Marriage of Kennedy v. Kennedy

376 N.W.2d 702, 1985 Minn. App. LEXIS 4681

• Court: Court of Appeals of Minnesota
• Decided: November 12, 1985
• Docket: C9-85-257
• Status: Published

Opinions

OPINION

PARKER, Judge.

Carole Mary Kennedy appeals from the trial court’s judgment and decree dissolving her marriage to Duane Allen Kennedy. We affirm the trial court’s valuation and division of marital property, but reverse and remand on the issues of child custody and support, attorney’s fees, and spousal maintenance.

FACTS

Appellant Carole Kennedy and respondent Duane Kennedy were married in 1970. At the time of the trial, Carole Kennedy was 37 and Duane Kennedy was 39 years old. They met while attending Hamline University in St. Paul, Minnesota, where Carole Kennedy obtained a degree in anthropology and Duane Kennedy a degree in education. In 1973, Duane Kennedy began law school at Hamline University. Both parties worked while he completed his legal education and passed the 1976 bar examination. After practicing for two years, Duane Kennedy was hired as an assistant county attorney in Olmsted County. He supplements his county salary with a part-time personal injury law practice. Carole Kennedy has not been steadily employed since 1977, when she stopped working in anticipation of the birth of their second child. She has done some occasional typing for a court reporter inside the home; in 1983 she was employed for six months as a temporary secretary in Rochester.

The parties have lived in their present rural home near Grand Meadow, Minnesota since 1979. There was extensive testimony describing the property as an ideal place in which to raise children. The family was involved in numerous outdoor activities, including raising and riding horses. During the pendency of this proceeding, the parties and their children resided together at the homestead under a temporary order. Duane Kennedy was eventually awarded possession of the residence by the trial court.

Although Carole Kennedy had initially considered moving away from the Grand Meadow area to pursue a career in court reporting, at the supplemental hearing in October 1984 she indicated that she intended to stay. She testified that she had put money down on a house in Grand Meadow and had applied for a job in the area. At the time of oral argument before this court, however, one of her parents had passed away and she was residing in Ash-land, Wisconsin with her surviving parent.

A two-day trial was held in August 1984 and a supplemental hearing in October 1984. The trial court split custody of the parties’ four children by awarding sole custody of the three oldest children, ages 11, 6, and 4, to Duane Kennedy and temporary custody of the youngest child, age 5½ months, to Carole Kennedy. The marital estate was valued and divided equally between the parties. Duane Kennedy’s property includes the mortgaged home, checking account, trust account, and PERA pension, as well as personal property. Carole Kennedy was awarded personal property worth $5,050 and cash in the amount of $6,000, to be paid by Duane Kennedy over a period of five years. Carole Kennedy was also awarded spousal maintenance in the amount of $350 a month for six months and $2,000 in attorneys’ fees.

Carole Kennedy appeals.

ISSUES

1. Did the trial court err in its valuation and division of the parties’ marital property?

2. Did the trial court abuse its discretion in awarding appellant only $2,000 in attorneys’ fees?

3. Did the trial court abuse its discretion in awarding appellant maintenance for a period of six months?

4. In making its custody decision, did the trial court err by failing to consider the role of the primary caretaker?

DISCUSSION

I

A trial court has broad discretion to determine what division is just and equitable to the parties in a dissolution action. Stevens v. Stevens, 300 N.W.2d 1 (Minn.1980); Minn.Stat. § 518.58 (1984). Its decision will be affirmed if it has a “reasonable and acceptable basis in fact and principle.” Kreidler v. Kreidler, 348 N.W.2d 780, 782-83, (Minn.Ct.App.1984) (quoting Dubois v. Dubois, 335 N.W.2d 503, 507 (Minn.1983)).

Carole Kennedy contends that the trial court undervalued a number of the parties’ assets, including the homestead, the horses, and certain horse equipment (“horse tack”). “Exactitude is not required of the trial court in the valuation of assets * * *; it is only necessary that the value arrived at lies within a reasonable range of figures.” Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn.1979) (quoted by Ebnet v. Ebnet, 347 N.W.2d 840, 842 (Minn.Ct.App. 1984) (evidence supplied by husband’s answers to interrogatories supported finding with respect to value of parties’ home)).

In this case, the trial court’s valuation of the parties’ homestead was well within the range of all of the figures presented. The values assigned to the horses and horse equipment were based on Duane Kennedy’s answers to interrogatories. Because Carole Kennedy offered no evidence to the contrary, she cannot now claim that these values are clearly erroneous. See Jensen v. Jensen, 276 N.W.2d 68, 69 (Minn.1979).

Carole Kennedy contends that the trial court erred in its computation of the parties’ debts. Admittedly, the trial court did err in crediting Duane Kennedy with the same $300 debt twice. Nonetheless, this error is minimal considering the total debt load he was ordered to assume.

