Opinion
No. C7-98-2069.
Filed June 15, 1999.
Appeal from the District Court, Hennepin County, File No. 221981.
Kristy A. K. Rodd, Cynthia D. Stricker, (for respondent)
Kenneth A. Zullo, (pro se appellant)
Considered and decided by Randall, Presiding Judge, Davies, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant challenges an amended marriage dissolution decree and post-decree order. Additionally, he moves for attorney fees on appeal and for the court to recognize documents outside the record. Respondent moves for attorney fees on appeal and to strike part of appellant's brief. We affirm the district court's decree and the court's post-decree order, grant respondent's motions, and deny appellant's motions.
FACTS
Appellant Kenneth Andrew Zullo and respondent Jaye Ann Zullo were married in April 1983 and had a child together in October 1988. In May 1996, after appellant was injured in an accident and the family began to suffer financial difficulties, the parties separated. Respondent petitioned for dissolution of the marriage, and a judgment of dissolution was entered February 18, 1998. That judgment bifurcated the proceedings, leaving many financial issues to be resolved later. After an additional hearing, the trial court disposed of the remaining issues in an amended judgment. On October 12, 1998, the trial court issued a post-decree order modifying visitation, pursuant to respondent's motion. This appeal followed.
DECISION I.
Appellant challenges numerous findings and conclusions of the trial court regarding the division of the parties' household furnishings, marital homestead, and debts. The trial court has broad discretion in dividing property. Rutten v. Rutten , 347 N.W.2d 47, 50 (Minn. 1984). "There must be a clearly erroneous conclusion that is against logic and the facts on record before this court will find that the trial court abused its discretion." Id. (citation omitted). This court owes no deference to the trial court's legal determination that property is marital or nonmarital but, unless clearly erroneous, must affirm the findings of fact used to support that determination. Freking v. Freking , 479 N.W.2d 736, 739 (Minn.App. 1992). This court gives due regard to the trial court's determinations of credibility and the weight of the evidence. Minn.R.Civ.P. 52.01.
A. Household Furnishings
Appellant challenges the trial court's order that respondent can keep all of the furnishings and household goods in her possession. The division of marital property must be "just and equitable." Justis v. Justis , 384 N.W.2d 885, 888 (Minn.App. 1986), review denied (Minn. May 29, 1986). Although appellant argues that he wants half the dishes and one leather couch, there is no indication that the order was inequitable. The trial court did not abuse its broad discretion in distributing household furnishings. See Minn. Stat. § 518.58, subd. 1 (1998) (court may award household goods to either party, regardless of when acquired).
B. Marital Homestead
The trial court ordered the parties' marital homestead sold. Appellant concedes that the home was marital property but challenges the court's valuation of this lakeside home and of two dock sections he took. He also challenges the court's order that he contribute to the costs of selling the home.
1. Valuation
The trial court valued the marital home at $555,000 and the two dock sections at $2,000. Property valuation is a finding of fact. Hertz v. Hertz , 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). The record, which includes an affidavit of realtor Carolyn Jenkins stating that $555,000 was a reasonable price, supports the trial court's valuation of the home. The record also supports the trial court's valuation of the two dock sections. Although appellant testified that the sections were worth only $500 each, respondent testified that the dock sections were included in the purchase agreement but were removed before the closing, and the buyer of the marital home required respondent to pay $2,000 to preserve the buyer's expectations.
2. Sale Costs
Appellant argues that he should not be responsible for costs incurred in selling the homestead or that he should at least not have to contribute to unjustified expenditures.
Appellant argues that respondent should bear sole responsibility for all expenses relating to the marital homestead because the court allowed her to stay in the home. But sums spent to improve the marital home are considered marital debt when distributing marital property. Faus v. Faus , 319 N.W.2d 408, 412 (Minn. 1982). The trial court did not abuse its discretion by equally distributing the costs of preparing the marital home for sale.
Respondent promised to assume sole responsibility for all closing costs. Appellant asserts reliance on that promise. But the supreme court has recognized that a stipulation regarding the sale of property will not be enforced if it was improvidently made or if enforcement would be inequitable. John v. John , 322 N.W.2d 347, 348 (Minn. 1982). The record indicates that appellant was threatening to disobey a court order and respondent made the closing-costs concession to get him to cooperate in the closing. It would be inequitable to enforce this coerced promise.
