In re the Marriage of:

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0482

In re the Marriage of:

Laura Diane Hermer, petitioner,
Respondent,

vs.

Lawrence James Cisek, Jr.,
Appellant.

Filed March 13, 2017
Affirmed in part, reversed in part, and remanded
Rodenberg, Judge

Hennepin County District Court
File No. 27-FA-14-1364

Kay Nord Hunt, Lommen Abdo, P.A., Minneapolis, Minnesota (for respondent)

James J. Vedder, Moss & Barnett, Minneapolis, Minnesota (for appellant)

Considered and decided by Stauber, Pr esiding Judge; Rodenberg, Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Lawrence James Cisek, Jr., appeals from the district court’s award of
permanent spousal maintenan ce to respondent Laura Diane Hermer, its division of the
parties’ marital assets, and its determination that appellant’s child-support obligation to the
mother of appellant’s children born of a previous marriage is a nonmarital debt. We affirm

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the district court except insofar as it computed spousal maintenance based, in part, on the
child’s educational expenses. We reverse th e maintenance award and remand for further
proceedings.
FACTS
Appellant’s first marriage produced four children and ended in 1996. A Maryland
court then ordered appellant to pay child support for thes e children. Appellant and
respondent married in 1999. During his marria ge to respondent, appellant failed to make
full child-support payments for the children of his first ma rriage. In 2002, the Maryland
court computed child-support arrearages and ordered appellant to pay them. Appellant still
failed to make full child-support payments, a nd the child-support arrearage and an award
of attorney fees was determined by order of the Maryland court on December 17, 2014.
In May 2001, appellant and re spondent had their first and only joint child (Child).
While the parties lived together, Child attended a private school for which the parties paid
tuition. This dissolution action was commenced in Hennepin County in March 2014.
After trial, the district court ordered that appellant pay child support to respondent.
It also ordered appellant to pay respondent permanent spousal maintenance in the amount
of $3,375 per month. When it determined th e parties’ reasonable monthly expenses, the
district court included expenses for Child in both parents’ monthly budgets. It determined
appellant’s reasonable monthly expenses to be $12,356, incl uding $38 in expenses for
Child. It determined respo ndent’s monthly expenses to be $10,0 50, including a tuition
expense for Child of $2,100 per month (along with other expenses of Child).

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The district court divided th e parties’ assets and debt s, including their retirement
accounts. The parties disagreed on how the district court should account for the future tax
consequences of the property division, and specifically disagreed about the future tax
consequences that would affect the retirement accounts. The district court determined that
the future tax consequences affecting the pr esent value of the retirement accounts was
speculative, and it declined to discount the present value of the retirement accounts for
future tax consequences.
Finally, when dividing the parties’ debts, the district court found that appellant’s
child-support arrearages and obligations to his first wife were nonmarital debts. It allocated
no part of the responsibility for those debts to respondent.
This appeal followed.
D E C I S I O N
I. Spousal Maintenance
Appellant challenges the district court’s award of permanent spousal maintenance
to respondent on several bases, including that the district court improperly included Child’s
private-school tuition in respondent’s reas onable monthly expenses when it computed
maintenance.1 The parties agreed at trial that Child is flouris hing at her private school.
Both parents prefer that she continue to attend that school. Before the district court, the

1 Respondent argues that appellant forfeited his arguments regarding the inclusion of
Child’s non-tuition expenses in her budget by not raising the issue below. Appellant argues
that this challenge is not ne w. Regardless, and because of our decision reversing and
remanding the maintenance award, we need not resolve this issue. Our disposition of
appellant’s challenge to the inclusion of Ch ild’s private-school tuition in respondent’s
reasonable monthly expenses obviates the need to further revisit these other claimed errors.
Whether the district court reopens the record on remand is a matter within its discretion.

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parties agreed to divide Child’s private-school tuition in some fashion, despite appellant’s
expressed concern about whether they could afford the tuition. Respondent requested that
appellant’s share of Child’s tuition be made part of her reasonable and necessary monthly
expenses, and that Child’s tuitio n should then be her obligation to pay as it comes due.
Appellant proposed that the parties divide th e tuition in some fashion, but did not agree
that spousal maintenance was a proper enforcement vehicle for the tuition obligation. The
district court opted to include Child’s tuition in respondent’s reasonable monthly expenses
for maintenance purposes, ordered that re spondent pay Child’s tuition, and ordered
appellant to pay spousal maintenance accordingly. It ordered permanent maintenance.
Appellant argues that using permanent s pousal maintenance as the vehicle for
enforcement of his obligation to pay half of Child’s private-education expenses is
improper. He argues that those expenses, if they are to be considered at all, should properly
be part of child support. Minn. Stat. § 518 A.26, subd. 4 (2016) (defining basic child
support as support “for a child’s housing, food, clothing, transportation, and education
costs, and other expenses relating to the ch ild’s care”). He persuasively argues that,
because the district court awarded respondent permanent spousal maintenance, and because
the child will attain majority in two to four years,2 he will continue to be obligated to pay
permanent maintenance based in part on an expense that will surely end. This, he argues,
is unfair to him because he will have to m ove the district court for modification of

2 For child-support purposes, a child without physical or mental disabilities attains majority
when she turns 18 years old and no longer attends secondary school or when she turns 20
years old regardless of whether she still attends secondary school. Minn. Stat. § 518A.26,
subd. 5 (2016). The parties’ child will turn 18 in 2019.

