In re the Marriage of: Beth Ann Bersaw, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0708

In re the Marriage of:
Beth Ann Bersaw, petitioner,
Respondent,

vs.

Richard George Bersaw,
Appellant.

Filed April 15, 2019
Affirmed
Smith, John, Judge*

Blue Earth County District Court
File No. 07-FA-16-4220

Julia Ketcham Corbett, Alyssa Thibert Nelson, Blethen Berens, Mankato, Minnesota (for
respondent)

Karl O. Friedrichs, Friedrichs Law Office, P.A., Mankato, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Jesson, Judge; and Smith,
John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We af firm the district court’s judgment dissolving appellant -husband and
respondent-wife’s marriage because the district court did not deprive husband of due
process; the district court did not err in denying appellant’s nonmarital property claim; and
the award of attorney fees was within the discretion of the district court.
FACTS
Appellant-husband Richard George Bersaw and respondent-wife Beth Ann Bersaw
were both previously divorced with children from prior marriages when they moved in
together in late 1992 or early 1993. Wife moved into husband’s home in Mankato (45
Mary Oak Lane). Late in 1993, husband sold 45 Mary Oak Lan e, bought a new home in
Kansas, and the parties moved to Kansas. The parties married in 1995 in Kansas.
Shortly aft er getting married, the parties sold the Kansas home, mov ed back to
Mankato, and bought their first home as a married couple (Marwood home). Up until the
time of their divorce, the parties acquired multiple properties, constructed new homes, and
resold properties. They first bought a lot in a subdivision in Mankato in 2000 (Limestone
lot). Using the proceeds from the sale of the Marwood home, they constructed a new home
on the land . Two years later, they bought a second lot in the same subdivision (Ceda r
Meadows property).
In 2003, husband’s father passed away and left husband as the successor trustee of
his trust. According to the trust, all the trust real estate was to be distributed to husband.
A month after his father’s death, husband, as successor trustee, transferred 38 acres of real

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estate from the trust to himself and wife as joint tenants. After selling the Limestone home,
the parties built a home on this land (140 Mary Oak Lane). They lived at 140 Mary Oak
Lane until their separation.
The parties separated in June 2014, following husband’s arrest for criminal sexual
conduct. In January 2015, he was convicted of two counts of criminal sexual conduct and
was sentenced to 76 months in prison. He expects to be released in 2019.
In July of 2016, wife filed for divorce. In May of the following year , husband
moved for summary judgment, arguing that he ha d a 57.65% nonmarital interest in their
homestead (140 Ma ry Oak Lane) and a 100% nonmarital interest in the land transferred
from his father’s trust. Following a motion hearing, the district court denied husband’s
motion and awarded wife $9,800 in need-based attorney fees.
A court trial was held on June 27 and 29, 2017. Husband did not personally appear
for trial, but testified via telephone for one hour from prison. At the beginning of trial,
husband’s counsel informed the district court that the prison would only allow husband to
testify for one hour . Because of husband’s incarceration, t he district court accepted, and
considered as testimony, three affidavits submitted by husband.
At trial, wife testified that someone broke into her garage in 2014. She alleged that
the intruder was husband and that he removed something of value from the garage attic.
Following trial, husband informally requested that the district court reopen evidence to
admit documentation of his conditional release that allegedly disproves the allegation. The
district court denied his motion.

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In October of 2017, the district court issued its judgment and decree for dissolution.
The district court found that husband lacked credibility based on his felony convictions and
his “insistence that his memo ry was accurate” when it appeared his claimed personal
memories of the sales prices of the properties were actually derived from attempting to
calculate sales prices from deed tax figures . The district court found wife’s testimony of
the garage intrusion credible, as supported by the testimony of both her son and husband’s
son. Based on their testimony, the district court found that it was “more likely than not ”
that husband broke into the homestead ’s garage and removed something of value
therefrom. Because of this, and his poor complia nce with interrogatories and requests for
documents, the district court sanctioned husband, awarding wife $20,000 in attorney fees.
The district court then divided their property. Relevant to this appeal, the district
court found that the land they owned in joint tenancy was marital property, which included
their homestead. It ordered that the homestead be sold and the proceeds split evenly
between them. It also distributed the proceeds from the sale of property held in joint
tenancy between them.
Following the district court’s order , both parties submitted motions to the district
court. Husband moved for amended findings and a new trial. Wife moved to co rrect
clerical errors and for amended findings. Following a motion hearing , the district court
denied husband’s motions, granted wife’s motions, and entered an amended judgment.

