In re the Marriage of: Terry Anne Boggs, 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This opinion will be unpublished and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
A17-0828

In re the Marriage of: Terry Anne Boggs, petitioner,
Appellant,

vs.

David Carl Boggs,
Respondent.

Filed May 7, 2018
Affirmed
Reyes, Judge

Wright County District Court
File No. 86-FA-14-1165

Kathryn A. Graves, Jaime Driggs, Anne R. Haaland, Henson & Efron, P.A., Minneapolis,
Minnesota (for appellant)

Amy D. Joyce, William R. Skolnick, Skolnick & Joyce, P.A., Minneapolis, Minnesota (for
respondent)

Considered and decided by Connolly, Presiding Judge; Reilly, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant-wife Terry Anne Boggs (wife) argues that the district court (1) abused its
discretion in determining the amount of her spousal-maintenance award; (2) abused its
discretion in declining to require responde nt-husband David Carl Boggs (husband) to
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obtain a life-insurance policy to secure his maintenance obligation; (3) erred as a matter of
law by vacating the original j udgment and staying it pending further order by the district
court; (4) abused its discretion by deciding that wife is not entitled to receive interest on
any unpaid balance on the cash portion of the property settlement until 180 days after entry
of the dissolution judgme nt; (5) abused its discretion by declining to award wife need-
based attorney fees; and (6) abused its di scretion by allowing husband to claim the
dependency exemption in his 20 17 tax return. On cross-appeal, husband argues that the
district court erred by placing the burden of proof on him to show that the increases in the
values of husband’s business and home were nonmarital propert y and by finding that
husband failed to meet his burden to prove that the business’s increase in value was marital
property. We affirm.
FACTS
Wife and husband were marri ed for 20 years fro m April 1994 to February 2014.
Wife is now 48 years old, and husband is 60 years old.
Prior to their marriage, husband owned a bus iness as well as a homestead in Wright
County, Minnesota, that later became the par ties’ marital home. At the time of the
marriage, the value of the ho me was $325,000. The value of the home increased to
$1,320,000 by the time of their dissolution. The value of the business increased from
$1,261,954 at the time of the marriage to the May 2014 value of $3,767,962.
In 2014, wife petitione d to dissolve the marriage. Following a court trial, the district
court filed its order for judg ment and decree on November 28, 2016. The order stayed
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entry of judgment for 30 days, but contrary to that order, the court administrator entered
judgment on the same date the order was filed.
In December 2016, each party moved for amended fi ndings of fact or a new trial.
On December 29, 2016, the district court no ted the prematurely entered judgment, sua
sponte vacated it, and stayed the entry of judgment pending further order from the district
court. After a February 6, 2017 hearing on the parties’ post-trial motions, the district court
filed a March 31, 2017 order de nying the parties’ motions in their entirety but amending
the requirement that the parties use a parentin g consultant. The district court filed an
amended order for judgment and decree, and stayed the entry of the judgment for another
30 days. The judgment was entered on May 12. Wife’s appeal and husband’s cross-appeal
follows.
D E C I S I O N
I. The district court did not abuse its di scretion in determining the amount of
spousal maintenance.

