In re the Marriage of: Lynn J. Dreger, 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This opinion will be unpublished and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
A17-1430

In re the Marriage of: Lynn J. Dreger, petitioner,
Respondent,

vs.

Richard C. Dreger,
Appellant.

Filed June 25, 2018
Affirmed
Reyes, Judge

Ramsey County District Court
File No. 62-FA-15-2147

Randall S. Johnson, Randall S. Johnson Law Office, P.L.L.C., St. Paul, Minnesota (for
respondent)

Tifanne E.E. Wolter, Henningson & Snoxell, Ltd., Maple Grove, Minnesota (for appellant)

Considered and decided by Jesson, Pres iding Judge; Connolly, 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-husband argues that the district court abused its discretion (1) in awarding
respondent-wife spousal maintenance based on an erroneous calculation of wife’s monthly
expenses; (2) by not consider ing his 50% survivor election in determining property
division; and (3) by awarding wife (a) the pa rties’ 2015 income-tax refund; (b) the funds

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from husband’s bank account as of the date of va luation; and (c) two Terry Redlin prints.
Husband also argues that the district court erred by (1) determining his Public Employees
Retirement Association (PERA) pension payments are marital income and (2) classifying
the homestead as marital property. We affirm.
FACTS
Appellant Richard Dreger ( husband) and respondent L ynn Dreger (wife) were
married from 1996 to 2017. At the time of their wedding, husband was a 54-year-old police
officer and wife was a 46-year-old bartende r. Husband and wife both stopped working
right after the marriage and have lived off of husband’s PERA pension payments of $6,831
per month. Husband elected the survivor a nnuity option with his PERA pension, which
entitled wife to a 50% survivor annuity of $3,415 per month after husband’s death.
In April 1997, the parties moved to a cabi n at Sturgeon Lake in Pine County (the
cabin), which husband owned prior to the marriage. Husband and wife renovated the cabin
during the marriage by taking out a mortgage lo an. They repaid the loan with payments
from husband’s pension.
In 2005, the parties sold the cabin and bought a home in Pine County (the
homestead) by using the proceeds from the sale of the cabin and taking out a mortgage
loan. The parties paid the homestead mortgage with husba nd’s pension payments and
wife’s social-security benefits , which she started receiving in 2013. The parties resided
there until their separation in May 2015.
Wife petitioned for dissolution of marriage in September 2015, and the district court
held a hearing in January 2017. At the time of trial, husband was 75 years old and wife

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was 67 years old, and bot h had health issues. Wife has had a mild cognitive impairment
since 2013, and husband has chronic obstruc tive pulmonary disease (COPD), diabetes,
high blood pressure, and hip issues.
On April 19, 2017, the district court ente red findings of fact, conclusions of law,
order for judgment, and judgment and decree. Husband filed motions for a new trial and
amended findings, which the district court denied. Husband appeals.
D E C I S I O N
I. The district court did not abuse its discretion in awarding wife spousal
maintenance in the amount of $2,850 per month.

Husband argues that the district court abused its discretion by awarding wife spousal
maintenance based on an erroneous calculation of wife’s monthly e xpenses. 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). “A district court abuses its discretion when it makes findings
unsupported by the evidence or wh en it improperly applies the law.” Hemmingsen v.
Hemmingsen, 767 N.W.2d 711, 71 6 (Minn. App. 2009), review granted (Minn. Sept. 29,
2009), and appeal dismissed (Minn. Feb. 1, 2010). We will uphold the district court’s
findings of fact concerning spousal maintenance if they are not clearly erroneous. Gessner
v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992). A factual finding is clearly erroneous
only if it is “against logic and the facts on record,” Curtis v. Curtis, 887 N.W.2d 249, 252
(Minn. 2016), leaving us with a “definite and firm convictio n that a mistake has been

4
made.” Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn. 2008) (quotation omitted).
We also defer to the district c ourt’s credibility determinations. Sefkow v. Sefkow , 427
N.W.2d 203, 210 (Minn. 1988).
Here, the district court awarded wife $2,850 per month in permanent spousal
maintenance. The district court reached th is amount by finding that wife had a monthly
income of $734 per month and that her e xpenses of living on her own were $3,357 per
month, including $1,100 in housing expenses and $300 in transportation costs.
Husband first argues that wife never testif ied as to her plan to live independently,
and claims that wife’s daughter, who was living with wife at the time of trial, testified that
wife had no plans to move to another plac e. Husband’s arguments are based on an
erroneous reading of the record.
Wife clearly and unequivocally testified at trial that she intended to live on her own,
preferably in North St. Paul or Miltona, and submitted the estimated costs of an apartment
rental in those areas. Based on wife’s testimony and the range of rent prices in North St.
Paul and Miltona, the district court made detailed findings regarding wife’s housing
expense of $1,100 per month. Furthermore, daughter did not deny wife’s plan to move to
Miltona. She simply said they never discussed it.
Husband also argues that including trans portation costs in wife’s monthly expenses
was erroneous because of wife’s inability to drive. The dist rict court declined to award
wife $800 per month to buy and maintain a vehicle. However, the district court specifically
found that she would still n eed some transportation, and set aside $10 per day without

