In re the Marriage of:

This opinion will be unpublished and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
A18-2007

In re the Marriage of:

Peder Kristian Rogich, petitioner,
Appellant,

vs.

Denise Lynn Rogich,
Respondent.

Filed January 13, 2020
Reversed and remanded
Rodenberg, Judge

Hennepin County District Court
File No. 27-FA-16-443

R o d n e y H . J e n s e n , M a r k E . M u l l e n , J ensen, Mullen, McSweeney & Meyer, PLLP,
Bloomington, Minnesota (for appellant)

Becky Toevs Rooney, Minneapolis, Minnesota; and

Edward F. Rooney, Minneapolis, Minnesota (for respondent)

Considered and decided by Rodenber g, Presiding Judge; Ross, Judge; and
Klaphake, Judge.
*

* Retired judge of the Minnesota Court of Ap peals, 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
RODENBERG, Judge
Appellant-husband Peder R ogich appeals from a supplemental judgment and decree
of dissolution, arguing that the district cour t erred by determining that husband does not
need spousal maintenance, failed to make adequate factual findings concerning the parties’
reasonable budgets, and erred by dividing the Kelly Lake property titled in husband’s name
as marital property. We re mand to the district court for amended findings concerning
spousal maintenance and reverse and remand for a new trial limited to the Kelly Lake
property issue.
FACTS
Husband and respondent-wife Denise Rogich were married in 2002. They have
three minor children. Husband petitioned for dissolution of the marriage in 2016.
During pretrial-motion hearings, the di strict court found that husband was
unemployed and that wife worked as a pharm acist and earned about $135,000 per year.
The district court ordered wife to pay husb and $3,750 per month in combined temporary
child support and temporary spousal maintenance. Wife later moved the district court to
reconsider its award of temporary spousal maintenance because husband became gainfully
employed. The district court denied the motion.
At trial, husband testified that he was a stay-at-home parent for 12 years after the
birth of the parties’ first child. Husband reentered the workforce after this action was
commenced, but before the trial. He requested at trial that the district court award him
spousal maintenance.

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The district court found after trial th at husband was employed as a maintenance
technician and earned gross income of $4 8,880 per year. Wife was employed as a
pharmacist and earned gross income of $135,907 per year.
The district court considered monthly budgets proposed by each party and what wife
thought to be a reason able monthly budget for husband. The district court found that
husband’s claimed reasonable expenses were “inflated” and “unreasonable” based on the
standard of living established during the parties’ marriage. It made no specific finding of
either party’s reasonable monthly expenses.
The district court found that husband cred ibly testified concerning his ability to
irregularly receive overtime and “chemical pay.” 1 It considered husband’s overtime and
chemical pay “too speculative” to be consider ed in calculating his income for spousal-
maintenance purposes. The district court later found husband’s income, including overtime
and chemical pay, adequate to meet his m onthly expenses and dete rmined that husband
was not entitled to further spousal maintenance.
Husband claimed at trial that his childh ood home, the Kelly Lake property, was his
nonmarital property. In June 2004, husband’s mother transferred the Kelly Lake property
to husband by way of a handwr itten quitclaim deed. Although the parties were married
when the quitclaim deed was executed, wife was not an identified grantee.
Husband’s argument at trial was that the Ke lly Lake property was gifted to him by
his mother. Husband explained that he gave his mother money at some point, but he

1 “Chemical pay” is pay that husband receives for working on machines that are associated
with hazardous chemicals.