Wife argues that the district court a bused its discretion by awarding her an
inadequate amount of spousal maintenance. We are not persuaded.
A district court has “wide discretion” in setting a spousal-maintenance award, and
its determination is “final” absent an abuse of that discretion. Erlandson v. Erlandson, 318
N.W.2d 36, 38 (Minn. 1982). “Findings of fact concerning spousal maintenance must be
upheld unless they are clearly erroneous.” Gessner v. Gessner , 487 N.W.2d 921, 923
(Minn. App. 1992). A factual fi nding is clearly erroneous only if it is “against logic and
the facts on record,” Putz v. Putz , 645 N.W.2d 343, 347 (Minn. 2002), leaving the
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reviewing court with “the definite and firm conviction that a mistak e has been made.”
Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn. 2008) (quotation omitted).
In its detailed findings of fact and conclusi ons of law, the distri ct court found that
wife had the ability to earn $7,357 per month from her employment as an insurance-sales
representative and on the projected investment earnings from the investment assets and the
cash-equalizer payment awarded to her, which were payable to wife no later than 180 days
from entry of judgment. The district court found wife’s monthly living expenses were
$10,588, taking into account the upper-middl e-class standard of liv ing that the parties
enjoyed during the marriage. As a result, the district court awarded wife temporary spousal
maintenance of $5,000 per month for two ye ars starting December 1, 2016, followed by
permanent spousal maintenance of $3,231 per month thereafter.
Wife first argues that the district court a bused its discretion by overstating her ability
to support herself by failing to consider her obligation to pay income taxes. We disagree.
A district court has discreti on to consider tax consequenc es as part of its spousal-
maintenance-award calculations, provided that it has a “reasonable and supportable basis
for making an informed judgment as to [the] probable liability.” Kampf v. Kampf , 732
N.W.2d 630, 634-36 (Minn. A pp. 2007) (quotation omitted), review denied (Minn. Aug.
21, 2007). If considering tax consequences would be speculative, the district court should
not do so. Grigsby v. Grigsby, 648 N.W.2d 716, 726 (Minn. App. 2002) (citing Maurer v.
Maurer, 623 N.W.2d 604, 607-08 (Minn. 2001)).
Here, although wife pointed to documents and testimony from several witnesses that
predicted wife’s potential tax co nsequences, the district court, after being presented with
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these documents and testimony, stated that “no clear evidence of the specific tax
consequences was presented,” implicitly finding the documents and testimony not credible.
The district court has discretion in wei ghing evidence and assessing credibility.
Sinsabaugh v. Heinerscheid, 428 N.W.2d 476, 480 (Minn. A pp. 1988). And a review of
the record reveals that these findings are not clearly err oneous. We discern no abuse of
discretion by the district court.
Wife next argues that, because her cash -equalizer payment did not require payment
until mid-November, 2017, 180 days after the May 12, 2017 entry of judgment, the district
court abused its discretion by failing to consider wife’s reduced ability to earn investment
income on the payment during the approximate one year delay from the commencement of
spousal maintenance.
In her post-trial motion for amended fi ndings, wife proposed modifying the spousal-
maintenance award to reflect the potential nonpayment of the cash-equalizer payment for
180 days after entry of the judgment. Howe ver, wife did not support her proposal with
written briefing, and the district court refused to consider it. We n eed not consider this
argument as questions not properly presented to and considered by the district court are
waived. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
Finally, wife argues that the district cour t clearly erred by finding that wife will be
able to rebuild her book of business in two years and ther efore abused its discretion by
including a step reduction from $5,000 to $3,231 per month in wife’s maintenance award.
We are not persuaded.
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District courts have “broad discretion in establishing maintenance plans, including
the use of step reductions.” Schreifels v. Schreifels , 450 N.W.2d 372, 374 (Minn. App.
1990), review denied (Minn. Nov. 15, 2011). “Step re ductions may be appropriate to
provide employment incentives fo r a rehabilitating spouse.” Passolt v. Passolt , 804
N.W.2d 18, 25 (Minn. App. 2 011). However, step reductions are inappropriate when the
party’s future income is too speculative. See Schreifels, 450 N.W.2d at 374 (reversing the
district court’s decision to use step reductions because wife’s income was too speculative,
given her age, health, work history, and lack of marketable skills).
Here, wife’s future income is not specul ative. The district court relied on wife’s
employment history of 19 years as an insu rance-company sales representative and a
vocational expert’s testimony and report in findi ng that, after two y ears of rebuilding her
book of business, wife will have an earni ng capacity of $4,916 per month from her
employment. We defer to the di strict court’s assessment of the credibility of witnesses.
Sefkow v. Sefkow , 427 N.W.2d 203, 210 (Minn. 1988 ). Finally, the district court
specifically noted that the purpose of using a step reduction after two years is to give wife
incentive to build her b ook of business. The district court’s findings are not clearly
erroneous. Therefore, we conclude that the district court did not abuse its discretion by
including a step reduction in wife’s maintenance award.

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II. The district court did not abuse its di scretion in declining to require husband
to obtain a life-insurance policy.

Wife argues that the district court shoul d have required husband to obtain a life-
insurance policy to secure hi s spousal maintenance and chil d-support obligations. We
disagree.
“The district court ‘has discretion to consider whether the circumstances justifying
an award of maintenance also justify securing it with life insurance.’” Kampf, 732 N.W.2d
at 635 (quotation omitted). Such circumstan ces include the age, education, vocational
experience, and employment prospects of the spousal-maintenance recipient. Id.
Here, the district court found that th e circumstances did not justify requiring
husband to maintain life insurance based, in part, on wife’s age, good health, employment
as an insurance agent for 19 years, and earning capacity of at least $59,000 per year. The
record supports the district court’s findings. Therefore, the district court did not abuse its
discretion in declining to require husband to secure his main tenance and support
obligations with life insurance.
III. The district court did not err as a ma tter of law by vacat ing the prematurely
entered judgment and staying it pending further order.