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specifying the type of transportation wife can use. As these findings are supported by the
record and are not clearly erroneous, the district court did not abuse its discretion.
II. The district court did not err by determining husband’s PERA pension
payments are marital income.

Husband argues that PERA pension payments are not “income,” but rather a
distribution of the benefits he earned prior to the marriage. We disagree.
Husband’s argument requires us to interpret the statute defining income. We review
a question of statutory in terpretation de novo. Sanvik v. Sanvik , 850 N.W.2d 732, 735
(Minn. App. 2014).
Minn. Stat. § 518A.29 (2016) states th at “gross income includes any form of
periodic payment to an individual, including . . . pension . . . payments . . . .” (emphasis
added). In Lee v. Lee, the Minnesota Supreme Court interpreted section 518A.29, stating
that the payments from pension benefits earned prior to marriage are income. 775 N.W.2d
631, 638-39 (Minn. 2009). Because husband accrued all of his pension benefits before the
parties married, the district court prope rly characterized husband’s PERA pension
payments received during the marriage as marital income 1 derived from husband’s
nonmarital pension.

1 Income from a nonmarital asset received during the marriage is a marital asset. Swick v.
Swick, 467 N.W.2d 328, 331 (Minn. App. 1991), review denied (Minn. May 16, 1991).
Here, husband does not dispute that income from a nonmarital asset becomes a marital
asset if received during the marriage.

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III. The district court did no t err by classifying the homestead as marital property.

Husband argues that the homestead is non marital property because the funds used
to purchase it were from the proceeds of selling the cabin and from his PERA pension
payments. Husband’s argument lacks merit.
Whether property is marital or nonmarital is a question of law that we review de
novo, Johnson v. Johnson, 388 N.W.2d 47, 48-49 (Minn. 1986), but we defer to the district
court’s underlying findings of fact. Olsen v. Olsen, 562 N.W.2d 797, 8 00 (Minn. 1997).
The spouse claiming that property is nonmarital must prove the necessary underlying facts
by a preponderance of the evidence. Wiegers v. Wiegers , 467 N.W.2d 342, 344 (Minn.
App. 1991).
Under Minn. Stat. § 518.003, subd. 3b (2016), all property acquired during the
marriage is presumed to be marital property. Although property acquired by one spouse
before the marriage is nonmar ital property, “[w]hen nonmarital and marital property are
commingled, the nonmarital asset may lose that status unless the party can trace it to a
nonmarital source.” Swick, 467 N.W.2d at 330; Minn. Stat. § 518.003, subd. 3b.
Here, we presume the homes tead is marital property as it was purchased during the
marriage. The parties partially financed the homestead using proceeds from the sale of the
cabin. The cabin was original ly nonmarital property, but the parties renovated it using
pension payments, which were ma rital income. As a result, when the cabin was sold, it
included a comingled combination of marita l and husband’s nonmarital interests.
Therefore, absent husband’s tracing of his nonmarital interest in the cabin, the renovated
cabin and the proceeds from its sale were marital. In addition, the parties financed the rest

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of the homestead’s mortgage using husband’s pension payments and wife’s social-security
benefits, which were both marital income. Because husband failed to trace the interests in
the cabin and homestead to a nonmarital source, the district court did not err in determining
that the entire homestead was marital property.
IV. The district court properly consid ered husband’s PERA survivor-benefit
election in determining the property division.

Husband claims that the district court abused its discreti on by not considering
husband’s 50% survivor election in determining the property division.2 We disagree.
“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).
Minn. Stat. § 518.58, subd. 1 (2016), requires proper consideration of a broad range
of factors in determining what is a “just and equitable division.” Nolan v. Nolan , 354
N.W.2d 509 (Minn. App. 1984). The factors include each party’s age, health, and the
amount and sources of income. Minn. Stat. § 518.58, subd. 1.
Here, contrary to husband’s argument, the district court took into consideration
husband’s 50% survivor election when determin ing the property division. The district

2 In the issue statements of husband’s brief, he states that the district court erred by not
considering the 50% survivor election in de termining spousal maintenance as well as
property division. However, husband never discussed, analyzed, or argued the 50%
survivor election in the context of spousal ma intenance in his brief. Issues not argued in
the briefs are deemed forfeited on appeal. Scheffler v. City of Anoka, 890 N.W.2d 437, 451
(Minn. App. 2017).

