In re the Marriage of: Aaron Di Luong, 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This opinion will be unpublished and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
A18-2150

In re the Marriage of: Aaron Di Luong, petitioner,
Appellant,

vs.

Julie Ho,
Respondent.

Filed October 14, 2019
Affirmed in part, reversed in part, and remanded
Ross, Judge
Concurring in part, dissenting in part, Reilly, Judge

Hennepin County District Court
File No. 27-FA-18-1044

Mark Gray, Minneapolis, Minnesota (for appellant)

J. Lee Novelli, Novelli Law Office, P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Johnson , Judge; and Reilly ,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
The district court dissolved Julie Ho and Aaron Di Luong’s marriage, awarded Ho
permanent spousal maintenance, classified one of Ho’s retirement account s as her
nonmarital property , and required Di Luong to pay Ho’s need-based attorney fees. Di
Luong appeals the spousal-maintenance award, the retirement-account classification, and
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the attorney-fee award. Because the evidence of Ho’s disability , Di Luong’s income ,
and the circumstances of Ho’s retirement account support the district court’s
spousal-maintenance and property-classification decisions, we affirm in part. But because
the district court misapplied the law by concluding that Di Luong had the means to pay
Ho’s attorney fees, we reverse the attorney-fee award and remand for consideration of Ho’s
conduct-based attorney-fee argument.
FACTS
Aaron Di Luong and Julie Ho divorced in 2018, ending their 19-year marriage. Ho
had been the primary income earner until 2016 when medical conditions prevented her
from working. Di Luong gambled excessively throughout the marriage, and after they
separated he withdrew at least $39,70 0 from checking and savings accounts before filing
for bankruptcy.
Di Luong and Ho presented financial evidence in the dissolution trial . Ho was
unemployed and re presented that her monthly expenses totaled $3,934, $2,946 of which
the district court found reasonable. Di Luong represented that his monthly expenses totaled
$1,720, an amount the district court found reasonable but reduced to $1,370 because he
received $350 monthly from his mother to help him pay for food and meet his credit -card
payment obligations. It also found that Di L uong netted $3,271 in monthly income from
part-time and full-time employment. The district court ordered Di L uong to pay $973 in
monthly child support plus a $75 monthly medical-assistance reimbursement, and it found
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that this left him a monthly $889 surplus from which the district court could consider Ho’s
request for spousal maintenance.1
The district court determined that Ho should receive spousal maintenance and
decided that Di Luong should share in Ho’s hardship, as he would have if the marriage had
continued. It ordered him to pay her $1,300 monthly in permanent spousal maintenance.
This arrangement left each party with a monthly budget deficit: Di Luong’s was about $400
and Ho’s about $1,650.
The district court divided the marital estate, which consisted mainly of the marital
home and the parties’ bank and retirement accounts. It found that one of Ho’s retirement
accounts, which she opened and contributed to entirely before the parties’ marriage , was
her nonmarital property. The district court awarded Ho the marital home , divided the
parties’ interests in their marital accounts (including one of Ho’s retirement accounts), and
ordered Ho to pay Di Luong two equalizers totaling over $130,000 to offset the value of
marital assets that she retained. But out of concern that Di Luong’s preexisting arrears and
gambling propensities might interfere with his making timely child-support payments, it
ordered that her equalizer payment was not due “until Mr. Di Luong no longer has a
child-support obligation.”
Ho moved the district court to order Di Luong to pay need-based and conduct-based
attorney fees. Neither party had cash or income that could cover the fees. The district court