Wife argues that the district court e rred in vacating the prematurely entered
judgment and staying the entry of judgment pending further order on the grounds that the
district court intended to ente r judgment on December 28, 20 16, 30 days after it filed its
original order and decree. We are not persuaded.
Wife’s argument is premised on the assumption that the premature entry of
judgment was a clerical error. A clerical error is an error of form made by the district court.
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Wilson v. City of Fergus Falls, 181 Minn. 329, 332, 232 N.W.2d 322, 323 (1930). “Such
a mistake ordinarily is apparent upon the face of the record . . . .”1 Id. Here, it is apparent
that the district court administrator premat urely entered judgement and that the court
administrator’s mistake was an error of form ra ther than substance. For purposes of this
appeal, we will assume that the entry of the judgment constitutes a clerical error.2
Minn. R. Civ. P. 60.01 provides that clerical mistakes in judgments may be corrected
by the court at any time upon its own initiativ e. However, the correction of the clerical
mistakes cannot state something other than what was originally pronounced. Denike v. W.
Nat’l Mut. Ins. Co., 473 N.W.2d 370, 372 (Minn. App. 1991).
Under Minn. R. Civ. P. 58.02, “[t]he court may order a stay of entry of
judgment . . . for a period not exceeding the time required for the hearing and determination
of a motion for new trial or . . . for amende d findings, and after such determination may
order a stay of entry of judgment for not more than 30 days.” The district court’s original

1 A clerical error is distinguishable from a mi stake, inadvertence, su rprise, or excusable
neglect that furnish grounds for relief under Mi nn. R. Civ. P. 60.02, which are errors of a
more substantial nature that n eed to be corrected by the par ties’ motions within a year.
Egge v. Egge, 361, N.W.2d 485, 488 (M inn. App. 1985) (quotation omitted). A clerical
error is different from a substantive judicial error as well. See Carter v. Anderson , 554
N.W.2d 110, 113 (Minn. App. 1996) (“Indeed, the drafters included Rule 60.01 to deal
with clerical errors without making similar provision for substantiv e judicial errors.”),
review denied (Minn. Dec. 23, 1996).
2 We note that because, under Wilson, a “clerical error” is an e rror of form by the district
court, a “clerical error” is a species of judicial error. 181 Minn. at 33 2, 232 N.W. at 323.
Other caselaw distinguishes between ministeria l error in the entry of a judgment and a
judicial error in the content of a judgmen t: “An unauthorized judgment is born of
ministerial error in its entry, but an erroneous judgment is born of judicial error.” Lyon
Dev. Corp. v. Ricke’s Inc., 296 Minn. 75, 79, 207 N.W.2d 273, 276 (1973). Because this
distinction was neither presented to nor considered by the district court, we do not consider
it here.
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order for judgment stayed entry of judgment for 30 days. Accordin gly, implicit in the
original order and decree was the idea that the original findings of fact, conclusions of law,
and order for judgment might be amended as a result of either or both parties’ motions for
new trial or amended findings, and were not final before December 28, 2016.
Here, the district court properly vacate d the unauthorized and prematurely entered
judgment. At the time of the vacation, both parties had previously filed motions for a new
trial or amended findings. Therefore, according to Minn. R. Civ. P. 58.02, the court stayed
entry of judgment pending furt her order, and after the determination of those motions, it
stayed entry for another 30 days. The district court complied with the Minnesota Rules of
Civil Procedure and did not err by vacating the prematurely entered judgment and staying
entry of judgment pending further order.
IV. Wife waived the issue of whether inte rest should be paid on wife’s cash-
equalizer payment by not raising it before the district court.

Wife argues that the district court abused its discretion when it determined that wife
was not entitled to receive interest on any unpaid balance on her cash-equalizer payment
until 180 days from entry of judgment. Appellate courts generally only address questions
presented to and considered by the district court. Thiele, 425 N.W.2d at 582. Here, wife
did not present this question to the district cour t, and the district court did not address it.
Therefore, we do not consider it for the first time on appeal.
V. The district court did not abuse its di scretion by declining to award wife need-
based attorney fees.

