In re the Marriage of: Kristy Ann Ryan, petitioner, Appellant,

This opinion will be unpublished and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
A18-1526

In re the Marriage of:
Kristy Ann Ryan, petitioner,
Appellant,

vs.

Jeffrey Alan Ryan,
Respondent.

Filed September 9, 2019
Affirmed in part, reversed in part, and remanded
Bjorkman, Judge

Scott County District Court
File No. 70-FA-17-8410

Mark A. Olson, Olson Law Office, Burnsville, Minnesota (for appellant)

Adam J. Blahnik, Blahnik, Prchal & Stoll, PLLC, Prior Lake, Minnesota (for respondent)

Considered and decided by Bjorkman, Presiding Judge; Jesson, Judge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
In this marital-dissolution appeal, father challenges the district court’s physical -
custody and parenting-time decisions, and wife challenges the property division. Because
the district court erred in applying the marital-property presumption and in determining

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marital and nonmarital property, we reverse an d remand the property division . But we
otherwise affirm.
FACTS
The ten-year marriage of appellant-mother Kristy Ann Ryan and respondent-father
Jeffrey Alan Ryan was dissolved in 2018. The parties have one minor child born in 2010;
the child is on the autism spectrum and has special needs. The parties stipulated to joint
legal custody, and the district court granted sole physical custody of the child to mother
after applying the statutory best-interests factors. Father was granted parenting time with
the child before and after school and on alternate weekends, and during weekdays and
alternate weekends in the summer. The parties waived maintenance, and the district court
ordered father to pay child support.
At the time of the dissolution, t he parties’ assets included their Prior Lake home,
which mother owned before the marriage. The home has a stipulated value of $280,000
and was subject to a $77,900 mortgage . They also owned a cabin purchased during the
marriage with a $193,000 appraised value. During the marriage, father received funds from
various sources related to several work-related injuries,1 including (1) a 2013 net workers’
compensation settlement of $87,000 , (2) lump -sum Social Security disability income
(SSDI) payments of $63,681.90 for himself and $35,976 for the child for the period from

1 Father was injured six times before the marriage and once during the marriage. His
injuries occurred in 1992 (neck and head), 1994 (finger), 1996 (low back), 2004 (knee),
2005 (shoulder), 2006 (low back), and 2011 (neck, shoulders, low back, and hip). He was
deemed permanently disabled in 2011.

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2012 to 2015, and (3) $55,040 in long-term disability benefits from his employer’s private
insurer. In 2016, father cashed out his $150,517 401k plan.
The district court awarded father the cabin and mother the home, subject to father’s
23% interest to be paid when the child finishes high school. The district court ordered
mother to pay 44% and father to pay 56% of the home mortgage, representing the ir
respective personal uses of the mortgage proceeds. The district court treated all of father’s
SSDI, workers’ compensation, and insurance payments as nonmarital property, but
awarded mother a $5,000 interest in father’s 401k funds. In a posttrial order, the district
court awarded mother a 5% marital interest in the SSDI payments.
Mother appeal ed the property division, a sserting that father failed to satisfy his
burden of proof on his nonmarital claims and the district court made erroneous factual
findings. Father appealed the physical-custody award, parenting time, and deferral of
mother’s payment for his nonmarital interest in the home until the child graduates from
high school.
D E C I S I O N
I. The district court did not abuse its discretion by granting sole physical custody
of the child to mother.

Our “ review of custody determinations is limited to whether the [district] court
abused its discretion by making findings unsupported by the evidence or by improperly
applying the law.” Kremer v. Kremer, 827 N.W.2d 454, 457 (Minn. App. 2013) (alteration
in original) (quotation omitted), review denied (Minn. Apr. 16, 2013). We view the record
“in the light most favorable to the district court’s findings,” affirming findings of fact

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unless they are clearly erroneous, and deferring to the district court’s credibility
determinations. Id. at 457-58.
In deciding custody of a child, district courts must focus on the child’s best interests
and consider 12 statutory factors. Minn. Stat. § 518.17, subd. 1(a) (2018). No single best-
interests factor is determinative; courts “ must weigh all statutory factors in the balance.”
Lemcke v. Lemcke, 623 N.W.2d 916, 920 (Minn. App. 2001), review denied (Minn. June
19, 2001).
It is undisputed that the district court considered all of the statutory best-interests
factors. But f ather argues that the court clearly erred by finding that five of the factors
favor mother. We disagree. Our careful review of the record reveals evide ntiary support
for the challenged findings as follows:
A. Effect of the proposed arrangements on the child’s needs and
development

The par ties’ testimony supports the district court’s finding that they are both
involved in raising the child. And the district court credited mother’s testimony that she
has been the child’s sole advocate at school regarding his special needs, and has arranged
his social activities. The parties agreed mother would remain in the family home, which
the district court properly found to be “the only home [the child] has known.”
B. The child’s special mental-health and educational needs
The district court found mother “better able and more inclined” to assist the child in
school and socialization. This finding is supported by mother’s testimony about bringing

