Marriage of Schack v. Schack

354 N.W.2d 871, 1984 Minn. App. LEXIS 3540
CourtCourt of Appeals of Minnesota
DecidedSeptember 18, 1984
DocketCX-84-273
StatusPublished
Cited by7 cases

This text of 354 N.W.2d 871 (Marriage of Schack v. Schack) 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 Schack v. Schack, 354 N.W.2d 871, 1984 Minn. App. LEXIS 3540 (Mich. Ct. App. 1984).

Opinion

OPINION

CRIPPEN, Judge.

Hazel Schack appeals the trial court’s order vacating a previous order disqualifying the trial court judge and denying appellant modified findings or a new hearing on amended dissolution findings. She also appeals the amended dissolution judgment of September 13, 1983.

Appellant claims the trial court erred by allowing an expert witness to testify concerning the value of personal property which the appraiser never saw. She also claims the trial court did not find the original decree was founded upon mistake or fraud and thus did not have the authority to modify the original awards of maintenance and property. Finally, appellant claims the trial court did not have the authority to vacate an order disqualifying himself from the case for prejudice. We affirm.

FACTS

Appellant was granted a default dissolution November 24, 1982. On January 19, 1983, the trial judge first involved in the case reluctantly granted respondent’s motion to reopen the case and litigate the issues of spousal maintenance and distribution of assets.

An evidentiary hearing was held before another trial judge on June 2, 1983. Respondent presented evidence in an attempt to prove the inaccuracy of the original findings. Respondent retained an appraiser who testified as an expert witness. The appraiser had 11 years experience in appraisal of personal property. The property appraised included a truck, a tractor, household furniture and household furnishings. The appraiser personally inspected the truck and tractor but did not inspect the household items.

*873 Appellant’s evidence concerning the value of this personal property was based mainly on her own testimony. Her appraisal of the truck and tractor was based upon telephone calls to local dealers. She calculated the value of the household items by dividing the purchase price by two.

The court heard evidence concerning the value of two gas stations operated by respondent. Appellant’s original testimony at the default proceedings indicated the value of the two stations was $80,000. The evidence indicated appellant had not informed the court that one of the two stations’ leases would not be renewed.

Appellant originally informed the court that respondent had approximately $15,000 in a personal bank account in November 1982. Respondent testified that although he had a business account containing $15,-000 at that time, his personal account contained only $4,000. At the June 1983 hearing, appellant also testified that she had not disclosed a fur coat and several valuable items of jewelry to the court.

Respondent presented evidence that appellant had misrepresented her ability to work. Appellant originally testified she needed maintenance of $1,500 per month in order to attend school. At the 1983 hearing, however, appellant admitted she was an untrained but experienced bookkeeper and earned $1,000 per month prior to the divorce, working for the service station her husband operated. Appellant’s income at the time of the 1983 hearing also included $600-700 per month interest from the sale of the parties’ house and $278 per month from a contract for deed payment. Appellant testified her expenses were $1,300 per month.

Amended findings of fact were issued on September 13, 1983. The findings reduced the valuation of the gas station leases from $80,000 to $30,239, and also adopted respondent’s valuations of other personal property. The amount of appellant’s maintenance was reduced from $1,500 to $500 per month and reduced the term of maintenance from 48 to 16 months. The court gave respondent the right to the proceeds of the contract for deed payments of $278 per month.

Appellant brought a motion to have the June 2, 1983, evidentiary hearing reheard. On November 16, 1983, the day the motion was to be heard, appellant filed an affidavit of prejudice alleging the trial judge was biased because of a remark he made June 2, 1983 regarding appellant’s failure to list her fur coat as an asset. The trial judge issued an order on November 22, 1983 disqualifying himself from any further proceedings involving appellant and respondent.

The case then came before a third judge. Instead of considering appellant’s motion, the judge issued an order remanding the case to the trial judge for reconsideration of his disqualification and full consideration of the issues. On January 11, 1984, the trial judge issued an order vacating the November 22 disqualification order and denying appellant’s motion for a hearing on the September 13 amended findings.

ISSUES

1. Did the trial court err in admitting expert appraisal testimony from a witness who had not seen the valuated personal property?

2. Was there sufficient evidence of fraud or mistake in the original default dissolution proceeding to permit the trial court’s modification of spousal maintenance and property distribution?

3. Could the trial court rescind an order disqualifying himself for prejudice?

ANALYSIS

1. The admission of expert testimony lies within the sound discretion of the trial court. Walton v. Jones, 286 N.W.2d 710, 713 (Minn.1979). “[I]ts ruling will not be reversed unless it is based on an erroneous view of the law or is clearly not justi *874 fied by the evidence.” Kinning v. Nelson, 281 N.W.2d 849, 854 (Minn.1979).

The trial court properly admitted the expert testimony of respondent’s appraiser. An appraisal of personal property may be based on detailed lists describing the type and quality of the appraised property. See Minn.R.Evid. 703; see also State v. Mecklenburg, 273 Minn. 135, 146-48, 140 N.W.2d 310, 317-18 (1966). Under these circumstances, the method of appraisal went to the weight and not the admissibility of the appraiser’s testimony. See Northwest Airlines, Inc. v. Commissioner of Revenue, 265 N.W.2d 825, 831 n. 9 (Minn.1978); Alstores Realty, Inc. v. State, 286 Minn. 343, 350, 176 N.W.2d 112, 116-17 (1970).

2. Modification of spousal maintenance and property distribution is governed by Minn.Stat. § 518.64, subd. 2 (1982). Divisions of personal property under a decree of dissolution may be modified only where the court finds conditions that would justify reopening a judgment. Minn.Stat. § 518.64, subd. 2 (1982). “Under this statute property divisions are final and are not subject to modification except where they are the product of mistake or fraud * * Kerr v. Kerr, 309 Minn. 124, 126, 243 N.W.2d 313, 314 (1976). A showing of fraud or mistake in the original proceeding is also sufficient grounds for considering the correct amount of spousal maintenance. See Minn.Stat. § 518.64, subd. 2 (1982).

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Bluebook (online)
354 N.W.2d 871, 1984 Minn. App. LEXIS 3540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-schack-v-schack-minnctapp-1984.