In re the Marriage of: Steven E. Nogosek, petitioner, Appellant, vs. Kristine L. Nogosek, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-289

 

 

In re the Marriage of:

Steven E. Nogosek,

petitioner,

Appellant,

 

vs.

 

Kristine L. Nogosek,

Respondent.

 

 

Filed December 30, 2003

Affirmed
Crippen, Judge*

 

Dodge County District Court

File No. F0-01-000752

 

David W. VanDerHeyden, VanDerHeyden and Ruffalo, P.A., 302 Elton Hills Drive Northwest, Suite 300, P.O. Box 6535, Rochester, MN  55903-6535 (for appellant)

 

Barbara A. Swisher, Patterson, Ostrem & Swisher, Historic Kelly Building, 7 Fourth Street Southeast, Rochester, MN  55904 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Hudson, Judge, and Crippen, Judge.

 

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Because this dissolution judgment appeal is largely confined to disputes of trial court fact findings that are adequately supported by the record, we affirm. 

FACTS

            In a November 2002 judgment, after 19 years of marriage, appellant Steven E. Nogosek, age 48 at the time of trial, and respondent Kristine L. Nogosek, age 47, were divorced.  Appellant challenges that factual basis for the award to respondent of permanent spousal maintenance in the amount of $800 per month, the finding that respondent had a $20,000 nonmarital interest in the parties' home, the division of property, and the valuation of two items of personal property.  Although his brief makes repeated observations on the trial court's exercise of discretion, all of these arguments rest on a challenge of underlying findings of fact. 

D E C I S I O N

            Trial court findings on underlying facts must be sustained unless they are clearly erroneous.  Minn.  R.  Civ.  P. 52.01.  "[F]indings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.  If there is reasonable evidence to support the [trial] court's findings, we will not disturb them."  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999) (quotation omitted); see Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000) (noting that when, on appeal, a party challenges a trial court's findings of fact, the party is required to cite all of the evidence supporting the challenged finding and explain why this evidence is insufficient to support the challenged finding).

1.  Maintenance Award

            Spousal maintenance is an award from a divorce proceeding of "payments from the future income or earnings of one spouse for the support and maintenance of the other."  Minn. Stat. § 518.54, subd. 3 (2002).  A court may grant a maintenance order for either spouse if it finds that the spouse seeking maintenance lacks sufficient resources to meet his or her needs and is unable to provide adequate self-support.  Minn. Stat. § 518.552, subd. 1(b) (2002) (also enumerating factors that must be considered and setting standards governing the amount and duration of the award, temporary or permanent).

            A.         Respondent's Income

            Appellant argues that the trial court erred in setting maintenance based on the income respondent earns working part time as the self-employed operator of a cleaning business rather than on her earning capacity if she worked full time.  When imputing income to a maintenance recipient, a "trial court may impute a party's income to be her earning capacity for the purposes of setting maintenance, if it first finds that the party was underemployed in bad faith."  Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997).

            Appellant argues that because respondent testified that there were "no" restrictions on her ability to work, she is capable of working full time.  Respondent testified that her "health was good and that [she] didn't have any restrictions" on her ability to earn income.  But respondent also testified that she had been experiencing back pain, for which she was receiving physical therapy, and that she had tried working more hours but was unable to do so due to her back problem.  Respondent's testimony demonstrates only that her physical condition did not impact her ability to work part time.

            Appellant also cites respondent's previous employment in an administrative position during the marriage, which was a full-time position or nearly so.  But respondent was fired from that position in June 1999, and her testimony and income tax returns for the years 2000 and 2001 show that she was fully established into her present self-employment pattern by the time the parties separated in November 2001.