Wife argues that the district court abused its discretion by declining to award wife
need-based attorney fees. We disagree.
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A district court’s award of attorney fees will not be re versed absent an abuse of
discretion. Haefele v. Haefele, 621 N.W.2d 758, 767 (Minn. App. 2001), review denied
(Minn. Feb. 21, 2001). Need-based attorney fees shall be awarded “in an amount necessary
to enable a party to carry on or contest the proceeding” if th e court finds (1) the fees are
necessary for a good-faith assertion of rights; (2) the payor has the ability to pay the award;
and (3) the recipient lacks the ability to pay his or her own fees. Minn. Stat. § 518.14,
subd. 1 (2016). See Geske v. Marcolina , 624 N.W.2d 813, 816-18 (Minn. App. 2001)
(addressing need-based attorney’s fees).
Here, wife requested $250,000 in need-based attorney fees. The district court found
that the actual amount wife owed her attorney was $116,920 and determined that an award
of attorney fees to wife was inappropriate because she failed to submit any evidence to
show that she does not have the ability to pay them. The record supports the district court’s
findings. The district court awarded wife a cash-equalizer payment in the amount of
$1,205,043, which the district court found was sufficient to cover the $116,920 she incurred
in attorney fees. See Burns v. Burns, 466 N.W.2d 421, 424 (Minn. App. 1991) (finding no
abuse of discretion when $37,000 cash equa lizer payment was sufficient to cover $9,800
in wife’s attorney fees). This finding is not clearly erroneous, and the district court did not
abuse its discretion by declining to award wife need-based attorney fees.

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VI. The district court did not abuse its di scretion by alternating the right to claim
the dependency exemption each year and allowing husband to claim the
dependency exemption in his 2017 tax return.

Wife argues that the district court abused its discretion by allowing husband to claim
the dependency exemption for the partie s’ child in his 2017 tax return. 3 As the district
court properly noted, this issue was first asserted in a post-trial motion, and therefore was
untimely. Grigsby, 648 N.W.2d 726. This court does not review issues that were not
timely raised before the district court. Id.; see Thiele, 425 N.W.2d at 582.
VII. The district court did not err by pl acing the burden on husband to prove that
the increase in the value of the homestead was nonmarital and by finding that
the increase was marital.

In his cross-appeal, husband argues that wife had the burden to prove that the
increase in the value of the hom estead was actually marital property and that the district
court erred by placing the burden on him to show that the increase was nonmarital property.
Husband also argues that the district court e rred in classifying the entire increase of the
homestead’s value as marital. Neither argument is persuasive.
“Identification of the applicable burden and standard of proof presents questions of
law, which we review de novo.” C.O. v. Doe , 757 N.W.2d 343, 352 (Minn. 2008).
Generally, “[w]hether property is marital or nonmarital is a question of law we review de
novo, but we will disturb the district court’s underlying factual findings only if they are

3 The district court concluded that wife and husband can alternate the right to claim the
dependency exemption each year. Under the judgment, husband received the dependency
exemption in 2017. Wife initia lly argued that the district court abused its discretion by
alternating the right to claim the exemption. However, at oral argument, she conceded that,
in light of new tax law, that issue is now moot, and the only remaining issue is husband’s
dependency exemption claim for 2017.
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clearly erroneous.” Kerr v. Kerr , 770 N.W.2d 567, 569 (Min n. App. 2009) (citation
omitted). Further, we defer to the district court’s credibility determinations. Sefkow, 427
N.W.2d at 210.
Minn. Stat. § 519.11, subd. 5 (2016), states that an antenuptial agreement “shall be
prima facie proof of the matters acknowledged therein and as to those matters, the burden
of proof shall be and rest upon the person contesting the same.” Here, because the parties’
antenuptial agreement did not specifically cover increased value of the homestead, 4 it is
not clear whether it was a “matter” acknowledged in the antenuptial agreement. The parties
did not litigate the issue before the district court, and the district court did not explicitly
rule on the issue. However, we need not decide this issue because the same analysis applies
regardless of whether the homestead’s increa sed value was a matter acknowledged in the
antenuptial agreement.
Assuming that the homestead’s increased value was a matter acknowledged by the
antenuptial agreement, Minn. Stat. § 518.54, subd. 5 (1992), governs its marital/nonmarital
characterization. The parties’ antenuptial agreement incorporated Minn. Stat. § 518.54,
subd. 5, to govern classifica tion of properties as marital or nonmarital except for the
properties specifically designated as nonmarital. Increased value of the homestead was not
part of this exception.

