In re the Marriage of: Patricia Rose Whipps, petitioner, Respondent,

This opinion will be unpublished and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
A16-1915

In re the Marriage of: Patricia Rose Whipps, petitioner,
Respondent,

vs.

Richard Cordell Whipps,
Appellant.

Filed November 20, 2017
Reversed and remanded
Florey, Judge

Anoka County District Court
File No. 02-FA-14-1047

Kurt Robinson, Kurt Robinson, P.A., Blaine, Minnesota (for respondent)

Melanie P. Persellin, Jensen, Sondrall, Persellin & Woods, P.A., Brooklyn Park, Minnesota
(for appellant)

Considered and decided by Florey, Presiding Judg e; Schellhas, Judge; and
Kalitowski, Judge.
*
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant-husband Richard Whipps challeng es the district court’s third amended
property-division judgment resulting from th e dissolution of his marriage to respondent-

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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wife Patricia Whipps. Husband argues that the district court abused its discretion in
concluding that 80% of an individual re tirement account (IRA) was wife’s nonmarital
property.1 We reverse and remand.
FACTS
Husband and wife married in 1987. In 2014, wife initiated dissolution proceedings.
A trial was held in 2015 regarding the division of certain assets; wife claimed a nonmarital
interest in an IRA two weeks be fore the trial. Following the trial and before the district
court issued a decision, the district court judge was removed from the bench. The case was
reassigned to a different district court judge, who adopted two pretrial orders from the first
trial which made no reference to a contested nonmarital interest in the IRA. The case
proceeded to a second trial.2
At the trial, the parties disputed whether the IRA had a nonmarital property
component, and the extent of that component. Wife testif ied on cross-examination that
80% of the IRA was nonmarital property, indica ting that “there were four years when it
was marital.” Husband testifie d that he wanted the IRA to be divided equally. But on
cross-examination, he admitted that wife “should get most of it,” indicating that wife had
acquired part of the IRA prior to the marriage. He testified that he had not been provided
with information about the value of the IRA at the date of th e marriage or when wife left
her employment and did not know the amount of interest earned on the IRA. Wife testified

1 Wife has not filed a brief in this appeal; we therefore consider the merits of the case
pursuant to Minn. R. Civ. App. P. 142.03.
2 The parties’ marriage was dissolved pursuant to a stipulation on December 30, 2015, prior
to the second trial concerning the disputed property.
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that she did not have documentation showing the value of the IRA at the time of marriage
or documentation to prove the IRA’s existence prior to the marriage date. The district court
inquired as to why information had not been gathered regarding the value of the IRA at the
time that wife left her employment. The dist rict court then stated that wife had not
presented testimony to clarify her nonmarital interest in the IRA and therefore the district
court had been inclined to consider the IRA marital property until husband acknowledged
that he thought that wife earned part of the IRA prior to the marriage.
The district court filed an order for judg ment and entered a judgement and decree
on July 1, 2016. The distri ct court concluded that the IRA included both marital and
nonmarital property. In support of its conclu sion, the district court found that husband
acknowledged that wife “should get most of it” and believed that 80% of the account was
wife’s nonmarital property. The district court found that wife did not provide any
information to aid the district court in dividing the nonmarital portion of the IRA from the
marital portion. Resting on husband’s testimony, the district court concluded that 80% of
the asset was nonmarital and 20% of the asset was marital.
Husband moved to amend the finding of fact , arguing that the district court erred
when it based its finding on husband’s testimony. Wife moved for amended findings and
filed an affidavit claiming that she testified at trial that she contributed to the IRA from
1971 until 1991. Th e district court amended its findings of fact and conclusions of law,
but did not substantively modi fy its findings concerning the IRA. Judgment was entered
accordingly.
Husband appeals.
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D E C I S I O N
A district court has broad discretion over the division of property in dissolution
cases, and we will not reverse a district court’s division of property absent a clear abuse of
discretion or an erroneous application of the law. Rutten v. Rutten , 347 N.W.2d 47, 50
(Minn. 1984); Sirek v. Sirek , 693 N.W.2d 896, 898 (Minn. App. 2005). We defer to the
district court’s credibility determinations and will defer to the distri ct court’s findings of
fact unless they are clearly erroneous. Kerr v. Kerr, 770 N.W.2d 567, 569-70 (Minn. App.
2009). We will affirm a district court’s proper ty division “if it had an acceptable basis in
fact and principle even though we might have taken a different approach.” Antone v.
Antone, 645 N.W.2d 96, 100 (Minn. 2002). But whether property is marital or nonmarital
is a question of law that we review de novo. Id.; see also 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 district court’s findings
of fact”).
Property acquired by either spouse before marriage is nonmarital property. Minn.
Stat. § 518.003, subd. 3b (2016 ). Likewise, property which is “acquired in exchange for
or is the increase in value of” nonmarital property is also nonmarital property. Id.; Baker,
753 N.W.2d at 649. On th e other hand, property acquired by either party during the
marriage is presumed to be marital property. Minn. Stat. § 518.003, subd. 3b. The
presumption that property acquired during the marriage is marital property may be
overcome by a showing, by a preponderance of the evidence, that the property is nonmarital
in nature. Id.; Kerr, 770 N.W.2d at 569.
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Husband first argues that the evidence in the record does not support the district
court’s conclusion that a portion of the IR A was acquired before the marriage. We
disagree. “A nonmarital interest in property may be established on the basis of credible
testimony.” Kerr, 770 N.W.2d at 570. Husband testified at trial that he believed a portion
of the IRA was acquired before marriage. The district court found husband’s testimony to
be credible. We defer to the distri ct court’s credibility determinations. Id. The evidence
was sufficient for the district court to conclude that the IRA had a nonmarital component.
Husband next argues that, even if a portion of the IRA was nonmarital property, the
district court “erred when it characterized 80% of the total value [of the] IRA as wife’s
nonmarital property.”3 He argues that wife provided no evidence with which to trace a
nonmarital portion within the tota l value of the IRA, and theref ore, the asset should have
been considered marital property in its entirety.
If nonmarital property has been commingled with marital property, the proponent
of the nonmarital interest mu st show by a preponderance of the evidence that the