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maintenance to eliminate the private-educa tion expense from respon dent’s maintenance
award after Child graduates high school. Minn. Stat. § 518.552, subd. 4 (2016). A child
support obligation, by contrast, expires by operation of law. Minn. Stat. § 518A.39, subd.
5 (2016); see also Beltz v. Beltz , 466 N.W.2d 765, 768 (Minn. App. 1991) (“Minn. Stat.
§ 518.64, subd. 4, automatically requires a reduction in child support upon emancipation
unless the statutory conditions allowing the support to continue are met.”), review denied
(Minn. Apr. 29, May 23, 1991).
Appellant’s challenge raises an issue of law that we consider de novo. Maiers v.
Maiers, 775 N.W.2d 666, 668 (Minn. App. 2009). We need not resolve appellant’s policy-
based challenge to the district court’s mainte nance award, because th e plain language of
Minn. Stat. § 518A.43, subd. 1 (2016), requi res the district court to consider the
“extraordinary . . . educational needs of the child to be supported” when establishing child
support. Moreover, the plain language of Minn. Stat. § 518.552, subd. 1(a) (2016), requires
that, in making a maintenance award, the district court must consider the “reasonable needs
of the spouse,” and omits any reference to c onsiderations of the educational needs of a
minor child. On this record, the district court should not have included Child’s educational
expenses in computing respondent’s r easonable monthly expenses for spousal-
maintenance purposes.3

3 Respondent argues that there is a beneficial tax effect to appellant by allowing him to pay
his share of Child’s private-school tuition by way of spousal maintenance. See 26 U.S.C.
§ 215(a) (2012) (providing that an individual may deduct from his or her gross income “an
amount equal to the alimony or separate ma intenance payments paid during such
individual’s taxable year”). This tax-effe ct question was discusse d before and by the
district court. But whether a legal error might have been tax beneficial to the party asserting
the error is not our proper concern. We are an error-correcting court. Sefkow v. Sefkow,

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We reverse the permanent spousal-maintenance award, and remand for the district
court to recalculate it. The district court may, on remand and in its discretion, reopen and
reconsider child support and other provisions of the judg ment and decree as it deems
appropriate.4
II. Tax effect of retirement assets
Appellant challenges the district court’ s decision not to consider future tax
implications when it valued and divided the par ties’ retirement assets. He argues that the
district court abused its discretion by deemi ng the future tax effects to be speculative.
Appellant argues that, because the parties disagreed at trial concerning only the degree or
percentage of the future tax consequences, and not on whether the retirement assets would
be taxed at all, the district court was required to discount for the future tax effect at some
level.
District courts have broad discretion when dividing ma rital property, and we will
not reverse absent a showing of cl ear abuse of that discretion. Maurer v. Maurer , 623

427 N.W.2d 203, 210 (Minn. 1988); see also Nelson v. Schlener , 859 N.W.2d 288, 294
(Minn. 2015) (quoting this aspect of Sefkow); Lake George Park, L.L.C. v. IBM Mid-Am.
Emps. Fed. Credit Union , 576 N.W.2d 463, 466 (Minn. Ap p. 1998) (stating that “[t]his
court, as an error correcting court, is without authority to change the law”), review denied
(Minn. June 17, 1998). It is not for us to overlook legal error for equitable reasons.
4 Our holding is limited to the facts of the case now before us. We express no opinion on
the propriety or effect of a stipulation by the parties that a child’s tuition should be treated
as an expense for maintenan ce purposes, nor do we consider whether we would reach a
different result if appellant’s maintenance obligation include d a step reduction, in an
amount equal to his share of Child’s tui tion, automatically effective upon Child’s
graduation. See Passolt v. Passolt , 804 N.W.2d 18, 25 (Minn. App. 2011) (stating that
“[district] courts have broad discretion in establishing maintenance plans, including the use
of step reductions” (alternation in original) (quoting Schreifels v. Schreifels, 450 N.W.2d
372, 374 (Minn. App. 1990)), review denied (Minn. Nov. 15, 2011).