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testified that any money he gave his mother was not given in exchange for the Kelly Lake
property. The quitclaim deed shows husband’s mother transferred the Kelly Lake property
to husband and deed tax was paid in the amount of $1.65, which amount the parties agree
indicates that consideration for the deed was less than $500.
Wife testified and argued at trial that the Kelly Lake property was purchased from
husband’s mother during the marriage using $20, 000 of martial funds. Wife stated that
husband had asked her to consider purchas ing the Kelly Lake property on multiple
occasions, but that she told husband that she did not want to buy the property. Wife
testified that she later realized that $20,00 0 was missing from the parties’ joint checking
account. Wife testified that she asked husband about the missing money, and that he told
her that he had paid his mother to purchase th e Kelly Lake property. Wife testified that
husband and his mother arrived at the $20, 000 purchase price because husband’s mother
wanted to leave each of her children a $2,000 inheritance. Husband has ten siblings.
Husband countered wife’s te stimony by explaining that his mother did want to give
a monetary gift to each of her children, but denied that he made a lump sum payment of
$20,000 to his mother.
Wife referred at trial to an email sent by husband’s counsel, labeled as being “[f]or
[s]ettlement [p]urposes [o]nly.” The email stated that husband and wife did gift husband’s
mother $20,000, but not as payment for the Kelly Lake property. The email further states
that the word “gift” was written on the $20,000 check. Subsequently, in the same chain of
emails between counsel for the parties, husband’s counsel indicated that husband was still

5
looking for the $20,000 check. The district court foun d this email to be compelling
evidence in support of wife’s position and admitted it into evidence.
Neither party produced bank records fro m the time period during which the $20,000
was allegedly withdrawn from the parties’ jo int checking account or the alleged $20,000
check supposedly with the notation “gift.” Husband tes tified as follows concerning the
claimed payment to his mother:
WIFE’S COUNSEL: So you de ny paying $20,000 in marital
funds to your mother.
HUSBAND: A $20,000 check, yes.
WIFE’S COUNSEL: No. Th e question was you denied
paying $20,000 to your mother, as described in counsel’s email
to me that is Exhibit 145.
HUSBAND: Yes. I don’t believe there was even 20,000.

The district court allowed wife to testif y, over husband’s objection, concerning a
conversation wife had with husband’s mother about the Kelly Lake property. The district
court later concluded in its posttrial order that it would not consider that testimony
concerning a conversation with husband’s mother because there was “other, more reliable,
evidence” in the record to support wife’s argument that the Kelly Lake property is not
husband’s nonmarital property.
After wife’s testimony about the convers ation with husband’s mother, husband
attempted to call rebuttal witnesses to testif y concerning the transfer of the Kelly Lake
property. The district court did not allow husband to call these rebuttal witnesses because
they had not been disclosed until the morning before the last day of trial.
The district court ultimately found wife mo re credible than husband concerning the
Kelly Lake property transfer. The district court further drew unfavorable inferences from

6
husband’s not having produced a copy of the $20,000 check that—according to the email
between counsel—contained the notation “gift.”
The district court found the Kelly Lake pr operty to be marital property and divided
the marital property accordingly.
After trial, husband moved for amended findin gs of fact or, in the alternative, for a
new trial. The district court denied husband’s motion for a new trial, but did correct some
errors in its original findings. The district court did not amend either the denial of spousal
maintenance to husband or its determination that the Kelly Lake property is marital
property.
This appeal followed.
D E C I S I O N
The district court’s findings are insuffi cient to review the denial of spousal
maintenance to husband.

Husband argues that the district court abused its discretion by not awarding him
spousal maintenance from wife and contends that the district court did not make the
necessary findings concerning the parties’ net incomes or reasonable monthly expenses.
A district court has broad discretion in deciding whether to award spousal
maintenance. Melius v. Melius, 765 N.W.2d 411, 414 (Minn. App. 2009). We review a
district court’s spousal-maintenance determination for an abuse of discretion. Id. A district
court abuses its discretion concerning mainte nance if findings of fact are unsupported by
the record or if it impr operly applies the law. Dobrin v. Dobrin , 569 N.W.2d 199, 202
(Minn. 1997) (citing Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)). “[B]efore an

