In re the Marriage of: Brent Lee Florine, petitioner, Appellant,

This opinion will be unpublished and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
A16-1519

In re the Marriage of:
Brent Lee Florine, petitioner,
Appellant,

vs.

Lauren Marie Florine,
Respondent.

Filed October 23, 2017
Affirmed in part, reversed in part, and remanded
Peterson, Judge

Hennepin County District Court
File No. 27-FA-14-6543

Susan A. Daudelin, Ben M. Henschel, Henschel Moberg Goff, P.A., Minneapolis,
Minnesota (for appellant)

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

Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this marital-dissolution action, appellant -husband challenges the district court’s
property-division, maintenance, and security decisions. By notice of related appeal,
respondent wife argues that the district court abused its discretion by failing to take taxes

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into account when setting her maintenance award and by ordering her to pay all of the
homestead costs pending sale of the homestead . We affirm in part , reverse in part , and
remand.
FACTS
Appellant-husband Brent Lee Florine and respondent -wife Lauren Marie Florine
married in 1994. Husband began dissolution proceedings in September 2014. The parties
have two minor children; although custody and support were issues in the dissolution trial,
the parties have not challenged the district court’s judgment on those matters in this appeal.
Husband had income from his employment as an oral and maxillofacial surgeon
averaging approximately $800,000 per year and additional rental income averaging
$115,000 per year. Husband claimed living expenses of $12,136 per month, assuming that
he was not in the homestead, and expenses for the children of $8,887 per month. The
district court found that this was a reasonable budget.
Wife had been self-employed as an insurance broker during the entire marriage. Her
average income was $168,900 per year. She claimed a monthly budget of $63,181 , based
on the parties’ standard of living during the marriage, and requested monthly spousal
maintenance of $29,080, but the district court rejected this amount as unreasonable. After
reviewing the factors set forth in Minn. Stat. § 518.552 (2016) for determining the amount
and duration of maintenance, the district court found that a reasonable monthly budget for
wife would be $25,000 and that wife’s $14,075 average monthly earned income and $2,500
average monthly interest income would leave wife with an average monthly shortfall of
$8,425. The district court then factored in wife’s likely annual tax obligation and found

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that a $15,000 monthly spousal-maintenance award was appropriate and reasonable to meet
wife’s monthly shortfall.
The parties own a homestead worth more than $3 million and subject to a $428,699
mortgage. Wife was permitted to remain in the house until it c an be sold, after which the
parties will divide the net proceeds. The judgment an d decree was originally silent about
who is responsible for the homestead costs pending sale. These costs were approximately
$15,000 per month , which included $6,334 for the mortgage, approximately $5,222 for
real-estate taxes, and approximately $592 for homeowner’s insurance. Husband had paid
the mortgage until the date of trial.
The parties agreed to use the services of a consensual special magistrate (CSM) to
resolve any differences regarding the sale of the homestead, and the district court ordered
the parties to use a CSM to resolve any disputes. In May 2016, the CSM entered an interim
order that addressed the costs of preparing the homestead for sale and maintaining the
homestead until it can be sold. The CSM ordered each party to be solely responsible for
some of the costs and to pay specified portion s of other costs ; some costs were divided
equally between the parties and others were assigned 30% to husband and 70% to wife, in
recognition of the fact that wife would be occupying the homestead until sale. The parties
moved to amend the findings in the dissolution judgment, and the district court denied
wife’s motion requesting an amendment to make the parties equally responsible for paying
insurance premiums and real-estate taxes pending sale of the homestead.
Husband alleged that wife had depleted marital assets by withdrawing $463,581
from an account between January 2011 and November 2014. Some of the money was used