Finally, Carole Kennedy insists that deferral of the $6,000 property settlement over a period of five years was not justified, considering her immediate need and Duane Kennedy’s clear ability to pay the entire sum. Payments over a period of time are ordinarily favored, absent reasons warranting immediate payment. See Bollenbach v. Bollenbach, 285 Minn. 418, 438-39, 175 N.W.2d 148, 161 (1970) (immediate payment ordered because there was a risk that ex-spouse might squander assets). While the trial court provided no reasons for its decision deferring the $6,000 payment in this case, we cannot conclude from the record that this decision was an abuse of discretion. See Nolan v. Nolan, 354 N.W.2d 509, 513 (Minn.Ct.App.1984), pet for rev. denied, (Minn.Dec. 20, 1984) (deferral of $250,000 payment based on an overall assessment of the equities of the distribution upheld).

II

Allowance of attorney’s fees in dissolution cases rests almost entirely within the discretion of the trial court and the award will not be disturbed absent a clear abuse of discretion. Kirby v. Kirby, 348 N.W.2d 392, 394 (Minn.Ct.App.1984). After considering the financial resources of both parties, the court may “require one party to pay a reasonable amount necessary to enable the other spouse to carry on or to contest the proceeding.” Minn.Stat. § 518.14 (1984).

Carole Kennedy’s legal fees total $7,103.34; Duane Kennedy was ordered to pay $2,000 or about 30 percent of the actual fees. Carole Kennedy claims that this amount is inadequate to enable her to pursue her legal rights. We agree. The disparity between the parties’ financial resources is great. Carole Kennedy is unemployed and received none of the parties’ cash assets, while Duane Kennedy’s resources, income and potential earnings are substantial in comparison. In failing more completely to cover appellant’s expenses, the trial court clearly erred.

Duane Kennedy contends that these attorneys’ fees represent a duplication of legal efforts because Carole Kennedy has changed counsel twice since the commencement of this proceeding. This is not an unreasonable objection. The award of attorneys’ fees is therefore remanded to the trial court for reconsideration. The trial court may disregard any fees which appear duplicatory.

Ill

A spouse is entitled to an award of maintenance if he has too little “property” to provide for “reasonable needs,” especially during a period of education, and if he cannot “adequately support” himself from earnings in “appropriate employment.” Minn.Stat. § 518.552, subd. 1 (1984). Factors to consider in determining the “just” amount and duration of maintenance include the resources of each party, the duration of the marriage, contributions of each spouse to the marriage, time the recipient needs for education leading to “appropriate” employment, and the couple’s previous standard of living. Minn.Stat. § 518.-552, subd. 2. A recent amendment also requires the court to consider other factors, including “[t]he loss of earnings, * * * and other employment opportunities foregone by the spouse seeking spousal maintenance.” 1985 Minn. Laws ch. 266, § 2 (effective August 1, 1985).

Carole Kennedy was awarded maintenance in the amount of $350 per month for a period of six months. In light of the controlling statutory guidelines, this award is grossly inadequate. Carole Kennedy is unemployed and unable to provide for her reasonable needs. She needs maintenance for a short period of time to offset a reduced standard of living. She may also need rehabilitative maintenance to provide for her reasonable needs during a period of education and to allow her ample time within which to reenter the job market and become self-supporting. Finally, she has foregone employment opportunities in order to care for her family and contribute to her husband’s career. The trial court’s award of spousal maintenance is reversed and remanded for further consideration in accordance with the statutory guidelines.

IV

A determination of child custody must be based on the best interests of the child and the court may not prefer one parent over the other solely on the basis of the sex of the parent. Minn.Stat. § 518.17, subd. 3 (1984). In assessing a child’s best interests, a court must consider “all relevant factors,” including the nine enumerated factors set out in Minn.Stat. § 518.17, subd. 1. The supreme court recently held that consideration of these factors “require[s] that when both parents seek custody of a child too young to express a preference for a particular parent and one parent has been the primary caretaker, custody be awarded to the primary parent absent a showing that that parent is unfit to be the custodian.” Pikula v. Pikula, 374 N.W.2d 705, 713 (Minn.1985).

The primary parent doctrine complements the statute by further insuring that a custody decision will serve the children’s best interests. - Several reasons were given for adoption of this preference, including the statutorily recognized need for stability in children’s lives and the fact that this stability is most often provided by the primary caretaker, the inherent imprecision in the application of the other statutory factors, and the pressing need for coherent decisionmaking. Id. at 712.

In this case, the trial court found a “fairly equal balance” between most of the statutory best interest factors. As to three of the factors central to the concept of stability¹, however, the trial court noted:

I feel that the children have a total adjustment to their rural home and their school. They have lived together in a stable home, for over five years. They have become adapted to a very delightful, healthy and educational environment, and have clearly profited from the exposure. Respondent’s position appears reasonably secure, and permanence of the family unit seems assured.

