Opinion
No. A04-268.
Filed August 24, 2004.
Appeal from the District Court, St. Louis County, File No. F1-02-600558.
Susan R.Z. Rees, (pro se respondent).
Thomas F. Andrew, Brown, Andrew Signorelli, P.A., (for appellant).
Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
In this post-dissolution matter, appellant challenges the partial denial of his motion to amend the division of marital property. Because we are not left with a firm and definite conviction that mistakes were made regarding two bank accounts and because we conclude that the district court's valuation of the amount the marital estate is owed by appellant's parents' estates falls within a reasonable range of values, we affirm those determinations; because we are convinced that a mistake was made with regard to the checking account of appellant's mother's estate, we reverse that determination.
FACTS
When the parties were married in 1977, appellant William Rees, then 43, was an Air Force Lieutenant Colonel and respondent Susan Rees, then 33, was teaching at a college. They settled and raised their family in Duluth; of their three children, only the youngest was a minor at the time of the parties' dissolution.
Appellant retired from the Air Force in 1982. Later, he attended law school, graduating in 1991. His father became seriously ill in 1991, and appellant began spending about half of his time in Kentucky managing his parents' farms and, after their deaths in 1993 and 2002, their estates. Probate of the estates was complex, and neither of the estates has been closed. The parties separated in 2001.
In their dissolution action, the parties stipulated to all issues except property distribution. Following a trial, the district court determined which property was marital and which nonmarital and distributed property to the parties. Appellant moved for amended findings; his motion was granted in part and denied in part. The amended order awarded respondent the parties' $145,000 homestead and marital assets valued at $124,587.19 and nonmarital assets valued at $7,986.43; appellant received marital assets of $272,982.44 and nonmarital assets of $851,857.05.
Appellant challenges the denial of parts of his motion, claiming that the district court erred in determining that certain bank accounts were marital property, that a checking account was nonmarital property, and that the district court's valuation of the amount due to the marital estate for expenses and services provided by appellant to his parents' estates was not within a reasonable range of figures.
On 24 May 2004, respondent notified this court that she would not submit a brief. Her brief would have been due on 17 June, 30 days after appellant's brief was served. See Minn. R. Civ. App. P. 131.01, subd. 2 (requiring the respondent to serve and file a brief within 30 days after service of the appellant's brief). But on 9 July, respondent filed a "Motion to Correct Defects in Appellant's Brief" that was, in fact, both a motion to strike appellant's brief and a respondent's brief. Because the brief was untimely and respondent had not moved for an extension of time under Minn. R. Civ. App. P. 131.02, her brief is stricken. In addition, respondent's motion to strike appellant's brief is denied.
DECISION
1. Bank Accounts
Whether property is marital or nonmarital is a question of law, but a reviewing court must defer to the trial court's underlying findings of fact. However, if we are left with the definite and firm conviction that a mistake has been made, we may find the trial court's decision to be clearly erroneous, notwithstanding the existence of evidence to support such findings.
Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997) (quotation and citation omitted).
a. Gradison Account #32689637
In its amended findings of fact, the district court found that
[appellant] established this account in approximately 1993 after [his] father's death. . . . As of July 31, 2003, the account had a value of $242,023. . . . According to the parties' tax returns (Exhibit 60), at least $66,104 marital interest and dividends has been earned from the account and reinvested back into the account. The parties used this money, in part, to pay for education, house bills, and other living expenses since 1993. The Court finds that as of the date of June 30, 2003, the account had a marital component of 10% or $24,203.83 and [appellant's] non-marital interest is $217,834.51.
Appellant argues that the entire account is nonmarital.
A party seeking to establish the nonmarital character of an asset must do so by a preponderance of the evidence. In order to maintain its nonmarital character, nonmarital property must be kept separate from marital property or, if commingled, must be readily traceable. . . .
. . . Where a party cannot show that nonmarital money was invested in a readily traceable asset, the trial court should characterize it as marital property.
Wopata v. Wopata, 498 N.W.2d 478, 484 (Minn.App. 1993) (reversing determination that property was nonmarital because "record [was] devoid of any evidence that explain[ed] what ultimately happened to the aforementioned sums after they were received[, and] . . . evidence produced at trial suggests that these amounts were commingled with marital funds") (citations omitted).
