per month. In addition to 50% of William’s annual
bonus payments, it awarded Sharon $4,434 per month in permanent spousal maintenance
and net child support of $1,886. This results in gross income from sources other than
William’s bonus to Sharon of $7,474, an amount very close to meeting Sharon’s
reasonable monthly expenses. An across-the-board addition of an annual-bonus spousal-
maintenance award averaging $1,566 per month, results in gross income from all sources
to Sharon of $9,040, significantly exceeding her reasonable expenses (including income
3 The district court directed Sharon to bear the cost of her medical-insurance coverage, but it did not list this cost in her monthly expenses or in its cash-flow analysis for Sharon.
16 tax liability) as determined by the district court.4 We therefore direct the district court on
remand to reconsider whether its award of 50% of William’s annual bonus might result in
a spousal-maintenance award in excess of Sharon’s need and to adjust the award
accordingly. The district court should also specify whether the proportion of William’s
bonus that he is required to pay is based on the pre-tax or after-tax amount of the bonus.
The district court should also address the tax implications to the parties of awarding part
of any bonus as maintenance. Whether to reopen the record or remand shall be
discretionary with the district court.
Affirmed in part, reversed in part, and remanded.
4 Although we undertake these calculations as part of our effort to discern the implications of the district court’s need calculations, we note that the court of appeals does not find facts, Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966), and we direct that the district court on remand make its own appropriate factual findings and calculations as necessary to carry out its remand instructions. See Janssen v. Best & Flanagan, LLP, 704 N.W.2d 759, 763 (Minn. 2005) (noting that district courts enjoy “broad discretion” when determining how to proceed on remand).