3 Before reaching the merits of the next i ssue, we address the li mitations placed on our
review of the record because of the limited trial transcripts provided to the court on appeal.
Husband ordered only a partial tr ial transcript for our review. He did not provide wife’s
direct examination or a full transcript of his testimony on cross-examination. In any appeal,
the appellant is responsible for ordering a nd submitting any transcripts that are necessary
for appellate review. Minn. R. Civ. App. P. 110.02, subd. 1. If the appellant omits portions
of the transcript that the respondent deems necessary, the respondent shall order the
missing portions of the transcript, or serve and file a motion in the district court requesting
that the appellant be made to do so. Id. Wife did not order additional transcripts or request
that the district court order hu sband to produce the remainder of the trial transcripts. At
oral argument, counsel for husband asserted that she provided all of the trial transcripts in
which the IRA was the subject of testimony. We are unable to reconcile this assertion with
the district court’s references to what appears to be wife’s direct testimony about the IRA.
6
nonmarital interest is readily trac eable to the nonmarital source. Olsen v. Olsen , 562
N.W.2d 797, 800 (Minn. 1997). Strict traci ng is not required, and testimony credited by
the district court can be sufficient to trace a nonmarital interest. Doering v. Doering, 385
N.W.2d 387, 390-91 (Minn. App. 1986); see also Risk ex rel. Miller v. Stark, 787 N.W.2d
690, 697 (Minn. App. 2010) (“[T]racing property to its nonmarital source does not require
intricate detail.”), review denied (Minn. Nov. 16, 2010). But “[t]he [district] court’s
exercise of its discretion in valuing and distributing an asset should be supported by either
clear documentary or testimonial evidence or by comprehensive findings issued by the
court.” Nash v. Nash, 388 N.W.2d 777, 780 (Minn. App. 1986) (quotation omitted), review
denied (Minn. Aug. 20, 1986). “Whether a nonmar ital interest has been traced is . . . a
question of fact.” Kerr, 770 N.W.2d at 571.
The record before us does not indicate the portion of the IRA that was nonmarital.
The district court found as much, indicating “wife did not provide any information to help
this court divide the nonmarital portion of this asset from the marital portion.” Rather, the
district court indicated that it was relying on testimony that “husband believes 80% . . . of
this account is wife’s nonmarital property” to divide the nonmarital portion from the
marital portion. Appellant argues that wife, not husband, testified that she had an 80%
nonmarital interest in the IRA. The record indicates that wife testified that 80% of the IRA
was nonmarital, but the district court, in its findings, did not rely on wife’s testimony. The
record provided to this court does not include testimony in which husband concedes that
80% of the IRA was nonmarital property. While acknowledging that wife “should get most
of it,” husband also testified that he wanted the IRA treated as marital property because
7
wife provided no information from which to deduce the value of the IRA at the time of the
marriage. Based on the record before us, the district court clearly erred in finding that
husband conceded that 80% of the IRA was nonmarital property.
Wife had the burden of tracing her nonmarital interest within the IRA. The district
court found that wife failed to do so. While the district court could rely on the credible
testimony of husband to trace the nonmarital asset, the district court erroneously concluded
that husband conceded an 80% nonmarital intere st in the IRA in favor of wife. Because
the district court clearly erred in its finding, and because the district court indicated there
is no other evidence upon which to trace a nonm arital interest in the IRA, we reverse.
Because wife did not meet her burden of establishing the nonmarital interest in the IRA, it
should be treated as marital property and divided accordingl y. On remand, the district
court shall divide the IRA in accordance with Minn. Stat. § 518.58, subd. 1 (2016)
(requiring the district court to “make a just and equitable division of the marital property”).
Reversed and remanded.