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D E C I S I O N
I. Due process
Husband raises numerous allegations of due -process violations, arguing that their
cumulative impact affords him the right to a new trial. These alleged violations arise from
husband’s incarceration during the time leading up to and during trial. Both the United
States Constitution and the Minnesota Constitution provide that no person shall be deprived
of property without due process of law. U.S. Const. amend. XIV, § 1; Minn. Const. art. I,
§ 7. Whether an individual’s due-process rights have been violated is a question of law we
review de novo. Rew v. Bergstrom, 845 N.W.2d 764, 785 (Minn. 2014).
Generally, “due process requires notice and a meaningful opportunity to be heard
before a fair and impartial decision maker.” State ex rel. Marlowe v. Fabian, 755 N.W.2d
792, 794 (Minn. App. 2008). “The requirements of due process are flexible and call for
such procedural protections as the particular situation demands.” Baker v. Baker , 494
N.W.2d 282, 287 (Minn. 1992).
Husband does not argue that he had a n absolute right to be p hysically present at
trial. Instead, he argues that he was denied a fair trial because of (1) “his inability to
effectively participate in his defense”; (2) his limited time in prison to draft affidavits with
his counsel to submit evidence to the court ; (3) the short time he had to testify ; (4) the
inability to assist counsel during trial ; (5) the lack of time to rebut evidence of the garage
intrusion; and (6) the district court’s finding that husband was not credible.
We acknowledge that representing an incarcerated defendant in a civil case can
present various challenges. We agree that husband’s counsel would have had an easier

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time representing husband if he had not been incarcerated leading up to and during the trial.
However, this does not lead us to the conclusion that husband was denied a fair trial.
During the entire trial, husband was represented and his counsel was present. The
record shows that husband’s counsel did not request that the district court provide a n
alternate means for husband to testify or to be present at trial, through live video or audio
capabilities or a temporary release from prison. Instead, at the beginning of trial, husband’s
counsel informed the district court that the prison would only allow hus band to testify for
one hour. Counsel indicated that he believed this would be sufficient time. Furthermore,
the district court accepted thre e affidavits to be considered in addition to husband’s
testimony. The district court also ensured that husband’s counsel had time for redirect,
during which husband’s counsel asked about a number of issues. When the district court
gave counsel a one-minute warning during redirect, counsel stated, “I don’t have any more
questions, Your Honor. I would be just beating a horse here.” Counsel also had the
opportunity to develop the record on the garage intrusion, but counsel merely asked
husband, “[D]id you break into your garage?” and husband answered in the negative.
The district court expressed sympathy as to the di fficulties of representing an
incarcerated client. I n its order considering husband’s request to reopen the record, the
court stated:
Husband’s attorney has made much of the difficulties of
preparing for trial while Husband is incarcerated. However,
Husband’s attorney previously explained that Husband was
already incarcerated when Husband’s Attorney agreed to
represent Husband. Th is Court is sympathetic with the
difficulties involved with the circumstances of this case, but to
agree to represent an incarcerated client and then proceed with

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complaints about said difficulties is not a proper justification
for procedural exceptions and/or leniency. It is not lost on this
Court that Husband’s incarceration should not force Wife to
delay the relief requested. . . .

