Marriage of Kottke v. Kottke

353 N.W.2d 633, 1984 Minn. App. LEXIS 3389
CourtCourt of Appeals of Minnesota
DecidedAugust 7, 1984
DocketC9-83-2036
StatusPublished
Cited by42 cases

This text of 353 N.W.2d 633 (Marriage of Kottke v. Kottke) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marriage of Kottke v. Kottke, 353 N.W.2d 633, 1984 Minn. App. LEXIS 3389 (Mich. Ct. App. 1984).

Opinion

OPINION

CRIPPEN, Judge.

This is an appeal from three parts of the division of property in a marriage dissolution case. We affirm.

FACTS

Gary and Kathleen Kottke were married on August 20, 1960. Appellant was 42 years old and respondent was 40 at the time of the dissolution. They had three children who had reached their majority and were emancipated. The Kottkes had owned their home in Bloomington since 1978 and had previously lived with Kathleen’s mother for 14 years.

At the time of the dissolution, Gary Kottke’s gross annual income was $28,-739.81. He had completed 16 years of service credit toward his pension, which he is eligible to receive upon reaching age 50. In addition, appellant is a corporate pilot and flight instructor, from which he earned approximately $5,500 in 1982.

Respondent is employed by United States Merchandise Corp., earning an annual income of $12,000. No spousal maintenance was sought by or awarded to either party.

The parties separated in September 1982 and this action was commenced in January *635 1983 by respondent. At the time of separation, appellant stayed in the homestead of the parties and respondent left, taking with her the 1980 Buick Regal automobile. Appellant continued to make payments on the vehicle through a biweekly payroll deduction.

A temporary order was issued April 7, 1983, in relevant part ordering respondent to make all car payments beginning March 22,1983. Appellant was awarded exclusive occupancy of the home, subject to all ownership obligations, including all mortgage payments. Appellant also continued to pay $86.77 in biweekly car payments when respondent found that she was unable to afford the payments. Respondent surrendered the car to appellant.

After a June 1983 trial, the trial court ordered dissolution of the marriage and its division of property included these relevant parts:

1. Kathleen Kottke was awarded the 1980 Buick Regal, $18,846 “for her non-marital interest,” and a one-half interest in a percentage of Gary Kottke’s pension benefits at the time they are payable.

2. Gary Kottke was awarded the part of future pension plan benefits not awarded to Kathleen.

3. Gary Kottke was awarded the $128,-000 home of the parties subject to a $68,-750 incumbrance. The property was to be sold by 1984 and the equity divided equally after payment of the incumbrance, sale expenses, respondent’s $18,846 non-marital interest, $2,000 to appellant for home improvement debts, and reimbursement to appellant for future capital improvement costs and principal payments on the mortgage.

Appellant moved for amendments of the trial court decision and for a new trial. The court denied the motion for a new trial, amended one finding of fact due to a clerical error, and amended a conclusion of law to award appellant the 1980 Buick Regal because respondent was unable to make the payments and had given appellant possession of the ear. Appellant brought this appeal, claiming reversible error in parts of the division of property.

ISSUES

1. Did the trial court err in finding that respondent’s inheritance was traceable to the homestead of the parties, or in awarding respondent a benefit based on her inheritance?

2. Did the trial court abuse its discretion in awarding respondent a continued interest in appellant’s pension?

3. Did the trial court abuse its discretion in not awarding judgment to appellant for car payments which respondent was unable to make before surrendering possession of the car to appellant?

ANALYSIS

A division of marital property must be “just and equitable.” Minn.Stat. § 518.58 (1982). Absent an abuse of broad discretion the division determined by the trial court will not be disturbed. Taylor v. Taylor, 329 N.W.2d 795 (Minn.1983). Related findings of fact must be upheld unless clearly erroneous. Rule 52.01, Minn.R. Civ.P.

1.

It must be “presumed” that property of each spouse is marital property for purposes of division in a dissolution case. Minn.Stat. § 518.54(5) (Supp.1983). However, non-marital property specifically includes an asset inherited by one spouse from a third party. Section 518.54(5)(a) (Supp.1983).

Non-marital property also includes all or part of an asset acquired through investment of non-marital property, including an inheritance. Brown v. Brown, 316 N.W.2d 552 (Minn.1982).

Judicial decisions for tracing a current asset to its source were confirmed in 1978 by the Minnesota Legislature. Minn.Stat. § 518.54(5)(e) (Supp.1983) provides:

“Non-marital property” means property real or personal, acquired by either spouse before, during, or after the exist *636 ence of their marriage, which ... (c) is acquired in exchange for or is the increase in value of property which is described in clauses (a), (b), (d), and (e) ....

Consequently, the trial court lawfully views as non-marital property a portion of the homestead “readily traceable” to an earlier inheritance by Kathleen Kottke.

During the marriage, respondent learned she would receive an inheritance of more than $27,000 from her uncle. When the Kottkes learned of the forthcoming inheritance, they decided to purchase a lot and build a home. Because the estate was taking a long time to settle, Kathleen’s uncle loaned the couple money in anticipation of the inheritance. The parties signed a note for $13,500 in December 1978. The lot was purchased at that time for $22,500. The Kottkes borrowed $7,300 from appellant’s credit union to pay the balance on the lot and then borrowed $7,300 from respondent’s uncle to pay off the loan made at the credit union.

When respondent received the inheritance in October 1979, she put the check from the estate into the Kottke’s joint checking account. The Kottkes used the funds to pay back her uncle and the rest was used to purchase things for the house.

Appellant argues that because the inherited funds were not placed in a separate account, the funds were commingled, and the court was "powerless to assign a non-marital interest in the property.”

Contrary to appellant’s assertion, the weight of the evidence supports the finding that the inheritance is readily traceable. The court based its finding on the notes that were issued by the Kottkes to Kathleen’s uncle to be paid “on settlement of H. Aanerud Estate; on the testimony that when the Kottkes learned that Kathleen would be inheriting a sizeable amount of money, they decided to purchase a lot and build a home; on testimony of Gary Kottke that the parties were dependent on Kathleen’s inheritance in buying the lot and building the home, and on evidence that the Kottkes used the same joint checking account to deposit and withdraw funds from the notes, pay for the lot and deposit the inheritance.

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Bluebook (online)
353 N.W.2d 633, 1984 Minn. App. LEXIS 3389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-kottke-v-kottke-minnctapp-1984.