Marriage of Johnson v. Johnson

392 N.W.2d 922, 1986 Minn. App. LEXIS 4748
Court of Appeals of Minnesota·Decided September 16, 1986·No. C3-86-331·Published·Cited by 4 cases

Opinion

OPINION

PARKER, Judge.

This is a marital dissolution case involving a controversy over whether or not an $80,000 fund existed and whether it was secreted and diverted from the marital estate by Norman Johnson. Questions are also raised of valuation of a vendor’s interest in a contract for deed for a fourplex, valuation of a duplex owned by the parties and the question of substantial attorney’s fees awarded by the trial court sitting without a jury.

Norman Johnson appeals from the dissolution judgment and decree, contending the trial court abused its discretion by (1) finding that $80,000 in cash was kept in a hiding hole in the basement and that Norman Johnson secreted those funds; (2) the use of a discounted value on the vendor’s interest in a contract for deed on the fourplex; (3) valuing Norman Johnson’s duplex at $72,000; and (4) awarding $16,000 in attorney’s fees to respondent Loretta Johnson.

The trial court found that Norman Johnson had secreted and diverted the $80,000 and that his actions had increased the cost of litigation, therefore justifying the amount of attorney’s fees awarded. The trial court also accepted a discounted value for the vendor’s interest in the contract for deed on the fourplex, based on the present value of the contract, and found that Norman Johnson’s recent work on the duplex justified a higher valuation of the duplex than that agreed upon by the parties in the settlement negotiations. We affirm.

FACTS

Loretta Johnson, now age 62, and Norman Johnson, now age 65, were married in 1944. They have three children, all of whom are past the age of majority.

Loretta Johnson is currently employed part-time as a clerk at Butler Drug in Minneapolis, with a net income of approximately $85 per week ($340 per month). She also receives rental income of $375 per month from a duplex at 110 West 27th Street, Minneapolis. She will be entitled to $237 per month in social security benefits when she becomes eligible.

Norman Johnson has been retired since 1973. He receives $419 per month in social security benefits and rental income of $350 per month from a duplex at 2624-26 Blais-dell Avenue South in Minneapolis. In 1985 he had income from part-time employment with Garnet Manufacturing Company, but that employment has ceased.

The parties own three rental properties: a duplex at 110 West 27th Street in Minneapolis, which was the parties’ homestead, one of the apartments of which Loretta Johnson now occupies; a duplex at 2624-26 Blaisdell Avenue South in Minneapolis, one of the apartments of which Norman Johnson now occupies; and the vendor’s interest in a contract for deed (dated February 1, 1985) on a fourplex at 2630 Blaisdell Avenue South in Minneapolis.

The dispute over the existence of the $80,000 led to a two-part evidentiary hearing before a referee (August 7, 1984, and September 17, 1984). The referee’s findings were approved on two separate occasions by different judges before this case reached the trial court (Findings signed September 19, 1984; reviewed March 25, 1985). The trial court adopted the referee’s findings of fact. Despite the detailed findings and the length of procedure *924 followed, Norman Johnson still contested the existence of the $80,000 and the values of the property interests. Each party claims that the hiding hole for money in their basement was the other’s idea; each professes to have wanted to keep money in the bank, only to be prevented by the other.

The trial court found that the hiding hole was Norman Johnson’s idea and that he had control over the missing $80,000. The trial court also accepted expert testimony that the vendor’s interest in the contract for deed had a present value discounted to 33 percent of the contract “face” value. The trial court also increased the valuation of Norman Johnson’s duplex by $2,000 because he had put on a new roof and painted. Loretta Johnson was granted $16,000 in attorney’s fees.

ISSUES

1. Was the evidence sufficient to justify the trial court’s finding that the parties kept $80,000 in their basement and that appellant had secreted it?

2. Did the trial court err in discounting the parties’ vendor’s interest in the contract for deed on the fourplex?

3. Did the trial court err in increasing the valuation of the duplex?

4. Did the trial court abuse its discretion in granting respondent $16,000 in attorney's fees?

DISCUSSION

I

The issue of whether the fund existed and what happened to it involve questions of fact for the court because the credibility of the witnesses is determinative.

The scope of review of a finding of fact is narrow. The only issue is whether the evidence was sufficient to support the finding. The scope of review is narrowed because there were no post-trial motions.

The existence of the money was established by Loretta Johnson’s testimony, which was corroborated by the son’s testimony and, to a lesser extent, by Norman Johnson’s own statements.

The referee and the trial court both had opportunity to observe the demeanor of the witnesses. The Court of Appeals has only the written record. As the court in Hollom v. Carey pointed out:

The trial court had the advantage of observing the witnesses and judging their credibility on a first hand basis. Since trial court findings are a product of first hand observation, they possess a certain integrity not contained in the written record alone.

Hollom v. Carey, 343 N.W.2d 701, 704 (Minn.Ct.App.1984) (citing Tamarac Inn, Inc. v. City of Long Lake, 310 N.W.2d 474 (Minn.1981)). It is not the place of this court to set aside the trial court’s findings if they are reasonably supported by the evidence. The evidentiary hearings and the testimony at trial show there was sufficient investigation into these questions of fact. The trial court’s findings are supported by the evidence.

II

Norman Johnson has mischarac-terized the valuation issue on the contract for deed. A contract for deed is a contractual right to receive money secured by legal title to land. Vendors’ interests in contracts for deed are bought and sold every day and are therefore readily evaluated. The value of the vendor’s interest in the contract for deed is not the face value of the contract for deed (i.e., what the total of all contract payments and balloon will equal) but the market value of the contract or the present value of the right to receive the income stream on the contract. Market value has been defined as

the price which the owner, if willing but not compelled to sell, could obtain from a buyer, willing but not compelled to buy.

Lehman v. Hansord Pontiac Co., Inc., 246 Minn. 1, 74 N.W.2d 305, 310 (1955).

Loretta Johnson presented expert testimony on the market, or present, value of the contract.

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Marriage of Johnson v. Johnson, 392 N.W.2d 922, 1986 Minn. App. LEXIS 4748 (Mich. Ct. App. 1986).

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