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court found that wife was significantly younge r than husband, but “[ t]he 50% survivor
annuity for Wife reduces her need to save to support herself following Husband’s death.”
In dividing the marital property, the distri ct court accordingly decreased her reasonable
monthly living expenses in consideration of the 50% survivor election. Because the district
court properly considered wife’s future income in deciding the property division as section
518.58 directs, it did not abuse its discretion.
V. The district court did not abuse its di scretion by awarding wife the parties’
2015 income-tax refund.

Husband argues that the district court abus ed its discretion by awarding wife the
parties’ 2015 income-tax refund because they agreed at a pre-trial hearing that husband
would retain the refund. Husband’s argument is meritless.
Nothing in the record supports husband’s interpretation. Although husband argues
that such an agreement was read into the record, he fails to point out the relevant part of
the record. The party asserting error has the burden of demonstrating it. White v. Minn.
Dep’t of Nat. Res. , 567 N.W.2d 724, 734 (Minn. App. 1997), review denied (Minn. Oct.
31, 1997). We discern no abuse of discretion by the district court.
VI. The district court did not abuse its disc retion by awarding wife the funds from
husband’s bank account as of the date of valuation.

Husband argues that the district court abused its discretion by awarding wife
$11,430 for her share in the marital bank ac counts, because husband already paid her
$6,000 from the bank accounts that contained the $11,430. We disagree.
Minn. Stat. § 518.58, subd. 1, states that the district court “shall value marital assets
for purposes of division . . . as of the da y of the initially schedul ed prehearing settlement

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conference. . . .” If there is a substantial change in the value of an asset “between the date
of valuation and the final distribution, the court may adjust the valuation of that asset as
necessary to effect an equitable distributi on.” Minn. Stat. § 518.58, subd. 1 (emphasis
added). The statutory word “may” is permissive, not mandatory. Agassiz & Odessa Mut.
Fire Ins. Co. v. Magnusson, 272 Minn. 156, 165, 136 N.W.2d 861, 868 (1965); Minn. Stat.
§ 645.44, subd.15 (2016).
Nothing in the record indicates that th e $6,000 of advanced payment should be
counted toward satisfying husb and’s obligation of $11,430, and husband did not point to
such evidence. In Hortis v. Hortis, this court held that the di strict court did not abuse its
discretion in choosing to disregard depletions in the savings account after the valuation
date. 367 N.W.2d 633, 636-37 (Minn. App. 1985). The di strict court’s decision to
disregard the payment is well within its discretion.
VII. The district court did not abuse its discretion by awarding wife two Terry
Redlin prints.

Husband argues that the district court abus ed its discretion by awarding wife two
Terry Redlin prints, because the district c ourt classified them as husband’s nonmarital
property in its findings of fact. We are not persuaded.
In its findings of fact, the district c ourt found that husband’s nonmarital personal
property was set forth in trial Exhibit 106, which included the prints. However, in another
paragraph in the findings of fact, the district court classified the prints as marital property
in dispute and awarded them to wife. In its conclusions of law, the district court awarded
wife both Terry Redlin prints.

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Appellate review is generally limited to issues that were presented to and considered
by the district court in deciding the matter before it. Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988). Here, husband did not raise this issue before the district court and therefore
forfeited it. Even if husband did not forfeit the issue, his argument lacks merit. This court
recognized in Dailey v. Chermak that there can be “conflicts between findings and
conclusions, or inconsistencies, or omissions.” 709 N.W.2d, 626, 631 (Minn. App. 2006),
review denied (Minn. May 16, 2006). When a conflict between statements in a finding of
fact and a conclusion of law remains after the expiration of all opportunities for corrective
actions,3 conclusions of law prevail over an inconsis tent statement in the findings of fact.
Id. Therefore, the district court’s conclusions of law that the Terry Redlin prints should go
to wife prevails.
Affirmed.

3 We noted in Dailey, 709 N.W.2d at 631, that the pa rties should promptly correct the
inconsistencies through post-trial motions and appeals to resolve issues arising from such
irregularities. Here, as noted, husband did not raise this issue in his motions for amended
findings and a new trial.