Appellant claims that he should not have to contribute to the real estate agent's commission because respondent lacked authority to negotiate the allegedly excessive commission. But the district court had given respondent authority to select an agent to sell the house and she had implied authority to negotiate the commission because that is an integral part of selecting an agent. See Hornblower Weeks-Hemphill Noyes v. Lazere , 301 Minn. 462, 472, 222 N.W.2d 799, 805 (1974) (implied authority is actual authority to do things directly connected to and essential to business entrusted to agent).
Appellant also argues that the record does not support the trial court's finding that the repairs respondent made to the home were necessary. But the record indicates that only one offer had been made before the changes and that the real estate agents suggested that the home needed a "face-lift." Additionally, respondent testified, and appellant concedes, that a professional design consultant directed the changes. The trial court was faced with differing opinions, but the record supports its finding that the repairs were necessary.
C. Credit and Loan Debt
Appellant challenges the trial court's findings that: (1) respondent had never used appellant's credit cards; (2) debt on a credit line with First Bank of South Dakota was incurred by appellant without respondent's knowledge; (3) there was no marital debt owed to Tom Bernier; (4) the parties owed money to respondent's parents; and (5) the parties owed money to Nancy Le Corre. Each of these findings is supported by evidence in the record. Although appellant contends that the trial court improperly gave greater weight to respondent's testimony than to appellant's, we defer to the district court's credibility determinations and will not reverse these findings.
Appellant argues that he should not have to contribute to the payment of debts owed under a Norwest Bank joint line of credit. As with property acquired by one of the parties, a debt incurred by one of the parties after the marriage, but before the valuation date, is presumed marital until rebutted by proof to the contrary. See Minn. Stat. § 518.54, subd. 5 (1998) (defining marital property); Justis , 384 N.W.2d at 889 (debt is divided as property). The court did not abuse its discretion by distributing the debt equally.
II.
Appellant challenges the trial court's award of sole legal custody of the parties' child to respondent. The trial court has broad discretion to determine child custody. Rutten , 347 N.W.2d at 50. Reversal of a custody determination is warranted only if the trial court abused its discretion by making clearly erroneous findings that were unsupported by the evidence, or by improperly applying the law. Pikula v. Pikula , 374 N.W.2d 705, 710 (Minn. 1985).
Appellant argues that he and respondent orally agreed to joint legal custody, but he offered no proof beyond his bare allegation. Whether joint legal custody is appropriate depends on the best interests of the child considering four central factors. Minn. Stat. § 518.17, subd. 2 (1998). The trial court made findings on each of these four factors, and appellant does not dispute that the findings are supported by the record. The findings support the determination that joint legal custody would not be in the child's best interests and the trial court did not abuse its discretion by granting respondent sole legal custody.
III.
Appellant argues that he should have visitation when respondent goes out of town and for two additional overnight visits every two weeks. The trial court has extensive discretion in deciding visitation issues and will not be reversed absent an abuse of that discretion. Manthei v. Manthei , 268 N.W.2d 45, 45-46 (Minn. 1978). Appellant fails to show that the trial court abused its discretion by violating the best interests of the child. See Minn. Stat. § 518.175, subd. 1(a) (1998) (visitation must be in best interests of child). As it stands, appellant has visitation on approximately 45% of the days of each year, which is more than sufficient to maintain his relationship with his daughter. See Minn. Stat. § 518.175, subd. 1(a) (visitation must be scheduled to maintain parental relationship in best interests of child); see also, e.g., Digatono v. Digatono , 414 N.W.2d 498, 502 (Minn.App. 1987) (no abuse of discretion in visitation of only three weekends per month, two weeks per summer, and various holidays when record indicates careful consideration by court), review denied (Minn. Jan. 15, 1988).
IV.
Appellant contests the trial court's finding that his income, for purposes of calculating child support, includes residual payments from selling insurance. He claims those payments ended in April 1998. At trial, appellant testified that the payments would eventually be ending but did not give a specific date. The trial court's finding is supported by the record, which shows that the payments were part of appellant's income. The trial court did not err by finding that appellant's income included the residual payments.