I have considered, also, the uncertainty of petitioner’s future plans. As recently as August she intended to move to Wisconsin, where she intended to go to school. By October she apparently changed her mind and made tentative plans to move to Stewartville. However, those plans, as yet, include neither job nor school.

Examination of these findings reveals that the trial court’s failure to consider the role of the primary caretaker resulted in a decision which the court in Pikula sought to avoid, i.e. one which misapplies the statute by seemingly discriminating against a traditional homemaker.

The children have lived together in a stable and satisfactory environment for over five years due to the efforts of both appellant and respondent. The trial judge commendably had a personal and private interview with the three oldest children. He was clearly impressed by the children’s enthusiasm toward their “farm/home.” The idyllic picture of this environment assumes a prominent position in the trial court’s findings. As such, the trial court seemingly gave preference to the respondent father because he was awarded the home. It seems dubious that the legislature intended a trial court’s award of property to be determinative of custody.

The trial court’s finding that Duane Kennedy’s position appears reasonably secure while Carole Kennedy’s is not, appears, under the facts of this case, to penalize her for assuming the role of traditional housewife and mother. In enacting laws designed to treat proposed custodians equally, we do not believe that the legislature intended to discriminate against the traditional homemaker; Carole Kennedy’s insecure job situation is inherent in a traditional homemaker-breadwinner family dissolution. It cannot be equated with instability and has little bearing on her ability to care for her children. Weatherly v. Weatherly, 330 N.W.2d 890, 892 (Minn.1983). Sufficient support can be ordered to stabilize the home finances should she be awarded custody upon remand.

The trial court’s emphasis on appellant’s uncertain future plans is misplaced. Sefkow v. Sefkow, 372 N.W.2d 37 (Minn.Ct. App.1985), pet. for rev. granted for purpose of remanding, 374 N.W.2d 733 (Minn. 1985). Nonetheless, upon remand we think it important that the trial court examine into the proposed custodial arrangements and career plans of each of the parents, bearing in mind that the record supports his finding that each of the parties is a suitable and proper person to have custody.

By failing to consider the question of primary caretaker, the trial court avoids recognition that emotional and psychological stability is “most often provided by and through the child’s relationship to his or her primary caretaker — the person who provides the child with daily nurturence, care and support.” Pikula, at 711. The trial court mistakenly interprets “stability” to mean financial stability and ownership of the homestead, rather than analyzing the intimacy of the relationships of children and parents.

Pikula directs a trial court to determine which parent has taken primary responsibility for the performance of the following caring and nuturing activities:

(1) preparing and planning of meals; (2) bathing, grooming and dressing; (3) purchasing, cleaning, and care of clothes; (4) medical care, including nursing and trips to physicians; (5) arranging for social interaction among peers after school, i.e. transporting to friends’ houses or, for example, to girl or boy scout meetings; (6) arranging alternative care, i.e. babysitting, day-care, etc.; (7) putting child to bed at night, attending to child in the middle of the night, waking child in the morning; (8) disciplining, i.e. teaching general manners and toilet training; (9) educating, i.e., religious, cultural, social, etc.; and, (10) teaching elementary skills, i.e., reading, writing and arithmetic.

Pikula, at 713-714 (quoting Garska v. McCoy, 278 S.E.2d 357, 363 (W.Va.1981).

Because it is not the function of this court to make findings of fact, this matter must be remanded for a determination of which parent was the primary caretaker at the time the dissolution proceeding was commenced. Pikula, at 714. The trial court should examine each party’s relationship with the children pursuant to the factors set out in Pikula; undue emphasis should not be placed on the relationship of respondent’s mother with her grandchildren. The grandmother did not apply for custody in this case and she may not be preferred over one of the natural parents in the absence of grave reasons for doing so. See, e.g., Wallin v. Wallin, 290 Minn. 261, 187 N.W.2d 627 (1971).

DECISION

The trial court’s decision and judgment is affirmed on the division and valuation of marital property.

The trial court’s decision regarding attorneys’ fees is reversed and remanded.

The trial court’s decision regarding spousal maintenance is reversed and remanded.

The trial court’s decision regarding child custody is reversed and remanded for a determination of which parent was the primary parent at the time the dissolution proceeding was commenced. The . trial court is instructed to make findings as to the legal custody of the children (sole or joint), their physical custody and residence, and their support. Minn.Stat. § 518.17, subd. 3.

Affirmed in part, reversed and remanded in part.

1 . Four of the nine statutory criteria rest on the "centrality of continuity of care and environment to the best interest of the child." Pikula, at 711 n. 1. The trial court in this case based its decision on three of those factors: (d) the child’s adjustment to his home, school, and community; (e) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; and (f) the permanence of the proposed custodial unit. See Minn.Stat. § 518.17, subd. 1.