7
appellate court determines that there has been a clear abuse of . . . discretion, it must
determine that there must be a clearly errone ous conclusion that is against logic and the
facts on [the] record.” Id. We review de novo questi ons of law concerning spousal
maintenance. Van de Loo v. Van de Loo, 346 N.W.2d 173, 175 (Minn. App. 1984).
Reasonable Monthly Expenses
Husband and wife each submitted proposed budgets to the district court. Husband
indicated that his monthly expenses were $6,537, which included $2,231 which the district
court found to be “attributable to the children.” Wife s ubmitted a proposed budget for
husband, suggesting that husband’s reasonabl e monthly expenses were but $4,371.86.
Wife indicated that her monthly expenses were $5,770.16.
The district court listed in its findings of fact the portions of husband’s claimed
monthly budget that wife challenged, and agreed with wife that husband’s expenses were
“inflated” and “unreasonable” based on the standard of living established during the
parties’ marriage.
The district court made no express finding of either party’s reasonable monthly
expenses.
Income
In its child-support determination, the dist rict court found that wife earned gross
income of $135,907 per year ($11,325 per month) from her job as a pharmacist, and that
husband earned gross income of $48,880 per year ($4,073 per mont h) from his job as a
maintenance technician.

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The district court made separate findings concerning the parties’ incomes in its
analysis of husband’s spousal-maintenance clai m. Although the district court concluded
that husband’s overtime and chemical pay we re “too speculative” to consider for child-
support purposes, it also found as a fact that husband’s “bas e salary and opportunity for
overtime and ‘chemical pay’ is adequate to meet his reasonable needs.” The district court
made no finding concerning the amount of overtime and chemical pay husband could
reasonably earn.
“In order to determine ability to pay [spousal maintenance], the court must make a
determination of the payor spou se’s net or take-home pay.” Kostelnik v. Kostelnik , 367
N.W.2d 665, 670 (Minn. App. 1985)
Husband’s income as determined by the district court for child-support purposes is
less than husband’s claimed reasonable monthly expenses. It is also less than wife’s
proposed monthly budget of husband’s reasona ble expenses. Adding in the $1,148 in
monthly child support ordered to be paid to husband, his monthly household income would
be $5,221, which is s till less than husband’s cl aimed monthly expenses. 2 Although the
district court did not accept as reasonable a ll of husband’s claime d expenses, it did not
make an explicit finding of his reasonable monthly needs. There is no finding by the

2 As discussed above, the district court f ound that husband’s clai med monthly expenses
“include[] $2,231 attributable to” the childre n. Excluding both ch ild support and these
expenses attributable to the children leaves husband’s monthly income insufficient to meet
his claimed or attributed needs. The same is true if both child support and the expenses
attributable to the children are included.

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district court of a reasonable monthly budget consistent with the standard of living during
the marriage of $5,221 or less for husband.
Moreover, it is unclear whether and how th e district court considered husband’s
ability to get overtime and chemical pay when it determined that he did not need spousal
maintenance. The district court initially found the possibility of husband receiving
overtime and chemical pay “too speculative” to consider. But in denying husband spousal
maintenance, it explained that husband is ab le to meet his reasonable needs based on his
base salary coupled with his “opportunity” for overtime and chemical pay. But here again,
the district court made no finding concer ning how much overtime and chemical pay
husband can reasonably earn.
Because the district court made no express findings concerning either the reasonable
monthly expenses of the parties or their respective net incomes, we are unable to properly
review whether the district court abused its discretion by denying husband temporary
spousal maintenance. See Stich v. Stich , 435 N.W.2d 52, 53 (Minn. 1989) (holding a
district court’s findings insufficient where the district court made findings concerning the
parties’ incomes, but not concerning their separate expenses).3

3 We do note, but do not rely on as precedent, our opinion in Hammond v. Buchanan, No.
A18-1623, 2019 WL 5304175, at *2-3 (Minn. App. Oct. 21, 2019) (concluding that we
could not “adequately review the district court’s decision not to modify the spousal-
maintenance award” where the district c ourt did not make findings concerning the
reasonableness of respondent’s budget). Unpublished opinions are not binding authority,
but they may have persuasive value. Dynamic Air, Inc. v. Bloch , 502 N.W.2d 796, 800
(Minn. App. 1993).

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The district court’s findings are insufficient to allow review the denial of an award
of spousal maintenance to husband. We therefore remand for amended findings concerning
the spousal-maintenance issue.
The district court committed trial errors requ iring both reversal of its classification
of the Kelly Lake property as marital property and a remand for a new trial.