1 We observe that the district court’s calculations would apparently yield a surplus of $853,
not $889, based on the numbers it considered. Di Luong does not challenge this finding.
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granted the motion by deducting the approximately $24,450 in accrued fees from Ho’s
equalizer obligation.
Di Luong appeals.
D E C I S I O N
Di Luong challenges three aspects of the judgment and decree. He asks us to hold
that the district court erred by award ing Ho permanent spousal maintenance , classifying
one of Ho’s retirement account s as her nonmarital property , and essentially reducing Di
Luong’s property award to cover Ho’s attorney fees.
I
Di Luong ’s argument contest ing Ho’s spousal- maintenance award does not
lead us to reverse. We review the district court’s factual findings un derlying a
spousal-maintenance award for clear error, its determination of an award’s amount and
duration for an abuse of discretion, and its legal conclusions de novo. Maiers v. Maiers,
775 N.W.2d 666, 668 (Minn. App. 2009). The district court may order spousal maintenance
if it finds that the spouse requesting it lacks sufficient means to provide for her reasonable
needs or is unable to provide adequate self-support. Minn. Stat. § 518.552, subd. 1(a)–(b)
(2018). If the movant proves need, the district court must then consider various factors to
determine the amount and duration of maintenance. Id ., subd. 2 (2018). Based implicitly
on one of those factors—an obligor’s ability to meet his own needs “while meeting those
of the spouse seeking maintenance ,” id., subd. 2(g)—Di Luong contends that the record
lacks evidence that he had the ability to pay $1,300 monthly in spousal maintenance.
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It is true that the district court’s maintenance order leaves Di Luong with a shortfall.
But district courts have broad discretion in deciding how much spousal maintenance to
award. Reinke v. Reinke , 464 N.W.2d 513, 514 (Minn. App. 1990). Although a district
court might in most circumstances act within its discretion by treating an inability to pay
as a bright line capping a maintenance award, the statute requires only that the district court
“consider” the obligor’s ability to pay, along with other factors. And we are bound by our
precedent that holds that a maintenance award that leaves the obligor with a deficit does
not by itself reflect an abuse of discretion. See Ganyo v. Engen , 446 N.W.2d 683, 687
(Minn. App. 1989). That the award leaves Di Luong with a deficit is therefore not alone a
basis to reverse.
Di Luong emphasizes that the award “leaves [him] with about 42% of his income
after paying child support” while leaving Ho “with about 58% ,” and he argues that this is
fundamentally unfair. But the arrangement results from the district court’s findings of the
parties’ respective reasonable monthly expenses and their incomes. See Giesner v. Giesner,
319 N.W.2d 718, 720 (Minn. 1982) (recognizing district court’s discretion to assign a
maintenance amount that essentially leaves divorced pa rties to share financial hardship).
Aside from asking rhetorically, “How could the reasonable monthly living expenses of one
party to a marriage be $1,370 while the other party’s monthly living expenses were more
than double that? ”, Di Lu ong never challeng es as clearly erroneous the district court’s
findings as to Ho’s expenses. Indeed, Di Lu ong expressly observes that the district court
explained in detail exactly how it pared down Ho’s claimed expenses to the $2,946 that it
found reasonable. Di Luong argues instead, oddly, that we should reverse because “[t]he
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district court failed to issue ‘ sufficiently detailed ’ findings regarding [his ] expenses .”
(Emphasis added.) The argument ignores the fact that the district court determined Di
Luong’s expenses simply by accepting as reasonable the precise expense amount that he
claimed for himself and reduced it only by the outside support he received from his mother.
We leave the expense findings intact because the district court had no duty to explain
to Di Luong why it was accepting as reasonable the expenses that he claimed for himself,
and Di Luong does not identify any finding of Ho’s e xpenses that we should rev erse for
clear error. The district court decided that the parties should share the pain of the combined
income-to-expense deficit, leaving Ho with the substantially larger burden. Given the
district court’s broad discretion and the unique circumstances of this case, we see no abuse
of discretion in that approach.
Di Luong argues that the district court clearly erred by finding that Ho is disabled
and unable to work for the foreseeable future . The district court should not award
maintenance without considering the “ physical and emotional condition of the spouse
seeking maintenance .” Minn. Stat. § 518.552, subd. 2 (2018). We will reject a fact ual
finding as clearly erroneous if reasonable evidence does not support it and we are left with
a definite and firm conviction that the finding is a mistake. Rasmussen v. Two Harbors
Fish Co., 832 N.W.2d 790, 797 (Minn. 2013). The evidence supports the finding. It was
undisputed that Ho had stopped working during the marriage because of a medical
condition. The district court considered a recent letter from Ho’s physician saying that she
and other specialists had been treating Ho since 2013 for neurological, gastrointestinal, and
muscular problems that “have hindered her ability to return to work ,” and treatment was
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ongoing. The district court credited Ho’s extensive testimony about her “current health
problems,” including neck pain, tension headaches, paresthesia, sensory disturbances,
gastrointestinal issues, stomach pain, and “some multilevel degenerative disc disease.” It
also considered her testimony about her “inability to sit for long periods at a computer due
to her neck pain and paresthesia[].” The evidence reasonably supports the district court’s
finding about Ho’s current physical and mental condition as applied to her ability to work,
and Di Luong identifies no evidence tending to contradict the finding.
Di Luong argues convincingly that the district court improperly considered Ho ’s
future inability to contribute to a retirement fund. When deciding whether to award