Appellant challenges the trial court's refusal to deviate downward from guideline child support for the summer months, when appellant has six weeks of visitation. An award of child support is not overturned absent a clear abuse of discretion. Rutten , 347 N.W.2d at 50. The court may deviate from the child support guidelines in certain situations, but extensive visitation between the child and obligor does not require deviation from the guidelines. See Minn. Stat. § 518.551, subd. 5 (1998) (listing reasons to deviate and not including visitation time).
Appellant also argues that the trial court abused its discretion by ordering appellant to pay one-half of day-care costs for the couple's minor child. But this argument is nonsensical because the court order requires appellant to be responsible for the day-care costs only while the child is in his care.
V.
Appellant alleges that respondent has not complied with court orders. These issues were not litigated below and are not properly the subject of review. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
VI. A. Appellant's Liability for Respondent's Attorney Fees
Appellant challenges the trial court's award of attorney fees to respondent. A trial court may award attorney fees against a party who "unreasonably contributes to the length or expense of the proceeding." Minn. Stat. § 518.14, subd. 1 (1998). An award of attorney fees under this statute "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion." Jensen v. Jensen , 409 N.W.2d 60, 63 (Minn.App. 1987) (citation omitted).
The record indicates that: (1) the trial court had to issue four orders to compel appellant to cooperate in the sale of the marital home and to allow it to be listed at a reasonable price; (2) appellant unreasonably demanded that respondent pay all the costs of marketing and repairing the home; and (3) appellant, by not disclosing income, failed to comply with a request to supplement earlier discovery. This supports the trial court's finding that appellant unreasonably contributed to the length and expense of the proceeding.
Despite appellant's argument that respondent's attorney fees were unreasonably high, the award of attorney fees is supported by the record and was not an abuse of discretion.
B. Trial Court Denial of Attorney Fees
Appellant also challenges the trial court's failure to award fees to him. Refusal to award attorney fees will not be reversed absent a clear abuse of discretion. Kitchar v. Kitchar , 553 N.W.2d 97, 104 (Minn.App. 1996), review denied (Minn. Oct. 29, 1996).
The trial court did not abuse its discretion by failing to award fees against respondent for unreasonably contributing to the length or expense of the proceedings. To prove respondent's unreasonableness, appellant relies on an alleged statement of a district court judge that respondent was "vindictive." But such a statement alone would not provide sufficient proof and the record does not even contain this statement. Appellant offered no other evidence of respondent's unreasonableness except that she walked out of one settlement negotiation. But respondent testified that this was only after appellant refused to review the proposal that was the subject of the meeting and was abusive to her and her attorney.
The court also did not abuse its discretion by refusing to grant appellant attorney fees due to the disparate resources of the parties because such an award could only be made if appellant were asserting his rights in good faith, which he was not. See Minn. Stat. § 518.14, subd. 1(1) (1998) (fees may be awarded if "necessary for the good-faith assertion of the party's rights").
C. Attorney Fees on Appeal
Respondent moves for attorney fees and costs connected with this appeal. Fees may be awarded for bad-faith appeal of a dissolution judgment. Kitchar , 553 N.W.2d at 104. Appellant does not agree with the trial court, but that court's findings and the resultant conclusions are supported by the evidence and the law. Because appellant's arguments have no merit under the law or within a reasonable extension of the law, we grant respondent attorney fees for this appeal. Respondent's counsel, pursuant to Minn.R.Civ.App.P. 139.06, subd. 1, shall provide to this court, and serve on appellant, sufficient documentation for this court to determine the appropriate amount of fees. Appellant may serve a response, if any, under Minn.R.Civ.App.P. 139.06, subd. 2.
We deny appellant's request for fees on appeal.
VII.
Respondent moves to strike portions of appellant's brief pertaining to the first phase of the trial and to strike documents from the appendices to appellant's briefs.
No transcript of the first phase of the trial court proceedings was included in the record. We strike all references to these hearings, for which this court has no transcript; but we do consider documents filed in the record and orders from the earlier stages of this proceeding that affect the merits of the appeal. See Minn.R.Civ.App.P. 103.04 (court may consider orders underlying and affecting the merits of the order appealed).
Respondent moves to strike documents included in appellant's appendix at A6 and in appellant's reply brief appendix at 1, 1b, 4, 5, 6, and 7. These documents were not filed in the trial court. We strike these documents because the appellate record consists of "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings." Minn.R.Civ.App.P. 110.01. For the same reason we also deny appellant's motion to consider other documents not part of the record below.