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This opinion will be unpublished and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
A16-1476

In re the Marriage of:

Glenn Alan LaTour, petitioner,
Appellant,

vs.

Nancy Jean LaTour,
Respondent.

Filed September 11, 2017
Affirmed
Schellhas, Judge

St. Louis County District Court
File No. 69DU-FA-15-295

Bill L. Thompson, Law Office of Bill L. Thompson, Duluth, Minnesota (for appellant)

John H. Bray, Maki & Overom, Ltd., Duluth, Minnesota (for respondent)

Considered and decided by Ross, Presidin g Judge; Schellhas, Judge; and Connolly,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges a marriage-dissolution judgment, arguing that the district court
inequitably divided the parties’ assets and debts. We affirm.

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FACTS
Appellant Glen LaTour (husband) and respondent Nancy LaTour (wife) married in
2004 and separated in 2015. Husband subse quently petitioned for marriage dissolution.
The parties resolved a numbe r of dissolution issues thro ugh a mediated settlement
agreement and tried the issues of property valuation and allo cation, debt allocation, and
taxes. Husband appeals from the district court’s dissolution judgment.
D E C I S I O N
The district court found husband’s monthly gross employment income to be $5,889
and his reasonable monthly living expenses to be $2,045, exclusive of his debt service. The
court found that wife’s gross monthly employment income was $2,892 and her reasonable
monthly living expenses to be $3,130, exclusive of debt service.
Debt allocation
Husband states in his brief that “one of the biggest issues of contention [at trial] was
debt allocation.” The court allocated to husband the following secured and unsecured debts:
Duluth Teachers Cred it Union Loan for the 2008 Me rcury Milan/2000 Ford F-350
($5,913); Duluth Teachers Credit Union Loan for the 2000 Ford F-350/Fischer XtremeV
Snowplow ($4,338); Duluth Te achers Credit Union Loan fo r the 2014 Polaris 570 ATV
and the 2014 Polaris 850X ATV ($16,164); Hermantown Federal Credit Union personal
loan, incurred by husband afte r parties’ separation ($4,682) ; Hermantown Federal Credit
Union American Express cred it card, incurred by husband after parties’ separation
($3,671); and Superior Choice Credit Union cr edit card ($2,033). The court allocated to

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wife the following secured and unsecured debts: Superior Choice Credit Union homestead
mortgage debt ($188,589); Sears credit card ($1,734); Lowe’s credit card ($1,150).
Husband argues that the district court abused its discretion by allocating the
Superior Choice credit-card debt of $2,033 to him. The court found that allocating the debt
to husband was “fair and equitable” because wi fe made payments on the debt during the
parties’ separation, both parties benefited fro m wife’s debt reduction, husband was in a
better financial position to repay the debt, and wife lacked the financial means to pay the
debt.
“The [district] court is accorded broad discretion in the division of debt; on review,
the [district] court’s decision must be affirmed if it has an acceptab le basis in fact and
principle, even though this court may have taken a different approach.” Bliss v. Bliss, 493
N.W.2d 583, 587 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). Our review of
the record and the district court’s careful and thorough findings of fact and conclusions of
law leads us to conclude that the district court did not abuse its discretion in allocating the
parties’ debt among them.
Wife’s nonmarital interest in homestead
Husband argues that the district court e rroneously calculated the value of wife’s
nonmarital interest in the homestead. Proper ty acquired before marriage is nonmarital
property. See Minn. Stat. § 518.003, subd. 3b (2016) (stating that, with certain exceptions,
marital property includes all property acquired by either spouse during their marriage and
before the valuation date).