maintenance, the district court must consider “the loss of earnings, seniority, retireme nt
benefits, and other employment opportunities foregone by the spouse seeking spousal
maintenance.” Minn. Stat. § 518.552, subd. 2(e). Ho’s future inability to save for retirement
due to her inability to work is not a “foregone” opportunity that she sacrificed for the sake
of the marriage . But the error in the district court’s assessment on this factor does not
support reversing because it does not affect the outcome. See Minn. R. Civ. P. 61 (“The
court at every stage of the proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.”) . The district court’s
spousal-maintenance award is sufficiently supported otherwise, and its discussion leaves
us certain that this factor had little bearing on the decision. Remanding for reconsideration
would not change the result.
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II
Di Luong argues that the district court erred by classifying Ho’s AXA retirement
account as her nonmarital property. We review de novo whether property is marital or
nonmarital, but we defer to the district court’s findings of fact about how the parties
acquired assets, reviewing them for clear error. Swick v. Swick , 467 N.W.2d 328, 330
(Minn. App. 1991), review denied (Minn. May 16, 1991). We see no err or in the district
court’s findings or its legal conclusion.
We reject Di Luong’s suggestion that Ho failed to prove that her retirement account
was nonmarital property. Although property acquired during the marriage is presumptively
marital, property acquired before the marriage is nonmarital along with its increased value.
Minn. Stat. § 518.003, subd. 3b (2018). Ho testified that she opened and contributed to the
account only before the marriage. “A nonmarital interest in property may be established on
the basis of credible testimony.” Kerr v. Kerr , 770 N.W.2d 567, 570 (Minn. App. 2009).
Di Luong offered no competing evidence. He implies that Ho should have been required
to prove that the account g enerated no income and that the district court should have
discussed whether it paid dividends. But Di Luong cites no evidence contradicting Ho’s
testimony or showing that the account generated income. We affirm the district court’s
conclusion that the retirement account is Ho’s nonmarital property.
III
We are persuaded by Di Luong’s argument that the district court did not justify
ordering him to pay Ho’s attorney fees. We review the district court’s attorney -fee award
for an abuse of discretion. Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999).
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Di Luong argues that the district court clearly erred by finding that he had the ability
to pay Ho’s attorney fees. The district court “shall” award need-based attorney fees only if
it finds, among other things, that the party from whom the fees are sought has “the means
to pay them” and conversely that the party seeking fees “does not have the means to pay
them.” Minn. Stat. § 518.14, subd. 1(2) –(3) (2018). We believe that the fee award here
resulted from an irreconcilable application of the controlling phrase, “the means to pay.”
The district court should have followed the “natural presumption that identical
words used in different parts of the same act are intended to have the same meaning,”
unless there is some variation in usage that reasonably suggests that the words have
different meanings. Langston v. Wilson McShane Corp. , 776 N.W.2d 684, 690 (Minn.
2009) (quoting Atl. Cleaners & Dyers, Inc. v. United States , 286 U.S. 427, 433, 52 S. Ct.
607, 609 (1932)). We need not define “means to pay” to resolve this appeal; we need only
conclude, as the context of the statute compels us to conclude, that the term “means to pay”
carries the same meaning when applied to the obligor and the obligee alike.
But t he district court did not apply the same meaning of the “ means to pay”
triggering qualifier. The district court’s calculation of income and expenses, including
spousal maintenance and child support, resulted in each party being left with a substantial
monthly deficit. The mutual deficits therefore rendered both parties unable to pay attorney
fees from income. The only source remaining for either party to pay the fees was their
marital property. In other words, either each party had the “mean s to pay” based on the
value of the equal division of marital property or neither party had the “means to pay”
because expenses exceeded income. They were identically situated regarding their means
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to pay. The only way the district court could have found that Di L uong, but not Ho, ha d
the means to pay was by applying a different meaning of “means to pay” to each party.
The district court implicitly did so. It reasoned that, because Di Luong would receive
cash equalizer payments from Ho, Di Luong had the means to pay while Ho did not . But
the equalizer payments are simply the marital property to which Di Luong is entitled so as
to offset the value of marital property to which Ho is entitled. By deeming Di Luong as
having the “means to pay” the fees based on his right to the equalizer payments that Ho
must eventually make from her retirement account , the district court overlooked the fact
that Ho and Di Luong will have the same means to pay the same amount at that same time
from the same source . The district court did not explain why Di Luong’s share of the
property division afforded him the means to pay but Ho’s equal share did not afford her
the means to pay. We conclude that either both parties had the means to pay or neither
party had the means to pay. In either case, as a matter of law the statute did not authorize
the district court to order need-based attorney fees. We reverse on this issue.
Because the district court decided Ho’s attorney-fee request based on her need and
not her alternative theory that Di Luong’s conduct justified the attorney-fee award, it chose
not to address Ho’s conduct -based theory. See Minn. Stat. § 518.14, subd. 1 (authorizing
fee award “against a party who unreasonably contributes to the length o r expense of the
proceeding”). In reversing the need-based fee award, we therefore instruct the district court
on remand to address Ho’s conduct-based argument for attorney fees.
Affirmed in part, reversed in part, and remanded.