            The trial court found that respondent's education, skills, and experience in the workforce are outmoded, that her earning capacity is temporarily diminished to $1,200 per month of taxable income, and that during the marriage respondent made contributions as a homemaker in furtherance of appellant's employment.  Those findings are not clearly erroneous.  The trial court's findings also show that it included rental income of $300 per month in respondent's income.  The court did not err in determining respondent's income and need for maintenance.  See id. (trial court may not impute income where "a homemaker has continued to work the same part-time hours at the time of dissolution as she did during the marriage, has been employed in the same type of position as she was during the marriage, and where there is no evidence of any intent to reduce income for the purposes of obtaining maintenance"); Coffel v. Coffel, 400 N.W.2d 371, 374-75 (Minn. App. 1987) (spouse seeking maintenance is not required to change vocations for a more lucrative position); Sand v. Sand, 379 N.W.2d 119, 124 (Minn. App. 1985) (spouse seeking maintenance does not incur an obligation to increase her earning power through occupational retraining), review denied (Minn. Jan. 31, 1986).

            B.         Appellant's Income

            Appellant argues that the trial court erred in determining his income.  Appellant's taxable income for the tax year 2001 was $41,079.  But, as the trial court noted, appellant's income in 2001 was lower than usual because he was on disability for three months that year.  The trial court's finding that appellant will earn a gross income of $51,833 in 2002, plus additional nontaxable income, is supported by an income report prepared by appellant's employer that was admitted into evidence at trial and shows appellant's income for January 1, 2002, through July 15, 2002.

            Appellant also objects to the trial court's inclusion in his income of nontaxable earnings without any offset for business-related expenses.  Appellant submitted into evidence receipts and canceled checks, which he claimed represented his monthly living expenses while traveling on business.  This business-expense evidence was not clearly developed, and it is evident from the trial court's findings that the court discounted the credibility of that evidence.  We defer to the trial court's credibility determinations.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

2.  Nonmarital Property Claims

            Although the ultimate determination of whether property is marital or nonmarital is a question of law, we must defer to the trial court's findings on underlying facts, such as the resources used to acquire property.  Rosenberg v. Rosenberg, 379 N.W.2d 580, 583 (Minn. App. 1985), review denied (Minn. Feb. 19, 1986).  The commingling of nonmarital and marital property may not be fatal to a party's claim to a nonmarital interest in property.  Carrick, 560 N.W.2d at 413.  To award a nonmarital interest in commingled property, the court need not apply a strict tracing standard.  Kottke v. Kottke, 353 N.W.2d 633, 636 (Minn. App. 1984), review denied (Minn. Dec. 20, 1984).  Instead, a party need only show by a preponderance of evidence that the asset was gained in exchange for nonmarital property.  Doering v. Doering, 385 N.W.2d 387, 390 (Minn. App. 1986).

            A.         Homestead

Respondent testified that the parties used money she inherited from her parents' estates to finance home improvements and submitted receipts totaling $20,000 for home improvements done in the years following her parents' deaths.  That evidence supports the trial court's award to respondent of a $20,000 nonmarital interest in the homestead.  See id. at 391 (holding that party's undocumented testimony sufficient to trace property to nonmarital source).

            B.         Pension

Appellant argues that he worked for the railroad for nine years before the marriage and 18 years during the marriage, and that the trial court erred by failing to award him a 9/27 nonmarital interest in his Tier II railroad pension.  Appellant has identified no evidence, and we can find none showing that the pension account existed before the marriage or that, if it did, what value was attributable to that time period.  Absent such evidence, we cannot conclude that the trial court erred in declining to award appellant a nonmarital interest in the pension.

3.  Property Division

When a marriage is dissolved, "the court shall make a just and equitable division of the marital property of the parties."  Minn. Stat. § 518.58, subd. 1 (2002).  An appellate court will not reverse a trial court's valuation of an asset unless it is "clearly erroneous on the record as a whole."  Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975).  An appellate court does not require the trial court to be exact in its 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).

            Appellant argues that the trial court erred in finding that there was $2,000 equity in the Chevrolet pickup truck awarded to him.  A prehearing exhibit submitted by appellant supports the trial court's determination of $2,000 equity in the truck, and respondent testified that appellant declined to provide her with the loan application for the truck.  Appellant also contends that the trial court should have accepted his valuation of a camper, but the parties presented conflicting evidence on the issue.  The trial court's finding on the amount of equity in the camper is not clearly erroneous.

            Appellant's argument that he was entitled to an offsetting award for the equity in a Tracker vehicle awarded to respondent is premised on his argument that the trial court erred in its asset valuations.  Accordingly, the argument fails.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.