Peterson v. Peterson

• Decision Date: 14 May 1976
• Docket Number: No. 45668,45668
• Citation: 242 N.W.2d 103,308 Minn. 365
• Parties: Jeanette PETERSON, Respondent, v. Richard PETERSON, Appellant.
• Court: Minnesota Supreme Court

Page 103

242 N.W.2d 103

308 Minn. 365

Jeanette PETERSON, Respondent, v. Richard PETERSON, Appellant.

No. 45668.

Supreme Court of Minnesota.

May 14, 1976.

Syllabus by the Court

1. Upon a petition for a dissolution of marriage, the court is accorded broad discretion with respect to the division of property, allowance of alimony, provision for the custody and support of the children of the parties, and allowance for expenses of litigation. Absent a clear abuse of discretion, the court's findings and awards will not be disturbed.

2. Although L.1974, c. 107, § 4, amended Minn.St.1971, § 518.06, to eliminate the fault concept from the enumerated grounds for dissolution of the marital relationship, evidence of marital misconduct should, upon a proper showing, be admitted as one of the many factors to be considered by the trial court in the exercise of its discretion in the division of property and the award of alimony.

3. As the lower court found that the alleged misconduct in the instant case was too remote in time to be considered as the 'prevailing factor,' its decision to exclude it upon that basis is not error.

4. A conditional order directing punishment only upon respondent's failure to purge himself of his contempt is not a final order and is therefore nonappealable.

Grathwol, Ploetz, Oberhauser & Nodland, and Raymond C. Ploetz, Wayzata, for appellant.

Robins, Meshbesher, Singer & Spence, Ronald I. Meshbesher, and John P. Clifford, Minneapolis, for respondent.

Russell, Russell & McLeod and James H. Russell, Golden Valley, amicus curiae, seeking reversal.

Gordon, Kauffman & Metchnek, James Metchnek and Robert J. Levy, Minneapolis, amicus curiae, seeking affirmance.

Heard before KELLY, MacLAUGHLIN and SCOTT, JJ., and considered and decided by the court en banc.

SCOTT, Justice.

This is an appeal from an order for judgment and decree of dissolution of the marriage relationship between the parties, entered on January 23, 1975, in the Hennepin County District Court. Respondent below, Richard Peterson (hereafter respondent), seeks review of the trial court's division of property and alimony award. We affirm.

On July 15, 1972, Richard Peterson commenced an action for divorce against Jeanette Peterson (hereafter petitioner) which was, upon the parties' reconciliation, dismissed with prejudice by stipulation on February 28, 1973. The instant proceeding was commenced by Jeanette Peterson by service of summons and complaint on October 1, 1973. ¹

As the focal issues upon appeal concern the propriety of the distribution of property and of the alimony award, the financial circumstances of both parties are relevant. This proceeding sought to terminate a marriage of over 17 years which had produced three children: a daughter, then age 8, and two sons, then ages 13 and 16. At the time of the proceeding, the petitioner was 36 years old and employed as a bank teller, with net earnings of $342.02 per month. Her living expenses totaled $591 per month. The respondent was 42 years old and employed as a wholesale food broker, with net earnings of approximately $1,130.74 per month plus an automobile allowance of $115 per month. His monthly living expenses approximated $1,201.19.

The significant assets of the parties which were distributed by the court included a homestead subject to a mortgage in the amount of $17,769.32 and to a recorded attorney's lien in the amount of $6,022.60 in favor of respondent's attorney. The value of the homestead is apparently in dispute, for while petitioner contends that its value is $35,000, respondent has valued it at $41,000. The liability for the monthly mortgage payments was included in petitioner's statement of monthly living expenses. In addition to the homestead, the parties had accrued passbook savings in the amount of $15,416.13 and income tax refunds totaling $2,195.68.

The respondent's liabilities at the time of the proceeding, in addition to the home mortgage and attorney's lien, totaled approximately $11,562.66.