Husband was represented throughout the dissolution proceedings and his counsel
was present during both days of trial. The district court accepted husband’s affidavits in
addition to his testimony by telephone. The district court ensured that husband’s counsel
had time for redirect during his limited time to testify as allowed by the prison. His counsel
never requested that the district court provide alternative means for husband’s testimony.
Accordingly, husband was not deprived of due process in his dissolution proceedings.
II. Tracing nonmarital property
Husband argues that the district court applied a more stringent tracing standard to
husband than is required to prove his nonmarital interest. “Whether 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 clearly erroneous.” Kerr v. Kerr, 770 N.W.2d
567, 569 (Minn. App. 2009). “Whether a nonmarital interest has been traced is also a
question of fact,” which this court reviews for clear error. Id. at 571.
Property acquired during marriage is presumed to be marital property. Minn. Stat.
§ 518.003, subd. 3b. (201 8). Property “acquired as a gift, bequest, devise or inheritance
made by a third party to one but not to the other spouse” is nonmarital property. Id.
“[C]ourts may trace a current asset to a nonmarital source.” Senske v. Senske, 644 N.W.2d
838, 841 (Minn. App. 2002). “To claim a nonmarital interest, a party must show by a

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preponderance of the evidence that the asset was acquired in exchange for nonmarital
property.” Id.
Nonmarital property must be kept separate from m arital property or be readily
traceable if commingled with marital property. Olsen v. Olsen , 562 N.W.2d 797, 800
(Minn. 19 97). “[T]racing property to its nonmarital source does not require intricate
detail.” Risk ex rel. Miller v. Stark, 787 N.W.2d 690, 697 (Minn. App. 2010), review denied
(Minn. Nov. 16, 2010). “A nonmarital interest in property may be established on the basis
of credible testimony.” Kerr, 770 N.W.2d at 570. And we defer to a district court’s
credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
Husband argues that the district court held him to a higher standard to prove tracing
of his nonmarital funds and that this amounted t o a clear error because it was induced by
an erroneous view of the law. He argues that the district court required he provide closing
documents when the district court should have relied on other documents he submitted,
specifically mortgage documents and warranty deeds . Husband claims that he proved by
a preponderan ce of the evidence that he traced his nonmarital funds from each home,
starting with the two properties he purchased before the parties married, continuing through
the construction of the parties’ homestead.
The district court made detailed findings reg arding each purchase and sale of real
estate property, starting with the home husband owned when they first moved in together
in late 1992 or early 1993 . Based on the documents husband submitted, the district court
addressed each of husband’s claims regarding the sale prices of the homes and the amount
husband paid from his alleged nonmarital funds. As an example, the district court indicated

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that husband submitted mortgage documents and the warranty deed for 45 Mary Oak Lane
to claim that the sales price was $109,000 and that he profited $82,000. The warranty deed
shows that the deed tax due on November 12, 1993 was $359.70. The mortgage documents
show that in January 1993 husband took out a $26,000 mortgage on the home and that in
November of that year the mortgage was satisfied. The court reasoned that without
documentation “on the record with which the Court could determine the actual financial
circumstances of the sale of said property . . . [t]hese claims are not proven.” With each
subsequent purchase and sale of real estate, the district court examined the documentation
provided by husband to substantiate his claims. In each instance, the district court set out
logical reasoning for its findings and conclusions that from one sale to the next purc hase,
husband failed to prove by a preponderance of the evidence that he could trace his
nonmarital interest in the real estate properties owned during their marriage.
Additionally, the district court found that husband could not prove the amount it
cost to build their homestead or to prove the amount of any nonmarital funds he used
towards construction of the home. He alleged that it cost $310,000 to construct the home
and that he contributed $157,161 in nonmarital funds to build it. B ut he provided no
documentation of the actual costs to build the home or the source of those funds . We
conclude that the lack of documentation to support husband’s tracing of nonmarital interest
from 45 Mary Oak Lane to the Kansas home, from the Kansas home to the Marwood home,
from the Marwood home to the Limestone lot, and from the newly constructed Limestone
home to constructing 140 Mary Oak Lane precluded the district court from finding