C/D-1
REILLY, Judge (concurring in part, dissenting in part)
I concur with the opinion of the court that the district court did not err by awarding
Ho permanent spousal maintenance and by classifying one of Ho’s retirement accounts as
her nonmarital property. However, I respectfully dissent from the majority’s holding that
the district court abused its discretion by ordering Di Luong to pay Ho’s attorney fees.
Because our standard of review is whether the district court abused its discretio n in its
attorney-fee award, and because the district court properly applied the statutory elements
to findings supported by the record, I would affirm.
In a marriage -dissolution action, a district court “shall award attorney fees, costs,
and disbursements in an amount necessary to enable a party to carry on or contest the
proceeding,” provided that the district court finds:
(1) that the fees are necessary for the good faith assertion
of the party’s rights in the proceeding and will not contribute
unnecessarily to the length and expense of the proceeding;
(2) that the party from whom fees, costs, and disbursements
are sought has the means to pay them; and
(3) that the party to whom fees, costs, and disbursements
are awarded does not have the means to pay them.
Minn. Stat. § 518.14, subd. 1 (2018).
Such attorney fees are generally referred to as “need-based fees,” see, e.g., Geske v.
Marcolina, 624 N.W.2d 813, 816 -17 (Minn. App. 2001), and we review an award of
need-based attorney fees for an abuse of discretion. Gully v. Gully, 599 N.W.2d 814, 825
(Minn. 1999). This court “will rarely reverse” a district court’s decision to award or deny
attorney fees. Rosenberg v. Rosenberg, 379 N.W.2d 580, 587 (Minn. App. 1985), review

C/D-2
denied (Minn. Feb. 19, 1986). If the statutory requirements are met for need-based attorney
fees, then a district court “shall” award the need-based attorney fees. Minn. Stat. § 518.14,
subd. 1.
Here, I would hold that the district court’s factual findings on the statutory elements
are supported by the record. First, the district court found that the fees were necessary to
enable Ho to “assert her rights in this proceeding,” particularly given Di Luong’s gambling
losses. The record supports the district court’s finding on the first element.
Regarding the second and third elements, the district court determined that Di Luong
had the means to pay the fees, while Ho did not. Di Luong submitted evidence that his
monthly living expenses totaled $1,720, while his monthly income netted $3,271 from full-
and part-time employment, plus an additional $350 per month from his mother. Ho is
unemployed, has no income, and has reasonable monthly expenses of $2,946. The
evidence in the record is sufficient to affirm the district court’s finding that the second and
third statutory elements were satisfied.
In sum, because the district court’s factual findings are supported by the record and
are not clearly erroneous, I discern no abuse of the district court’s discretion in awarding
need-based attorney fees to Ho, and I would affirm.