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the child to socialization therapy, assisting him with homework, and helping him learn
computer skills.
C. History and nature of the parents’ provision of care for the child
Consistent with the parties’ testimony, the district court found that both par ents
contribute to the child’s care, but “[i]n terms of day to day care for the child [—]meals,
baths, homework[—][m]other is more involved than [f]ather,” who primarily interacts with
the child in “leisure time.” The district court found that mother prepares meals for the
child, bathes the child, and spends the evenings with the child . And mother testified that
she has been primarily responsible for taking the child to therapy, religious activities, and
Boy Scouts.
D. Willingness of the parties to provide ongoing care for the child
The district court credited mother’s testimony that she has been willing and able to
provide for the child’s ongoing care and father’s testimony that he is willing to do so.
Mother’s testimony is supported by her past actions; father’s testimony is more
aspirational. Prior to trial, father told mother he planned to move to Florida for six months
out of the year. On the first day of trial, he informed her that he had changed his mind, and
he testified that he planned to live close to the child’s school. But h e also testified to
spending a significant amount of the summer at the cabin. According to mother, father
gave her “different answers” every time they discussed where he planned to live.
E. Changes to home, school, and community
In weighing this factor in mother’s favor, the district court again noted that the home
has been the only place the child has ever lived and that the parties agreed it should be

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awarded to mother. The evidence supports the district court’s finding that “[t]he child’s
community is centered around the home, friends, school, church, and Boy Scouts.”
Overall, the evidence as to each of the five challenged factors supports the district
court’s findings and ultimate decision to place the child in mother’s sole physical custody.
Father’s arguments are largely based on his testimony, which the district court weighed
against mother’s testimony and other evidence in reaching its custody decision. And the
court chose to give greater weight to mother’s testimony . See Vangsness v. Vangsness ,
607 N.W.2d 468, 474 (Minn. App. 2000) (rejecting best -interests argument proffered by
spouse in custody dispute , recognizing that it is not the role of an appellate court to
reconcile conflicting evidence).
II. The district court did not abuse its discretion in determining parenting time.
Father asserts that the district court erred by awarding him less than the 25% a parent
is presumed to be entitled to under Minn. Stat. § 518.175, subd. 1(g) (2018) (providing for
the “rebuttable presumption that a parent is entitled to receive a minimum of 25 percent of
the parenting time for the child”). He argues that his allotment of overnights —two per
two-week period —is neither adequate nor in the child’s best interests . The purpose of
parenting time is to “enable the child and the parent to maintain a child to parent
relationship that will be in the best interests of the child.” Minn. Stat. § 518.175, subd. 1(a)
(2018).
Although father requested 75% of the parenting time, he did not invoke the 25%
presumption or cite Minn. Stat. § 518.175, subd. 1(g), even in connection with the posttrial
motions. Because father did not argue the statutory presumption in the district court, this

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issue is forfeited. See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988) (stating that
appellate court s consider only those issues presented to and considered by the district
court); Hagen v. Schirmers, 783 N.W.2d 212, 217 (Minn. App. 2010) (requiring “district
court[] to demonstrate an awareness and application of the 25% presumption when the
issue is appropriately raised and the court awards less than 25% parenting time” (emphasis
added)).
As to father’s other challenges to the adequacy and logistics of the parenting-time
arrangement, we are satisfied that the evidence supports the district court’s findings . The
number of parenting -time transitions reflect, in part, mother’s need to work and father’s
availability to care for the child before and after school. Father argues that he was awarded
only 14% of the parenting time based on overnights. Minn. Stat. § 518.175, subd. 1(g),
permits parenting time to be determined “by using a method other than overnights if the
parent has significant time periods on separate days when the child is in the parent’s
physical custody but does not stay overnight.” Using this calculation, father has more than
14% of the parenting time. In sum, t he district court’s supported findings on the child’s
needs and the care mother provides, support its best-interests determination. See Clark v.
Clark, 346 N.W.2d 383, 385 (Minn. App. 1 984) (“It is well established that the ultimate
question in all disputes over [parenting time] is what is in the best interest[s] of the child.”),
review denied (Minn. June 12, 1984).
III. The district court abused its discretion in dividing the parties’ property.
Minnesota law requires a “just and equitable” division of marital property. Minn.
Stat. § 518.58, subd. 1 (2018). A district court has broad discretion to divide marital