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husband’s claims were proven by a preponderance of the evidence. We therefore hold that
the district court did not err in its tracing analysis.
III. Transfer of property in joint tenancy
Husband challenges the district court’s classification of the transfer of 38 acres of
real estate in joint tenancy as marital property. He argues that the district court erroneously
placed the burden on him to prove that he did not gift the real estate to his wife. Again, we
review the district court’s division of property for an abuse of discretion. McCulloch v.
McCulloch, 435 N.W.2d 564, 568 (Minn. Ap p. 1989). The characterization of a type of
property as marital or nonmarital is a question of law we review de novo. Kerr, 770
N.W.2d at 569.
The state of a title does not determine whether property acquired during marriage is
marital or nonmarital. Montgomery v. Montgomery , 358 N.W.2d 169, 172 (Minn. App.
1984). Additionally, “merely transferring title from individual ownership to joint tenancy
does not transform non-marital property into marital property.” Id. But when more than a
legal transferenc e takes place, and a valid gift is given, then the property cannot be
classified as nonmarital. McCulloch, 435 N.W.2d at 568. “[T]he party asserting that there
was a gift must prove the requisite elements by clear and convincing evidence.” Id. A
valid gift requires (1) donative intent, (2) delivery, and (3) “absolute disposition of the
property.” Id. The conveyance of property in joint tenancy may be considered strong
evidence of the intent to gift the property to both parties. Olsen v. Olsen, 552 N.W.2d 290,
292 (Minn. App. 1996), aff’d 562 N.W.2d at 797 (Minn. 1997).

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Husband correctly asserts that wife carries the burden of proof to show that the
transfer of property was a gift. In wife’s closing argument memorandum to the distric t
court, she pointed to record evidence to show that husband transferred the property in joint
tenancy with the intent to gift the property to both parties. Wife showed by clear and
convincing evidenc e that the property was a gift and h usband attempted to refute this
evidence by arguing that he merely transferred the property to himself and wife in joint
tenancy for estate-planning purposes. Accordingly, the district court discussed the transfer
of property:
Approximately 38 acres of real estate from the Trust is
transferred to Husband and Wife as joint tenants. Husband
claims this was done “solely” for estate planning purposes and
he did not gift any interest to Wife. Although this Court finds
that estate planning was a factor in transferring said prop erty,
Husband’s claim that he did not intend to create any marital
interest for Wife is not credible. After having been married for
8 years (and having cohabit ated years before marriage), and
having no sign that the marital relationship was in jeopardy,
Husband voluntarily granted the property to himself and his
Wife as joint tenants. The tax statements were sent to both
Husband and Wife, and there is no documentation or
suggestion that Husband solely financed the tax payments on
said real estate. Husban d and Wife managed the property by
paying taxes out of their co -mingled incomes. Husband’s
claim that the property is non-marital is not proven. It has been
clearly and convincingly established that the transfer to
Husband and Wife from the Trust was mea nt to grant both
Husband and Wife a mutual and indistinguishable property
interest. This property is marital.

(Citations omitted.)
We conclude that the district court appropriately determined that the property held
in joint tenancy was marital property . The district court did not erroneously place the

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burden on husband to prove the property was not a gift, but instead made detailed findings
and conclusions consistent with the law.
In support of his argument that he did not intend to gift a property interest to wife,
husband attempts to distinguish this case from our decision in McCulloch. In McCulloch,
husband also transferred his interest in the parties’ homestead to himself and his wife as
joint tenants. 435 N.W.2d at 566. At trial he testified that the parties had agreed on the
transfer and that at the time he wanted his wife to have an interest in the property. Id. This
court ruled that the transfer was a gift because husband i ntended that they both have an
interest in the homestead. Id. at 568.
Here, husband argues that he only intended to transfer the property into joint tenancy
for estate-planning purposes, but did not intend to gift her an interest in the property. He
asserts that, unlike in McCulloch, the district court was precluded from finding he intended
the transfer in joint tenancy as a gift because he did not testify that it was to care for his
wife. But this argument goes against logic. At trial, the attorney who drafted the transfer
to joint tenancy testified. He explained that husband’s “estate planning theory” was that in
the event husband died before wife, the property would easily transfer to wife and she
would save money. The attorney also testified that he normally explains to his clients that
“joint tenancy means that the other joint tenant would automatically inherit” following the
other’s death. Husband stated that he intended to plan for their futures, which implies that
in the event he died before his wife, she would be the sole owner of the property and would
be able to avoid probate. Husband’s alleged non-gift purpose did not preclude the district
court from concluding that the property held in joint tenancy was marital property,

