Kostelnik v. Kostelnik
| Decision Date | 14 May 1985 |
| Docket Number | No. CX-84-1505,CX-84-1505 |
| Citation | 367 N.W.2d 665 |
| Court | Minnesota Court of Appeals |
| Parties | In re the Marriage of Roger A. KOSTELNIK, Petitioner, Appellant, v. Patricia M. KOSTELNIK, Respondent. |
Syllabus by the Court
1. Respondent may seek review of a judgment or order pursuant to Minn.R.Civ.App.P. 106 when there is an appeal, regardless of whether she moved for a new trial at the trial court level.
2. Trial court did not err in dividing the parties' property.
3. Trial court erred in failing to make a finding of appellant's net income, and in ordering appellant to pay $1800 per month for seven years in spousal maintenance.
4. Trial court did not err in allowing respondent's psychiatrist to testify to respondent's current condition or in cutting off appellant's rebuttal testimony.
Allen H. Aaron, Minneapolis, for appellant.
Jeanett Janecek, New Brighton, for respondent.
Heard, considered and decided by RANDALL, P.J., and SEDGWICK and HUSPENI, JJ.
Roger Kostelnik appeals from the trial court's order which divided the parties' assets and required him to pay maintenance of $1800 per month for seven years. Patricia Kostelnik also sought review under Rule 106, Minn.R.Civ.App.P. We affirm in part, reverse in part, and remand for the trial court to make a finding of Roger's net income and set maintenance at a reasonable level.
Roger and Patricia Kostelnik were married in 1957. Roger owns an insurance business and Patricia worked as a registered nurse until 1979. At the time of the hearing she was unemployed. In addition to her out of home employment, Patricia reared four children (all of whom are now emancipated) and performed the bulk of the housekeeping tasks throughout the marriage. Patricia also helped Roger set up his insurance agency and assisted him with various tasks in that connection throughout the marriage.
The trial court found Roger's gross income to be $93,000. It made no finding of net income or even gross income minus business expenses (taxable income). His 1981 income tax return showed pre-tax income of $65,871.
Patricia worked as a registered nurse until 1979, first as a general duty nurse and then as a supervisor. In 1979 she earned $1859 per month. She last renewed her license in 1980, but because she did not renew it again or take the 30 credits of required continuing education, her license expired in 1982. Testimony at trial indicated she could renew her license just by taking the 30 credits of continuing education and reapplying. The nursing supervisor at the hospital where Patricia worked until 1979 testified that Patricia would then be qualified for jobs there which, at the time of the hearing, paid $1940 per month. Other testimony, however, established that the market for nurses in the Twin Cities is tight, and that it would not be easy for a nurse of Patricia's age, health, and time away from nursing to find a job right away.
From August 1979 to September 1980 Patricia worked in a restaurant which she and Roger bought. She claims she cannot now return to nursing because of physical and mental health problems which disable her. Records indicate that the last treatment for the back injury she claims, however, was in 1967, and the other health problems she claims seem to have given her little trouble until they became an issue in this dissolution.
The trial court awarded the parties' homestead, valued at $98,000 and subject to a mortgage of approximately $41,000, to Patricia. It divided the parties' personal property approximately in half, and awarded Roger's business, which it valued at $12,486.06, to him. Roger was also required to pay $5,000 of Patricia's attorney fees. Using the court's figures, the percentage of assets awarded to Patricia was 57 and the percentage awarded to Roger was 43. Roger, however, contends that the trial court neglected to take into account encumbrances on a car valued at $3,000 and a boat valued at $3,500 which were awarded to him. These omissions, Roger argues, make his share of the property closer to 40%. Patricia contends that mistakes in valuation of the parties' home and Roger's business make her share smaller than 60%.
A pre-trial order issued in this case required Patricia's attorneys to give Roger's attorneys the name and expected testimony of any doctors who were to testify to any disability of Patricia's, as well as any updated reports on her physical or mental condition they received. The names of many doctors were disclosed, but no copies of reports and no expected testimony were ever sent. The last report Roger received was a report by Patricia's psychiatrist which stated that she was suffering from a transitory depression which would not disable her or be permanent. That same psychiatrist testified at trial that Patricia was, because of her continuing depression, disabled from working. Roger contends such testimony was in violation of the pre-trial order and should not have been admitted.