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property, which this court will not reverse “absent a clear abuse of d iscretion or an
erroneous application of the law.” Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn. App. 2005).
Marital property includes “property, real or personal, . . . acquired by the parties . . . during
the existence of the marriage.” Minn. Stat. § 518.003, subd. 3b (2018). Property acquired
during a marriage is presumed to be marital property. Id. Nonmarital property includes
real or personal property acquired before the marriage, or property that a spouse “acquire[s]
as a gift, bequest, devise or inheritance.” Id., subd. 3b(a), (b).
A party claiming property is nonmarital “ must produce demonstrable proof to
overcome the marital property presumption.” Erdahl v. Erdahl , 384 N. W.2d 566, 568
(Minn. App. 1986); see also Kottke v. Kottke , 353 N.W.2d 633, 636 (Minn. App. 1984)
(stating that the standard of proof is a preponderance of the evidence) , review denied
(Minn. Dec. 20, 1984). Whether property is marital or nonmarital is a legal question, which
we review de novo. Gill v. Gill, 919 N.W.2d 297, 301 (Minn. 2018). “But we defer to the
district court’s underlying findings of fact and do not set the findings aside unless they are
clearly erroneous.” Id.
Mother challenges three aspects of the property division, asserting that the district
court erroneously classified some property or improperly calculated father’s nonmarital
interest in property, including (1) portions of the SSDI, workers’ compensation, and
disability insurance payments, (2) the 401k plan, and (3) the home. Her arguments have
merit, and we address each in turn.
To the extent father’s SSDI, workers’ compensation, and disability insurance
payments reimbursed his wage loss during the marriage, they are part of the marital estate

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and must be divided equitably. See Walswick-Boutwell v. Boutwell , 663 N.W.2d 20, 22
(Minn. App. 2003) (“This court has consistently treated disability benefits as marital
property.”), review denied (Minn. Aug. 19, 2003); Hafner v. Hafner, 406 N.W.2d 590, 593
(Minn. App. 1987) (referring to wage loss as marital and compensation for loss of good
health as nonmarital) . By contrast, compensation for personal injuries is nonmarital in
nature because it represents “ injuries personal to a spouse.” Ward v. Ward, 453 N.W.2d
729, 732 (Minn. App. 1990) (designating as nonmarital spouse’s workers’ compensation
recovery for “[p]ain and suffering, disability, and loss of the ability to lead a normal healthy
life”), review denied (Minn. June 6, 1990).
The district court treated the SSDI payments as 95% nonmarital, despite the fact
that they represented wage loss father incurred during the marriage. In the dissolution
judgment, the district court noted that father had not signed a release that categorized the
payments as relating to wage loss or personal injuries, making it “impossible to know
whether and in what amount these sums represent wage loss.” And in its posttrial order,
the district court sta ted that “there is no evidence . . . suggesting that SSDI is meant to
replace lost wages only.” These statements suggest legal error or insufficient evidence.
Likewise, father offered no evidence concerning the nature of the workers’ compensation
and insurance disability benefits he received during the marriage. Accordingly, there is no
record support for characterizing any portion of those proceeds as nonmarital.
There is a similar lack of record support for the district court’s treatment of father’s
401k proceeds. Father cashed out his plan for $150,517 in January 2016. Mother testified
that the account was worth $120,000 at the time of the marriage. Father testified that the

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account was worth $144,478, but his supporting documentation was from July 2010—two
years after the marriage. Acknowledging that the parties’ evidence left it unable to
“determine precise amounts,” the district court awarded mother a $5,000 interest for the
“modest increase” in the plan between 2008 and 201 6. This conclusion is not supported
by the evidence and ignores the statutory presumption that this is marital property . And
because father used some of the funds to acquire the cabin, vehicles, and other property ,
the district court’s error in designating these assets as nonmarital affects other aspects of
the property division.
Perhaps the most evident errors are those associated with the parties’ home. Mother
purchased the home in 2004 for $237,653, investing $1 47,653 of her own funds . The
parties offered no evidence as to the home’s value at the time of the marriage , but the
parties stipulated that the home was worth $280,000 at the time of the dissolution. Despite
the dearth of evidence to support a finding o n the increase in the home’s value during the
marriage, the district court made marital and nonmarital awards that equaled $328,000 ,2
which exceed the home’s stipulated value. Mother also points out that the district court
did not apply the formula for ap portioning marital and nonmarital interests in the
homestead property set forth in Schmitz v. Schmitz, 309 N.W.2d 748, 749-50 (Minn. 1981).
But the court cannot be faulted for failing to apply this formula when the parties did not
submit the requisite evidence to support its application. See Eisenschenk v. Eisenschenk,

2 The district court found mother’s nonmarital interest in the home to be $218,400, father’s
nonmarital interest to be $20,000, and their marital interest to be $89,600. The sum of
these figures is $328,000.

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668 N.W.2d 235, 243 (Minn. App. 2003) (“On appeal, a party cannot complain about a
district court’s failure to rule in her favor when one of the reasons it did not do so is because
that party failed to provide the district court with the evidence that would allow the district
court to fully address the question.”).
While we acknowledge the challenge the district court faced in identifying and
equitably dividing the parties’ marital proper ty, on this record, a remand is necessary on
all aspects of the property division . On remand, the parties should submit the evidence
needed to determine the marital and nonmarital interests in all of the parties’ property.
Affirmed in part, reversed in part, and remanded.