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to pay attorneys with whom wife consulted before husband initiated the dissolution action.
The district court found that wife did not draw a salary from her company but instead took
periodic cash distributions and that the money she withdrew from the account was her
earnings. The district court concluded that husband had not sustained his burden of proving
depletion of marital assets.
At the time of the initial case management conference (ICMC) in November 2014,
wife had a money-market account worth $1,058,846; at the time of the dissolution trial in
October 2015, only $150,000 remained in the account. The district court found that wife
had received no support during the 13 months between service of the dissolution summons
and trial, and that she had used the money for household expenses, remodeling her business
office, attorney fees, and expert fees. The district court concluded that husband had not
sustained his burden of proving depletion.
The parties’ property includes a building that house s husband’s surgical practice
and another tenant. The district court accepted wife’s appraiser’s $1,150,000 valuation for
the building . Husband purchased th e building before the marriage and claimed a
nonmarital interest, but he was not able to prove that he paid off the mortgage be fore the
marriage or to establish an accurate value for the building on the date of the marriage. The
district court found that the value of husband’s nonmarital interest in the property is
$195,000.
Wife own s two insurance policies that insure husband ’s life. The district court
ordered husband to pay the premium for one of the policies, which has a $3,000,000 death
benefit. At trial, under cross -examination, wife stated that she would pay the premium.

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On appeal, husband argues that the district cour t erred by making him responsible for the
premium when wife said that she would pay it; he also argues that, in light of the children’s
ages, the death benefit is more than is needed to secure his child-support obligation.
By notice of related appeal, wife argues that the district court abused its discretion
by setting maintenance at $15,000 per month because the district court did not take into
account the taxes that wife will have to pay and the homestead costs for which s he was
made responsible. Wife moved for amended findings after the trial and offered an expert’s
affidavit on the tax issue. The district court rejected the affidavit because it was not part
of the trial record.
D E C I S I O N
I.
A district court’s mar ital-property division will only be reversed for an abuse of
discretion. Lee v. Lee , 775 N.W.2d 631, 637 (Minn. 2009). A district court abuses its
discretion if its decision “is against logic and the facts on record.” Rutten v. Rutten, 347
N.W.2d 47, 50 (Minn. 1984). Division of marital property is made after considering a
number of factors, including, among others, the length of the marriage and the parties’ ages
and health, occupations and income s, employability and skills, and assets. Minn. Stat.
§ 518.58, subd. 1 (2016). Because the parties to a dissolution action owe each other a
fiduciary duty, neither party may transfer, encumber, conceal, or dispose of marital assets
“except in the usual course of business or for the necessities of life” during the pendency
of a dissolution action or in contemplation of a dissolution action. Minn. Stat. § 518.5 8,
subd. 1a (2016). If the district court finds that a party has depleted assets, it “may impute

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the entire value of an asset and a fair return on the a sset to the party who transferred,
encumbered, concealed, or disposed of it.” Id. The party asserting depletion has the burden
of proving it. Id.
The district court concluded that husband failed to sustain his burden of proving that
wife depleted marital assets by taking $463,581 in cash withdrawals between January 2011
and November 2014 when the ICMC was held. Husband argued that in addition to this
sum, wife secreted $250,000 by withdrawing it from one account and depositing it in
another. The district court found that husband was aware of this transfer because he listed
interest earned on the $250,000 in the later account on the parties’ 201 3 tax return. The
district court also found that husband paid the parties’ bills during the marriage, including
credit-card charges totaling $115,542 that wife made at Nordstrom department store, and
he was thus aware of those expenditures. In 2012 and 2013, wife paid $16,197 in attorney
fees for two consultations with dissolution attorneys but decided both ti mes not to initiate
dissolution proceedings. Finally, the district court found that wife “took no salary or
regular draw from her company . . . [and] [i]nstead merely took her compensation
periodically/sporadically in cash and spent it as she wanted.” The district court stated that
wife
cannot be assessed for spending her own earnings, especially
when the parties never went into debt. All expenses (except
the mortgage) were paid off in full monthly. The fact that the
parties had different views on spen ding and did not
communicate freely or effectively is not the same as depletion.

The district court’s findings are supported by the record and are not clearly erroneous.