In response to what Roger anticipated that psychiatrist would say (based on the report stating that Patricia's depression was transitory), Roger called a psychiatrist who had given Patricia an adverse examination. He testified that Patricia's depression was normal, considering she was going through a divorce she had not wanted, and that, far from being disabled from working because of it, working would be therapeutic for her since it would keep her mind occupied. He also stated that in his opinion she had no physical problems that would preclude her from working as a nurse.
After Roger presented his case-in-chief, Patricia's psychiatrist testified that, in his opinion, Patricia's depression was disabling. As rebuttal, then, Roger attempted to call several witnesses to testify to recent activities by Patricia. Rather than allowing this rebuttal evidence to be presented, however, (which evidence would have gone to the issue of whether Patricia is disabled by her depression or her physical problems) the trial court stated that the trial was concluded. The trial had already continued on for more than twice as long as the attorneys had estimated, and the trial court had cautioned them many times to keep things brief. Roger's rebuttal testimony was later presented to the court by affidavit.
1. May Patricia seek review of the lower court's order refusing to amend the findings of fact even though she failed to make a motion for a new trial or make a post-trial motion for additional property or maintenance?
2. Did the trial court err in dividing the parties' property?
3. Did the trial court err in ordering Roger to pay $1800 per month in maintenance?
4. Did the trial court err in allowing Patricia's psychiatrist to testify to psychiatric disabilities, in light of the pre-trial order, or in cutting off Roger's rebuttal testimony?
Notice of Review
Minn.R.Civ.App.P. 106 states:
A respondent may obtain review of a judgment or order entered in the same action which may adversely affect him by filing a notice of review with the clerk of the appellate courts.
Roger contends that Patricia could not seek review of the trial court's order which denied both her and Roger's motions for amended findings of fact and conclusions of law since she would have been unable to appeal the same order had she desired to. (She did not make a motion for a new trial or for additional maintenance or property in her motion, only for amendments to the findings of fact to clarify the property division.) Rule 106 does not condition the right to file a notice of review on the order being an appealable order as to respondent, however. A notice of review may not be filed unless an appeal has already been commenced. Its purpose is to allow a matter that the appellate court will be hearing anyway to be heard in its entirety. As such, it would be counterproductive to require an order which respondent wants reviewed to be an appealable order as to the respondent.
The supreme court's decision in McGuire v. C. & L. Restaurant, Inc., 346 N.W.2d 605 (Minn.1984) supports this view. There, respondent did not move for a new trial at the district court level, but after appellant appealed the judgment in respondent's favor, respondent alleged errors of law by notice of review. The court rejected appellant's argument that respondent was precluded from alleging such errors, stating:
By taking this appeal, appellant forced respondent to participate in these appellate proceedings. In the interests of judicial efficiency, we believe it advisable to resolve all controversies between these parties at this time.
Property division
Patricia asserts that the property division was an abuse of the trial court's discretion...
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... ... See Minn. R. Civ.App. P. 106, 2009 advisory committee cmt. ¶ 3 (citing Kostelnik v. Kostelnik, 367 N.W.2d 665, 668–69 (Minn.App.1985), review denied (Minn. July 26, 1985)). The district court's order granting in part and ... ...
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...has established an independent basis for appeal, Wirig may seek review of an otherwise unappealable matter. Kostelnik v. Kostelnik, 367 N.W.2d 665, 669 (Minn.Ct.App.1985). Further, Wirig moved for amended findings on this issue; the court had an adequate opportunity to correct its error. Sa......
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... ... 1989). In order to properly consider a spouse's financial ability to pay, the court must determine that spouse's net or take-home pay. Kostelnik v. Kostelnik, 367 N.W.2d 665, 670 (Minn. App. 1985), review denied (Minn. July 26, 1985). Investment income is a factor to be considered by the ... ...