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“Whether property is marital or nonmar ital is a question of law, but a reviewing
court must defer to the [district] court’s underlying findings of fact. . . . [I]f [the reviewing
court is] left with the definite and firm convi ction that a mistake has been made, [it] may
find the [district] 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); see Baker v. Baker, 753 N.W.2d 644, 649 (Minn. 2008)
(stating that “[appellate courts] independently review the issue of whether property is
marital or nonmarital, giving deference to the di strict court’s findings of fact”). A district
court’s valuation of an item of property is a finding of fact, and it will not be set aside
unless it is clearly erroneous on the record as a whole. Maurer v. Maurer, 623 N.W.2d 604,
606 (Minn. 2001). To maintain its nonmarital character, nonmarital property must “either
be kept separate from marital property or, if commingled with marital property, be readily
traceable.” Olsen, 562 N.W.2d at 800.
The district court found that the total value of the land on which the parties built
their home was wife’s nonmarital property because wife’s parents conveyed the land solely
to her prior to the parties’ marriage and free of any encumbran ces. After the parties
married, they built a house on the land by obtaining a loan secured by the home and land.
At the time of the parties’ dissolution, the mo rtgage had a balance of $188,589.10. At the
time of the parties’ separation, the apprai sed value of the land was $55,000 and the
appraised value of the house and land combined was $225,000. The court found the value
of wife’s nonmarital interest in the homestead to be equal to the va lue of the land alone,

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$55,000, and found the apprai sed value of the marital porti on of the homestead to be
$170,000, calculated as the total value minus the land value ($225,000-$55,000).
The district court then concluded that beca use of the mortgage balance, the parties
had no marital equity in the homestead to divide. Although th e court acknowledged
husband’s claim to the homestead on the basis that the home “was constructed and paid
for, at least in part, with marital funds and labor,” the court found that the homestead had
a negative equity of $18,589. We conclude that the district court did not err in its analysis.
Although husband did not make this argum ent to the district court, he argues on
appeal that the district court should have employed the Schmitz formula articulated in
Schmitz v. Schmitz , 309 N.W.2d 748 (Minn. 1981), to calculate the value of wife’s
nonmarital interest. The Schmitz formula is used “to determ ine marital and nonmarital
interests in property acquired before the marriage.” Antone v. Antone, 645 N.W.2d 96, 102
(Minn. 2002) (citations omitted). In Antone, the supreme court explained the Schmitz
formula as follows:
For property acquired before the marriage, the formula uses the
time of the marriage instead of the time of the purchase. Thus,
the present value of a nonmarital interest in property acquired
before the marriage is the proportion the net equity at the time
of the marriage bore to the value of the property at the time of
the marriage multiplied by the value of the property at the time
of separation. The remainder of equity increase is characterized
as marital property.

Id. The court also explained, “Application of the Schmitz formula to property acquired
before the marriage is consiste nt with section 518.54, subd . 5” because “[t]he formula
recognizes that the net equity at the time of the marriage is nonmarital property because it

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was acquired before the marriage.” Id. (quotation omitted). Under the Schmitz formula,
“the increase in value of the property acqui red before the marriage . . . is nonmarital
property. Id. at 103.
Just as husband did not demonstrate to th e district court the effect of employing the
Schmitz formula to the facts in this case, he has not made such a demonstration to this court.
We will not employ the Schmitz formula for the first time on appeal, and we conclude that
husband has forfeited the argument by failin g to make it in the district court. See Toth v.
Arason, 722 N.W.2d 437, 443 (Minn. 2006) (stating that “a reviewing court generally may
consider only those issues th at the record shows were pres ented to and considered by the
[district] court” (quotation omitted)).
Division of marital assets
“District courts have broad discretion over the division of marital property and
appellate courts will not alter a district cour t’s property division absent a clear abuse of
discretion or an erroneous application of the law.” Sirek v. Sirek , 693 N.W.2d 896, 898
(Minn. App. 2005). “Appellate courts ‘will affirm the [district] court’s division of property
if it had an acceptable basis in fact and prin ciple even though [the appellate court] might
have taken a different approach.’” Id. (quoting Antone, 645 N.W.2d at 100). “We defer to
the [district] court’s findings of fact and will not set them aside unless they are clearly
erroneous.” Id. A district court abuses its discretion in dividing property if it resolves the
matter in a manner “that is against logic and the facts on record.” Rutten v. Rutten , 347
N.W.2d 47, 50 (Minn. 1984).