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Husband also argues that wife depleted a money-market account held in her name,
which had a balance of $1,058,846 on the date of the ICMC and a $150,000 balance at the
time of trial. Wife used these funds after her motion for temporary relief was denied. The
district court found that, although husband paid the homestead costs and the children’s
tuition during this time, he did not pay other expenses, including amounts for credit-card
bills, nannies, attorney fees, housecleaning, counselors, experts, vacations, and remodeling
costs. The district court found that these expenses were “in the nature of ordinary and
necessary expenses” and declined to conclude that wife had depleted marital assets. See
Minn. Stat. § 518.58, subd. 1a (stating that depletion does not occur when marital assets
are used “in the usual course of business or for the necessities of life”).
The district court has discretion to determine whether a party has depleted marital
assets, and the party claiming depletion has the burden of proof. The district court’s
findings are supported by record evidence and are not clearly erroneous. Although husband
characterizes wife’s use of the funds differently than the district court , he has not
demonstrated that the district court’s decision is against logic and the facts on record.
II.
Husband argues that, when dividing the marital property, the district court erred by
failing to attribute to him the increase in the value of his nonmarital interest in his
commercial property. The district court’s determination of whether property is marital or
nonmarital in nature is a question of law that we review de novo, and the district court’s
findings of fact are reviewed for clear error. Antone v. Antone, 645 N.W.2d 96, 100 (Minn.
2002). The party claiming a nonmarital interest in property has the burden of provi ng the

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nonmarital nature of the property by a preponderance of evidence. Kerr v. Kerr , 770
N.W.2d 567, 569 (Minn. App. 2009). “A nonmarital interest in property may be
established on the basis of credible testimony.” Id. at 570. This court defers to the district
court’s credibility determinations. Id.
“Nonmarital property” includes property that was acquired before the marriage.
Minn. Stat. § 518.003, subd. 3b (2016). “Increases in the value of nonmarital property
remain nonmarital if shown to be a ttributable solely to market forces or conditions, such
as simple appreciation in value of an asset.” Kerr, 770 N.W.2d at 570 (quotation omitted).
The district court’s decision reflects a failure of proof: husband had the burden of
proving the nonmarital nature of the property and that an increase in value w as solely
attributable to market forces. The district court accepted the valuation of wife’s expert as
more credible than the valuation of husband’s expert and found that the value at the time
of the ICMC was $1.15 million. The district court found that husband purchased the
building for $305,000 before the marriage by making a down payment of $55,000 and
financing the balance with a $250,000 mortgage and concluded that husband had a
nonmarital interest of $195,000 , based on an assumption that the mortgage balance was
$110,000 on the date of marriage . Husband claimed that he had paid off the mortgage
before the marriage, but he was unable to produce any proof , and the parties were unable
to establish the value of the property on the date of marriage. The district court rejected as
“speculative” husband’s expert’s conclusion that the property was worth between $372,000
and $390,700 on the date of marriage, because the conclusion was based on properties that
the district court determined were not comparable. Husband was unable to locate his 1994

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tax return to show the mortgage balance and instead provided his tax returns for 1991
through 1993 . The Dakota County recorder’s office had no record of a mortg age
satisfaction. The district court’s determination that husband had a $195,000 nonmarital
interest is supported by the only concrete evidence that husband offered: the purchase price
less the $55,000 down payment and some evidence that there was a mortgage balance of
$110,000 on the date of marriage. The district court’s findings are not clearly erroneous in
light of the limited evidence introduced at trial.
III.
Husband argues that the district court abused its discretion by ordering him to pay
the premium on a $3 million life-insurance policy owned by wife that is intended to secure
payment of child support and maintenance. A court may require an obligor to provide
sufficient security to ensure payment of child support or spousal maintenance. Minn. Stat.
§ 518A.71 (2016). We review the district court’s decision to impose a security requirement
for an abuse of discretion. Hunley v. Hunley , 757 N.W.2d 898, 900 (Minn. App. 2008)
(quotation omitted). When requiring security, a court may consider such factors as the
obligee’s age, education, work experience, employment prospects, and any other relevant
circumstance. Kampf v. Kampf, 732 N.W.2d 630, 635 (Minn. App. 2007), review denied
(Minn. Aug. 21, 2007).
The district court did not provide reasoning for why it ordered husband to maintain
the insurance policy and make the premium payment. In the dissolution judgment, husband
was ordered to pay approximately $8,700 per year in child support and $180,000 per year
in spousal maintenance. He al so pays $8,887 per month in child -related expenses, which