Appellant's testimony about the Gradison account suggests commingling. When asked if "anything that's happened in this account is still yours and is nonmarital," appellant answered, "That's not a correct statement. I didn't mean to say that it wasn't marital at some point. . . . [M]y position is I have transferred far more money to Duluth for family purposes than I have generated from Kentucky income in Kentucky." If, as appellant testified, the account was "marital at some point," commingling clearly occurred. Appellant himself so testified. When asked, concerning the Gradison account, "[T]he fact is it's all been commingled; isn't that right?" he answered, "Every grain of wheat in these silos down here is commingled. That's right."
Any nonmarital portion must be readily traceable. See id. The record does not show that any part of the account is traceable to a nonmarital source. The district court's finding that ten percent of the account is marital property does not leave us "with a definite and firm conviction that a mistake has been made," Olsen, 562 N.W.2d at 800 (quotation omitted).
b. First National Bank of Kentucky (FNBK) Account
The district court found that the FNBK account had a value on May 2, 2003, of approximately $26,628. Dividends from the [FNBK] stock and interest from other assets, which are both marital, were deposited into the [FNBK] checking account. [Appellant], by his testimony and Exhibits 62 and 44, determined that these deposits of interest and dividends during the marriage were $45,113. . . . [Appellant] has failed to meet his burden of proof that this checking account is non-marital.
Again, appellant's testimony supports this finding. When asked about commingling in this account, he said, "[I]t's a ridiculous question" and, "Commingling is the wrong term to use" and added that he had thought that commingling "was a lousy term" when he was in law school. When the question was rephrased to "You do not dispute the fact . . . that some of that money [in the account] was represented by earnings over the years in the [FNBK] account?" appellant answered, "At some point some dollars were earned." Another exchange further demonstrates appellant's failure to meet his burden in showing that the account was nonmarital.
Q. [Y]ou show the [FNBK] account to be $26,628.55. . . . [Y]our previous testimony clearly showed that that account was at one point down to zero, so didn't every single thing in that account now have to have been interest or dividends [that are] marital?
A. Oh, no, all the cash contributions from . . . three estates have gone through that account, scores of thousands of dollars. . . .
Q. Where is all of that documentation?
A. It's in the bank.
Appellant did not provide either documents or testimony to show that the account was nonmarital. Again, we are not "left with [a] definite and firm conviction that a mistake has been made," Olsen, 562 N.W.2d at 800 (quotation omitted), by the determination that this account was marital property.
Appellant used $15,000 from this account to purchase the mobile home in which he lived after he moved out of the parties' home. The district court concluded that this was a marital asset awarded to appellant. Our determination that the account was marital leads us to affirm that conclusion.
2. Amount Due Appellant for Estate Services
An appellate court does not require the district 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) (citing Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975)).
Appellant testified that he and his sisters agreed that he would be entitled to $60,000 from his parents' estates, $54,500 for labor and $5,500 for expenses. The district court agreed with appellant that his parents' estates owe him $54,500 for labor, but disagreed as to the amount owed for expenses, finding that:
The tax returns in Exhibit 60 reflect [that] at least $41,664 in farm-related expenses paid by the parties should have been reimbursed from the farm account. The parties received payment of $7,847, leaving a claim of $33,817 for expenses through 12/31/01 against the farms and [appellant's] parents' estates. The Court finds [appellant's] testimony that [only] approximately $5,500 of expenses is due to be reimbursed is not credible.
"[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01.
Appellant was shown an exhibit indicating that he had spent approximately $11,000 on travel and other expenses for his parents' estates. He was then asked, "So of the $11,000 . . . the estate still owes you about $5,500?" He answered, "Something like that, plus or minus $1,000." The district court's finding that appellant's testimony that his parents' estates would reimburse him $5,500 for his expenses not to be credible was supported by both testimony and documentary evidence. We therefore affirm that finding.
3. Checking Account
If this court is firmly convinced that a mistake has been made in a determination of nonmarital property, it may find the trial court's decision to be clearly erroneous. Olsen, 562 N.W.2d at 800. The district court awarded appellant as a nonmarital asset an estate account maintained by appellant and his sister as co-executors of their mother's estate and containing $233,321.79 in estate funds. Appellant claims that the account is not his property but the estate's property. The record supports appellant's argument, and absent evidence to the contrary, we reverse the determination that the estate account is appellant's nonmarital property.
Respondent apparently argued that this account did not belong to appellant; her proposed findings did not list the account as one of appellant's nonmarital assets.