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Husband argues that the district court abused its discretion by inequitably dividing
the marital estate ther eby entitling him to a reversal of th e property division or at least a
remand for further findings. “The district court shall make a just and equitable division of
the marital property of the pa rties without regard to mar ital misconduct, after making
findings regarding the di vision of the property.” Sirek, 693 N.W.2d at 899 (quotations
omitted). “When dividing marita l property, the district cour t may consider many factors,
such as the length of the marriage, sources of income, and the contribution of each party in
the preservation of the marital property.” Id. “[W]hile the district court must make a just
and equitable division of the marital property, an equitable division of marital property is
not necessarily an equal division.” Id. at 900 (quotations omitted).
Husband’s arguments are based on the faulty premise that a district court must
divide marital property equally in order for the division to be equitable. We conclude that
husband’s inequitable-property-division argu ments fail because they are based upon the
erroneous assumption that an equitable division must be an equal division.
Division of pension and retirement accounts
The dissolution judgment awarded wife two retirement accounts with an aggregate
marital value of $25,733.25, and awarded husband two retir ement accounts: a Roth IRA
with a value of $11,488.72, and his interest in the Western Lake Superior Piping Industry
Pension Fund. But husband did not provide th e district court with any evidence of the
marital value of his pension interest, and the court listed its value as “UNKNOWN.”
Apparently, based on this di vision of retirement assets, hus band asserts that the court
abused its discretion in divi ding the retirement assets b ecause the court awarded “more

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than double the value of the re tirement account assets to [w ife].” Pension division is
generally discretionary with the district court. Faus v. Faus, 319 N.W.2d 408, 413 (Minn.
1982); Johnson v. Johnson, 627 N.W.2d 359, 362 (Minn. App. 2001), review denied (Minn.
Aug. 15, 2001). We reject husband’s argument for three reasons.
First, the district court noted that husband “testified and submitted evidence at trial
that while he has a pension fund he has not yet ‘vested’ and will not vest for approximately
two more years.” As a result, the court conc luded that it could not assign a value to
husband’s pension-fund interest. Division of unvested, unmetered pensions is addressed in
Janssen v. Janssen , 331 N.W.2d 752 (Minn. 1983), and its progeny. Because husband
makes no Janssen argument on appeal, and apparently made no Janssen-based argument
to the district court, the point is not proper ly before us, and we decline to address it. See
Broehm v. Mayo Clinic Rochester , 690 N.W.2d 721, 728 (Minn. 2005) (stating that,
generally, appellate courts “decline to review” questions “neither timely presented before
the district court nor adequately briefed on appeal”).
Second, even if the questi on was properly before this court, husband’s argument
that the court inequitably divided the retirement assets seems to assu me that the value of
his pension interest is zero. But the record contains no ev idence that the value of the
pension interest is in fact ze ro, husband provides no legal au thority requiring the district
court to assume that his pension interest ha s zero value, and we are aware of no such
authority.
Third, even if the pension awarded to husband turns out to have zero value, husband
has not shown, or attempted to show, that the resulting property division would necessarily

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be inequitable. As noted above, a property division need not be equal to be equitable. Sirek,
693 N.W.2d at 900.
Income Taxes
Husband also argues that the district cour t inequitably divided the marital estate
because wife “filed individual taxes for 201 4 and 2015” so that she had extra cash and
“pocketed these marital monies, and never shar ed them with” husband. The court denied
husband’s request that wife be ordered to join with husband to amend the parties’ 2014 tax
returns on the basis that doing so was not fair or equitable “in light of the lack of financial
support from [husband] to [wife] for a period of ten months and [wife]’s good faith efforts
to engage with [husband] regarding the issue.” The court found that one of the reasons that
wife did not file a joint return with husband is because husband refused to cooperate with
wife in doing so. The court conc luded that because husband pa id nothing to wife for the
support of their minor child for almost a ye ar, wife should receive the 2014 tax return
proceeds. Husband’s argument that the court’s decision was unfair and inequitable is
without merit.
As to the year 2015, the district court or dered the parties to f ile joint returns and
share equally in any refund or deficiency if they had not already filed their returns for 2015.
The court noted that it did not have information about whether the parties had already filed
their returns individually. Husband now claims that wife pocketed the refund from the 2015
return without sharing any of it with him. But insufficiency in the record before us on this
issue prevents our review.
Affirmed.