Husband argues that the district court e rred by classifying the Kelly Lake property
as marital property because he was separate ly gifted that property by his now-deceased
mother. Wife argues that the Kelly Lake property is marital and that it was not a gift from
husband’s mother, and that, instead, husband pa id his mother $20,000 of marital funds to
purchase the Kelly Lake property.
A district court’s classification of property as marital or nonmarital is a question of
law which appellate courts review de novo. Antone v. Antone, 645 N.W.2d 96, 100 (Minn.
2002). But an appellate court will “defer to the district court’s underlying findings of fact
and [will] not set the findings aside un less they are clearly erroneous.” Gill v. Gill, 919
N.W.2d 297, 301 (Minn. 2018). District cour ts have “broad discre tion in evaluating and
dividing property in a martial dissolution and will not be overturned except for [an] abuse
of discretion.” Antone, 645 N.W.2d at 100. A district court abuses its discretion in dividing
property if it resolves the matter in a manner “that is against logic and facts on the record.”
Rutten v. Rutten , 347 N.W.2d 47, 50 (Minn. 1984). We defer to the district court’s
determinations of credibility. Svoboda v. Svoboda , 376 N.W.2d 755, 757 (Minn. App.
1985).

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Property acquired by a spouse during a marriage is presumed to be marital property.
Minn. Stat. § 518.003, subd. 3b (2018). This presumption applies “regardless of whether
title is held individually or by the sp ouses in a form of co-ownership.” Id. “ T h e
presumption of marital property is overcome by a showing that the property is nonmarital
property.” Id.
Nonmarital property, in relevant part, is property “acquired by either spouse before,
during or after the existence of their marriage, which . . . is acquired as a gift, bequest,
devise or inheritance made by a third party to one but not to the other spouse.” Minn. Stat.
§ 518.003, subd. 3b(a). “The burden of estab lishing the nonmarital character of an asset
acquired during the marriage is on the party claiming the property as nonmarital.”
Dorweiler v. Dorweiler, 413 N.W.2d 572, 575 (Minn. Ap p. 1987). “The most important
factor in determining whether a gift is mari tal or nonmarital is the donor’s intent.” Olsen
v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997). A donor’s intent “is demonstrated by the
surrounding circumstances, including the form of the transfer.” Id.
The district court found wife’s testim ony about the Kelly Lake property more
credible than husband’s testimony. It found the Kelly Lake property to be marital property,
valued at $42,800.
The district court’s findings concerni ng the Kelly Lake property are both
unsupported by the record and rely on evidence erroneously admitted at trial.
Finding 71 of the district court’s origin al and amended judgments and decrees of
dissolution states, “[Husband] te stified that he gifted $20,00 0 to his mother before her
passing so that she could leave an inheritance to his ten siblings.” We are unable to find

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any place in the trial transcript where husband testified to that effect. Husband’s denial of
having paid his mother $20,000 by check seems perhaps to have been coy, but he did not
admit to giving his mother a $20,000 check. And he testified that any money he gave to
his mother amounted to less than $20,000.
The only place in the record where this portion of finding 71 finds any support is in
an email sent by husband’s counsel to wife’s counsel. The district court characterized the
email as a response to an informal discovery request. The email expressly identifies its
purpose as being “For Settlement Purposes Only.”
Minnesota Rule of Evidence 408 prohibits admission of “[e]vidence of conduct or
statements made in compromise negotiations” as proof of “liability for or invalidity of the
claim or its amount.” “Evidence violates the rule when it (1) constitutes a compromise or
an offer to compromise a claim that is disputed as to either validity or amount, (2) is offered
to prove liability, and (3) is not offered for another legitimate purpose.” In re Buckmaster,
755 N.W.2d 570, 577 (Minn. App. 2008). Rule 408 is an exclusionary rule, meaning “if a
statement violates the rule, a trial court does not have discre tion to admit the statement.”
C.J. Duffey Paper Co. v. Reger, 588 N.W.2d 519, 524 (Minn. App. 1999).
Although the email in question did convey information about the existence of a
check with the note “gift, ” the email was expressly purposed as a “settlement”
communication. At trial, husband’s counse l argued that the email should be excluded
under rule 408 because he “h eaded the email for settlement purposes only.” Husband’s
counsel alternatively argued th at the email should be excluded as he arsay. Husband’s
counsel also informed the dist rict court that the email, wh ich was sent about ten months

