April was a relatively active month for family law appellate decisions, on issues ranging from parenting time and property division, to spousal maintenance and domestic abuse. Two opinions were particularly interesting.
Lacking net-income evidence
In Wood v. Wood, Husband and Wife were married in 1981. The parties were the parents of four adult children. Wife commenced an action for dissolution of marriage in 2016.
At the time of trial, Husband was employed as a full-time lineman for a cooperative. He provided his paystubs to the District Court, which determined that he earned gross monthly income of $7,478.00. The court found that Husband’s reasonable monthly expenses totaled $4,655.00.
Wife was unemployed at the time of trial. The District Court imputed gross monthly income of $2,850.00 per month to Wife based on a vocational assessment that was received into evidence. The court found that Wife’s reasonable monthly expenses totaled $5,825.00.
In the parties’ judgment and decree, the District Court noted that Wife was “unable to provide adequate self-support based on the standard of living established during the marriage.” The District Court awarded temporary spousal maintenance in the amount of $2,700.00 per month for five years.
In determining the maintenance award, the District Court stated that it was unable to calculate the anticipated “net income” of Wife for purposes of determining spousal maintenance. As a result, the District Court found it equitable to use the parties’ gross incomes to determine the issue.
The court reasoned that, after deducting the parties’ reasonable monthly expenses from their gross incomes, Husband had a $2,823.00 monthly surplus, while Wife had a monthly deficit of $2,965.00. As a result, the District Court awarded Wife $2,700.00 per month in spousal maintenance.
Husband moved for amended findings, contending that the court erred in using the parties’ gross incomes in awarding spousal maintenance. Husband argued that the District Court should have used the net income of each party.
The court denied Husband’s motion and noted that spousal maintenance was a “central issue” in the case and that “the parties should be expected to introduce evidence of their respective net incomes.” Neither party had introduced evidence of Wife’s net income. In response, the court said it could not be expected to “divine new evidence from the actual evidence submitted at trial.”
On appeal, Husband argued that the maintenance award of $2,700.00 per month was unreasonable because it consumed nearly 70% of his net income.
Judge Jill Halbrooks noted that in order to determine ability to pay, “the court must make a determination of the payor spouse’s net or take-home pay.” She suggested that “we sympathize with the district court’s struggles with an incomplete record…but without factual findings on both parties’ net incomes, we are unable to fully review the reasonableness of the maintenance award.”
Accordingly, the Court of Appeals reversed and remanded for the District Court to reopen the record to calculate Husband’s net income and receive evidence of Wife’s net income.
The challenge in Wood rests in the fact that Wife failed to provide the necessary evidence to support her claim for spousal maintenance. Would reversal have resulted if the District Court failed to award any maintenance to Wife? She had the burden of proof. On the evidence before the court, no maintenance should have been awarded to Wife.
As a practitioner, keep the Wood case in mind as you prepare for a maintenance trial involving an unemployed party. An accountant should be hired to run a cashflow analysis and provide testimony.
OFP on hearsay evidence affirmed
In In the Matter of Larson, Mother filed a petition for an order for protection against her ex-husband, on behalf of the parties’ six-year-old daughter. Mother alleged that Father dropped the child on a kitchen table.
The District Court issued an ex parte Order for Protection, and an evidentiary hearing was held.
At the evidentiary hearing, Mother alleged that the child spent a weekend with Father. A day after the child returned to Mother’s home, the child complained about a headache and that Father came up from behind, picked the child up, and dropped him on the kitchen table where he fell onto the chairs on the way down to the floor. Mother noticed slight bruising on the child’s cheek and took pictures of it.
The child’s therapist testified that the child shared with her that Father “had picked him up by the tummy and had dropped him on the table and then he subsequently hit a chair or two chairs on his way down…receiving a bruise on his left cheek.”
Despite Father’s denial of the allegations, the District Court granted Mother’s petition for an OFP, finding that Father pushed and dropped the child, causing bruising.
On appeal, Father argued that the court’s finding of abuse was based solely on hearsay. He suggested that the witness who testified that Father pushed or dropped the child did so based on the child’s out-of-court statements.
However, Father failed to object to the admission of hearsay statements during the evidentiary hearing and so the District Court did not consider whether they were admissible. Judge Tracy Smith noted that “[a]n appellate court generally will not consider matters not argued to and considered by the district court.”
At trial, keep in mind that your sole function is to establish facts and make a record. Father appears to have represented himself at the evidentiary hearing and likely wasn’t aware of the need to preserve an objection.
Testimony involving statements made by a child can be tricky. On the one hand, counsel can make a hearsay objection precluding admission. At the same time, most would agree that the interests of children are not well-served by requiring them to testify.
Father also argued that the District Court found that he “pushed” the child. Smith opined that the statement that the child made to Mother that he was “slammed up against the wall” provided the necessary record support for the finding of pushing.
Splitting hairs is probably not the best strategy on appeal.
Jason and Cynthia Brown, husband and wife, are the founding shareholders in the Brown Law Offices, P.A., a northwest Twin Cities divorce and family law firm.