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N.W.2d 604, 606 (Minn. 2001). A district c ourt is not required to consider future tax
consequences in valuing marital property when considering those consequences “would
force it to speculate.” Grigsby v. Grigsby, 648 N.W.2d 716, 725 (Minn. App. 2002), review
denied (Minn. Oct. 15, 2002). District cour ts may, however, consider future tax
consequences of a property division when there is “a reasonable and supportable basis for
making an informed judgment as to the probable [tax] liability.” Maurer, 623 N.W.2d at
608 (quotation omitted). For example, district courts may consider the tax consequences
of a property division when the sale of real estate awarded to one pa rty must, or is likely
to, occur within a short time. Aaron v. Aaron, 281 N.W.2d 150, 15 3 (Minn. 1979). The
supreme court has only required di strict courts to consider th e effect of taxes when “the
transaction creating the tax consequences is ‘required or is likely to occur.’” Curtis v.
Curtis, 887 N.W.2d 249, 256 (Minn. 2016) (quoting Aaron, 281 N.W.2d at 153).
The parties agree that, under current federal tax law, their retirement accounts would
result in tax liability on withdrawal. They al so agree that the current tax rates can be
ascertained. Their disagreement at trial was ab out such issues as the age at which each
would retire, the amount that each would continue to pay into accounts before retirement,
and the life expectancy of each of them. Appellant argued that he would not begin to
withdraw retirement assets for “five and a half years,” and that, if he works until the average
retirement age in his field, he would not retire for another 25 years. The situation in this
case, where the possible tax consequences are years—or even decades—in the future is
unlike the situation in Curtis, where the likely tax consequence was imminent and certain.
The future tax treatment of retirement-account withdrawals as much as a quarter century

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in the future is the very defi nition of “speculative.” The di strict court acted within its
discretion in declining to speculate on what the tax code will be decades into the future, or
how the parties’ future investments and date-of-retirement decisions might affect the values
and tax treatment of their individual retirement accounts.
III. Appellant’s obligation to nonjoint children
Finally, appellant argues that the district court erred by concluding that his child-
support obligation to his child ren from a previous marriage is his nonmarital obligation.
Appellant makes two arguments. First, he argues that these debts are marital debts because
they accrued after the parties were married. 5 Second, he argues that equity requires that
respondent be responsible for a portion of the debt because, during the marriage, she
benefitted from his nonpayment of the debt.
“All property acquired by either spouse subs equent to the marriage and before the
valuation date is presumed to be marital property regardless of whether title is held
individually or by the spouses . . . .” Mi nn. Stat. § 518.003, subd. 3b (2016). Property
acquired before the marriage is c onsidered nonmarital property. Id., subd. 3b(b). “In
dissolution actions, debts are apportioned as part of the property settlement and are treated
in the same manner as the division of assets.” Lynch v. Lynch, 411 N.W.2d 263, 266 (Minn.
App. 1987), review denied (Minn. Oct. 30, 1987). “We independently review the issue of

5 Although the parties and the district court at times referenced a judgment arising from
appellant’s child-support arrearages and attorney fees to his first wife, we are unable to
independently ascertain whether the obliga tions ordered by the Maryland court in
December 2014 have been reduced to judgment. Regardless, the obligation is a debt known
and recognized by the parties and whether it has been reduced to judgment does not change
our analysis.

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whether property is marital or nonmarital, giving deference to the district court’s findings
of fact.” Baker v. Baker, 753 N.W.2d 644, 649 (Minn. 2008).
Appellant’s obligation to support his non joint children arose before he married
respondent. The fact that the amount of the original lia bility was determined while
appellant was married to respondent does not change the nonmarital character of the debt
that originated before this marriage. See Rooney v. Rooney, 782 N.W.2d 572, 576 (Minn.
App. 2010) (holding that a payor of funds of a child-support obligation incurs liability for
not withholding the obligor’s funds before the obligation is reduced to judgment for
nonpayment).
Appellant’s second argument concerning the obligation to appellant’s nonjoint
children is not supported by the case law. He relies on our decision in Chamberlain v.
Chamberlain, holding that the district court did not abuse its discretion by apportioning
husband’s personal tax debt between the sp ouses. 615 N.W.2d 405, 414 (Minn. App.
2000), review denied (Minn. Oct. 25, 2000). In Chamberlain, the husband’s tax debt arose
during the marriage, and be nefitted both parties. Id. Chamberlain says nothing about
premarital child-support obligations. Appell ant provides no published authority for the
notion that a district court errs by consider ing a premarital child-support obligation as a
nonmarital debt of the party obligated to support the nonjoint children.
We see no error in the district court’ s characterization of this obligation as
appellant’s nonmarital debt.
Affirmed in part, reversed in part, and remanded.