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before trial, contained errors and incorrect information. Noneth eless, the email was
admitted into evidence and cited by the district court in its Kelly Lake property findings as
“compelling evidence in support of [wife]’s position.”
On this record, the admissi on of the email into evidence was error. The email is the
only evidence of husband having claimed th e existence of a $20,000 check with the
notation “gift.” That communication was e xpressly purposed for settlement and was a
statement by counsel who had no personal know ledge of the existence of the check (and
who may have misunderstood what husband had told him). The district court’s error in
admitting this email into ev idence leaves finding 71 withou t support in the evidence
properly admitted at trial.
The district court faulted husband for no t producing at tria l the $20,000 check
referenced in the email from hi s counsel. Wife claimed at trial that the check was from
their joint account. It appears from the record that either party could have produced a copy
of any check written on that account. With out the improperly ad mitted email, husband
cannot be faulted for not having produced any bank records relating to the alleged $20,000
payment to his mother.
Moreover, and even if $20,000 was paid to appellant’s mother in exchange for the
Kelly Lake property, the record seems to us to suggest that the property might still be partly
nonmarital. Husband has ten siblings. Wife’s evidence at trial was that the amount paid
in exchange for the property was $20,000, so that each of husband’s ten siblings would get
$2,000 by way of an inheritance from their mother. This at least suggests that, at the time

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of the deed, the Kelly Lake property may have had a value of $22,000.4 And the record at
trial is sparse regarding the true value of the Kelly Lake property at the time of the transfer
in 2014. The district court did not determin e whether, even if $20, 000 was paid for the
Kelly Lake property, some value over that amount was a gift to husband.
We also see trial error in the district c ourt having allowed wife to testify, over
husband’s objection, concerning a conversa tion that wife had with husband’s now-
deceased mother concerning the Kelly Lake pr operty transfer, but having then denied
husband the opportunity to meet that testimony by similar testimony he sought to present.
The district court allowed wife’s testimony as rebuttal to husband’s statements about
his mother’s wishes. But the district court did not allow husband to call his sister and
brother-in-law as rebuttal witnesses to testif y concerning the transfer of the Kelly Lake
property and the sale of other land from wh ich husband’s mother supposedly received
money that she distributed to her children. The district court base d its refusal to allow
husband to call these rebuttal witnesses on hus band having known that the Kelly Lake
property was going to be a contested issue at trial, and having failed to timely disclose the
rebuttal witnesses. However, husband’s rebu ttal witnesses were only necessary after the
district court allowed wife’s testimony c oncerning her conversation with husband’s
deceased mother.

4 $20,000 would give each of husband’s siblings $2,000, but then his mother presumably
intended that husband would re ceive some gift—perhaps $2, 000 or perhaps some other
amount.

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“[A]n appellant will not always know what testimony he will present on rebuttal,
and he need not anticipate what rebuttal witnesses might testify to and disclose all possible
rebuttal testimony . . . .” Whitney v. Buttrick, 376 N.W.2d 274, 278 (Minn. App. 1985).
The district court, “in light of the totality of the evidence provided,” explained in its
findings of fact that it would not consider wife’s conversation with husband’s mother when
deciding the Kelly Lake property issue. But combined with the erroneous admission of the
email from counsel, the district court’s erroneous exclusion of husband’s rebuttal witnesses
leaves the record inadequate for the conclusion that the entirety of the Kelly Lake property
is marital property.
The district court’s erroneous finding 71, its allowing into evidence the settlement
email between counsel for the parties, and its allowing wife to testify concerning her
conversation with husband’s mother while prohibiting husband from calling rebuttal
witnesses require that we reverse the distri ct court’s conclusion that the Kelly Lake
property is marital property and remand for a new trial on that issue.
In sum, we remand for amended findings concerning husband’s spousal-
maintenance claim and we reverse the district court’s determination concerning the Kelly
Lake property and remand for a new trial on that issue.
Reversed and remanded.