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especially in light of the marriage and their shared management and payment of taxes for
the property. Therefore, the district court did no t err in determining that the transfer of
property to joint tenancy was intended to grant wife an interest in the property.
IV. Award of attorney fees
Husband argues that the district court inappropriately sanctioned him for the alleged
garage break-in, awarding wife attorney fees of $20,000. 1 We review a district court’s
imposition of a sanction for an abuse of discretion, which is only met “when it is clear that
no reasonable person would agree with the trial court’s assessment of what sanctions are
appropriate.” Patton v. Newmar Corp. , 538 N.W.2d 116, 119 (Minn. 1995) (quotation
omitted).
“District courts possess inherent authority to impose sanctions as necessary to
protect their vital function —the disposition of individual cases to deliver remedies for
wrongs and justice.” Peterson v. 2004 Ford Crown Victoria, 792 N.W.2d 454, 462 (Minn.

1 In response to wife’s reply brief, husband argues that Minn. Stat. § 518.14, subd. 1 (2018)
controls the award of attorney fees. Section 51 8.14, subdivision 1 provides for two types
of fees: need -based and conduct -based. The district court must award need-based fees
when it finds the fees are necessary and will not contribute unnecessarily to the length and
expense of the proceeding, and that the party from whom they are sought has the means to
pay them while the party to whom fees are awarded does not. See Geske v. Marcolina, 624
N.W.2d 813, 816 -17 (Minn. App. 2001). The district court also has discretion to award
conduct-based fees “against a party who unreasonably contributes to the length or expense
of the proceeding.” After deciding that husband could not pay need -based fees as he “has
no legitimate income,” the district court concluded that “Husband’s conduct in failing to
give detailed answers or documents in the discovery process” alone did not rise to the level
to support conduct-based attorney fees. The district court then reasoned whether sanctions
were warranted, separate from attorney fees under Minn. Stat. § 518.14, subd. 1. Thus,
husband’s argument that the district court awarded attorney fees under Minn. Stat.
§ 518.14, subd. 1 is incorrect.

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App. 2010) (quotation omitted). This includes awarding attorney fees. Id. “Attorney fees
may be an appropriate sanction when a party has ‘acted in bad faith, vexatiously, wantonly,
or for oppressive r easons.’” Id. (quoting Chambers v. NASCO, Inc. , 501 U.S. 32, 45 -46,
111 S. Ct. 2123, 2133 (1991)). A finding of bad faith is necessary before awarding attorney
fees under the court’s inherent power, and must be identified and supported by the record.
Id. “The task of determining what, if any, sanction is to be imposed is implicated by the
broad authority provided the trial court.” Patton, 538 N.W.2d at 119.
Husband argues that the district court erroneously sanctioned him for the highly
disputed garage intrusion. But the district court did not sanction husband for the garage
incident alone. Instead, the district court reasoned,
Given Husband’s blatant willingness in this matter to disregard
the discovery process, disregard Wife’s rights, disregard th e
integrity of the legal system, and continually claim personal
recollections of transactions that he does not in fact recall (all
to help bolster his non -marital claims), it is abundantly clear
that a very large sanction will be required in order to prope rly
dissuade Husband from engaging in similar conduct in the
future.

The award of attorney fees was based on a number of factors, not just the garage intrusion
as husband purports. Based on the district court’s determination that husband’s conduct
was so severe that it required sanctions, w e conclude that the award of attorney fees was
within the district court’s broad discretion.
Affirmed.