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presumably includes the children’s private-school tuition, tutoring, musical instrument, and
extracurricular expenses. These obligations total almost $300,000 per year for the next
five years, and the spousal-maintenance obligation may continue after that. Wife is now
only 55 years old. The life-insurance policy will secure husband’s maintenance and
support obligations, and the district court did not abuse its discretion by requiring husband
to maintain the policy.
IV.
The district court awarded wife $15,000 per month in permanent spousal
maintenance. Husband argues that wife failed to prove that she had a need for permanent
maintenance. By notice of related appeal, wife argues that the district court abused its
discretion by awarding her only $15,000 per month because the court failed to take into
account her tax liability and her sole responsibility for the homestead expenses.
We review the district court’s maintenance decision for a clear a buse of discretion.
Curtis v. Curtis, 887 N.W.2d 249, 252 (Minn. 2016). A clear abuse of discretion occurs
when the district court resolves the matter in a manner “that is against logic and the facts
on record.” Id. (quotation omitted). A district cour t must consider the standard of living
enjoyed by the parties during the marriage when making a maintenance award. Melius v.
Melius, 765 N.W.2d 411, 416 (Minn. App. 2009).
The district court found that wife’s claimed budget was “patently implausible” and
rejected wife’s request for $29,080 per month in maintenance, but nevertheless considered
the parties’ lifestyle and noted that “[t]he parties have enjoyed a very high standard of
living throughout the marriage while simultaneously building a significant marital estate

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without accruing any significant debt.” The district court conducted a thorough analysis
of the factors listed in Minn. Stat. § 518.552, subd. 2, including the parties’ needs and
abilities to pay, the standard of living, the duration of the marriage, wife’s foregone
earnings to accommodate the children’s needs, the parties’ ages and health, and their
contributions to the marital estate. The district court’s findings are supported by the record
and are not clearly erroneous. In addition, th e district court considered wife’s tax
obligation. The court explained in a footnote that wife’s income from earnings and
investments left her with “an average monthly shortfall of $8,425.” The district court
reasoned that with permanent maintenance of $ 15,000 per month , there was sufficient
income to meet her reasonable monthly expenses and her tax obligations. We conclude
that the district court considered all the relevant factors , its findings are not clearly
erroneous, and its maintenance award was not an abuse of discretion.
Wife also argues that the district court abused its discretion by ordering her to pay
all of the housing costs without “tak[ing] into account the resources of both parties in
determining [wife] alone should pay these expenses pe nding sale.” In her request for
amended findings, wife asked that the parties assume equal responsibility for pay ing the
homeowners’-insurance premium, approximately $592 per month, and the real -estate
taxes, approximately $5, 222 per month. The district court addressed this in its order
resolving the parties’ motions for amended findings , noting that wife “was afforded a
generous maintenance award to meet a reasonable budget” and that she “is benefitting from
temporary occupancy of the home.” The distric t court added that a CSM had been

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appointed to address disagreements about the sale of the house “out of the recognition that
the parties needed incentives and tools to not unduly delay the sale.”
We are sympathetic to the district court’s desire to encourage sale of the homestead,
but we are also troubled by the effect of requiring wife to pay the equivalent of her entire
maintenance award, or approximately 60% of her reasonable monthly budget, for housing
costs, particularly when the district court also acknowledged that wife would be responsible
for paying an undetermined amount for her taxes. The original judgment and decree did
not assign responsibility for the housing costs; husband pa id the mortgage until the trial,
and in May 2016, the CSM entered an interim order that required each of the parties to pay
some of the costs. The CSM ordered each of the parties to pay 50% of the real-estate taxes
for the first half of 2016, ordered wife to pay insurance premiums, and ordered husband to
continue making mortgage payments.
The district court assigned responsibility for the housing costs to wife after she
requested an amended finding “directing equal responsibility for payment of the
homestead’s insurance and real estate tax expenses pending sale.” Although w ife will
receive the benefit of occupying the homestead until it is sold, the full cost of maintaining
the homestead is a disproportionate share of her budget, and the real-estate taxes and
insurance premiums are costs that the parties will incur until the homestead is sold even if
wife does not occupy the homestead. The district court’s decision is “against logic and
the facts on record.” Curtis, 887 N.W.2d at 252. We therefore reverse the district court’s
decision regarding the payment of insu rance premiums and real -estate taxes and remand

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so that the district court can assign a portion of the insurance and real-estate-tax expenses
to husband.
Affirmed in part, reversed in part, and remanded.