Upon dissolution of the marriage, the lower court ordered that custody of the daughter be awarded to petitioner and custody of the two sons be awarded to respondent. In lieu of further alimony, petitioner was awarded the homestead subject to the existing mortgage; $150 per month in child support; judgment in the amount of $1,650 for 50 percent of the pastdue mortgage and support payments; and reimbursement for monies expended by petitioner to reduce the pastdue 1973 Federal tax liability. Personal property was distributed to each party consistent with possession at the time of the order for judgment except for certain enumerated items held by petitioner which were awarded to respondent. Respondent was ordered to assume liability for the maintenance of health and life insurance policies for the benefit of the children; to discharge pastdue 1973 Federal tax liability in the amount of approximately $1,800; and to discharge and satisfy the attorney's lien on the homestead. Finally, the court reserved ruling upon the issue of respondent's contempt in his failure to remit mortgage and support payments for the period from June 1974 to December 1974.

Respondent assigns as error the distribution of property and the alimony award; the failure of the trial court to consider, solely for purposes of property distribution, evidence of petitioner's marital misconduct; and the court's failure to rule upon the issue of respondent's contempt for pastdue child-support and mortgage payments.

1. Respondent initially asserts that the lower court abused its discretion in its award of alimony and property distribution, in that it failed to adequately consider the comparative circumstances and liabilities of the parties. In addition, he asserts that no consideration was given to his allegations that petitioner had dissipated the assets during the pendency of the proceeding.

In Bollenbach v. Bollenbach, 285 Minn. 418, 426, 175 N.W.2d 148, 154 (1970), we stated 'It is axiomatic that in divorce cases the district court must be accorded a broad discretion with respect to the division of property, allowance of alimony, provision for the custody and support of the children of the parties, and allowances for expenses of litigation. * * * Minn.St. 518.58 permits the trial court to make such disposition of property acquired during coverture as 'shall appear just and equitable, having regard to * * * all the facts and circumstances of the case."

Upon application of this standard to the facts of record, we find that there has been no abuse of discretion.

Respondent argues that the trial court did not adequately consider his accumulated debts, including his Federal tax liability and the attorney's lien, and his need to provide for the two children in his custody. In addition, at the time of trial he had an overdue debt of $7,527.81 and a total debt, exclusive of the mortgage on the home and exclusive of attorneys fees for this action, of $11,562.66. Respondent earned an average monthly net income of $1,130.74 plus $115 auto allowance, with monthly expenses of $1,201.19. Petitioner, on the other hand, had net earnings of $342.02 per month and had monthly living expenses of $591, including mortgage payments of $204 per month.

The trial court clearly considered these circumstances as is evidenced by the reduction of the amount of support from $200 per month plus the mortgage payments to $150 and of the mortgage payment arrearages of respondent by 50 percent from $3,307.98 to $1,650, as well as by the award of a portion of the household furniture to him. In addition, as the court specifically found that respondent and petitioner had agreed at the time of filing the 1973 income tax return that respondent would assume responsibility for the Federal tax liability, its order is consistent with that agreement. The attorney's lien was filed by respondent's attorney and would have no relationship to petitioner. Under these circumstances, the property division and alimony award has an acceptable basis in fact and principle.

Respondent's contention that his wife dissipated their savings account and concealed assets in anticipation of and during the pendency of the proceeding has no basis in fact. Rather, the record indicates that $7,405 of the $13,412.31 petitioner had withdrawn was applied to pastdue Federal and state tax liability and attorneys fees pursuant to a court order. The remaining amount was consumed by the petitioner during the period from September 29, 1972, to September 29, 1973, for living expenses. Finally, the record discloses that income tax refunds in the amount of $2,195.68 had been expended by petitioner during this proceeding pending her receipt of support payments.

2. Respondent next contends that the trial court erred in failing to admit and consider evidence of the alleged marital misconduct of the petitioner in its distribution of property and award of alimony. At issue is an interpretation of legislative intent in amending Minn.St.1971, § 518.06, to remove all consideration of fault from grounds for dissolution of the marriage relationship and the amendment's effect upon statutes dealing with alimony and property distribution. An historical perspective of this court's review of property distribution and award of alimony is a necessary preliminary to judicial consideration of this legislative intent.

As early as 1877, this court discussed the propriety of consideration of marital misconduct for these purposes in Buerfening v. Buerfening, 23 Minn. 563, 564 (1877), in which we stated:

'But, while the adultery of plaintiff is not necessarily a bar to the action in such cases, it is proper to be pleaded, as a total or partial defence, to the claim for alimony. An adulterous woman cannot stand, in regard to alimony, the equal of one whose conduct is irreproachable. In determining the amount to be allowed, the good or bad conduct of the parties is always material.'

An...