4 The antenuptial agreement specifically provided that the business and its increase in value
were not governed by section 518.54, subdiv ision 5, and that they were nonmarital
properties. The agreement also provided that the homestead was nonmarital property.
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Under Minn. Stat. § 518.54, subd. 5, property acquired during the marriage is
presumed to be marital unless shown that it is nonmarital property. “The party seeking the
non-marital classification must show by a preponderance of the evidence that the asset was
acquired in exchange for non-marital property.” Pearson v. Pearson , 363 N.W.2d 337,
339 (Minn. App. 1985) (quota tion omitted). The increase in the value of nonmarital
property during a marriage retains its nonmar ital characteristic if it is shown to be
attributable solely to market forces or passive appreciation. Chamberlain v. Chamberlain,
615 N.W.2d 405, 413 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000).
Because the homestead’s value increased during the marriage, the increased portion
of the homestead’s value 5 is presumed to be marital und er section 518.54, subdivision 5,
and husband bears the burden to show that the increase was solely attributable to passive
appreciation.6 Therefore, the district court did not err when it placed the burden on husband
to trace the increase of the homestead’s value to a nonmarital source.
If the increased value of the homestea d is not a matter acknowledged in the
antenuptial agreement, Minn. Stat. § 518.003, subd. 3b (2016), which generally governs
the marital and nonmarital property, applies. Because the statutory language of Minn. Stat.

5 The district court found, and the parties do not dispute, that the original value of the
homestead, which was classified as nonmar tial property in the agreement, remains
nonmarital.
6 This is also consistent with Minn. Stat. § 519.11, subd. 5, because it is husband, not wife,
who is contesting the presumption of Minn. Stat. § 518. 54 incorporated in the antenuptial
agreement that the homestead’s increased value is marital.
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§ 518.003, subd. 3b, and Minn. Stat. §518.54, subd. 5, is the same, 7 our analysis does not
change.
Here, the district court found that husband failed to present evidence or credible
testimony to rebut the contrary evidence th at marital assets we re used to make
improvements to the home. On this record, we conclude that the di strict court did not
clearly err when it determined that the increased value of the homestead during the
marriage was marital property.
VIII. The district court’s determination th at there was a marita l component to the
increase in the value of the business was not erroneous.

Husband similarly argues that the district court erred by identifying some marital
interest in the business and by placing on husband the burden to prove that the increase
was nonmarital. Again, we disagree.
The antenuptial agreement e xplicitly provided that th e increased value of the
business was nonmarital property not governed under section 518.54, subdivision 5.
Therefore, under Minn. Stat. § 519.11, subd. 5, wife, who contested the antenuptial
agreement’s nonmarital classification of the in crease in the value of business, bears the
burden of proof. Here, it is not clear on whom the district court imposed the burden of
proof.
However, we need not decide whether the district court erred on the burden of proof
because the record shows that both parties submitted evidence to the district court

7 Minn. Stat. §518.54, subd. 5, was renumbered to Minn. Stat. § 518.003, subd. 3b, in 2006.
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addressing the extent of the marital and nonmarital interests in the business and the increase
of its value and that the district court considered both parties’ evidence on that point.
Husband argued that the reinvestment of income was simply an offset which did not
contribute to the increase in the value of the business, but the district court found this
argument to be not credible. Instead, the district court found credible the spending analysis
and testimony of wife’s fore nsic accountant, which showed husband’s reinvestment of
marital income back into the business and a high degree of commingling of personal and
business funds used to pay personal and busine ss expenses. Ultimately, the district court
concluded that the increase in the business’s value attributable to husband’s reinvestment
of martial income in the business was marital, but that the rest of the value of the business
was husband’s nonmartial property. We de fer to the district court’s credibility
determinations, and the district court’s findings are supported by the record. See Sefkow,
427 N.W.2d at 210. Therefore, the district court’s determination that a portion of the
increase in the value of the business was martial property was not clearly erroneous.
Moreover, even assuming that the district court erroneously put the burden of proof
on husband, wife nevertheless satisfied her burden to prove that the increase of the
business’s value was marital. We conclude that any error the district court may have made
in its placement of the burden of proof is harmless and is not a ground for reversal. See
Minn. R. Civ. P. 61 (harmless error is disregarded).
Affirmed.