In re the Marriage of: Jonathon Henry Ortner, 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This opinion will be unpublished and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
A19-0394

In re the Marriage of: Jonathon Henry Ortner, petitioner,
Appellant,

vs.

Margaret Eleanor Ortner,
Respondent.

Filed March 16, 2020
Affirmed
Larkin, Judge

Carver County District Court
File No. 10-FA-17-13

Patrick W. Ledray, Brooklyn Park, Minnesota (for appellant)

Kirby M. MacLean, MacLean Law, P.A., Eden Prairie, Minnesota (for respondent)

Considered and decided by Cleary, Chief Judge; Larkin, Judge; and Florey, Judge.

U N P U B L I S H E D O P I N I O N
LARKIN, Judge
In this appeal from the district court’s judgment and decree dissolving the parties’
marriage, appellant-husband challenges several of the district court’s findings of fact, its

2
division of the parties’ assets and liabilities, and its award of conduct -based attorney fees
to respondent-wife. We affirm.
FACTS
In November 2016, appellant Jonatha n Henry Ortner (husband)1 petitioned for
dissolution of his 11 -year marriage to respondent Margaret Eleanor Ortner (wife). The
case was tried in May 2018. The main issue at trial was the division of the parties’ assets
and liabilities. The testimony established that husband had an ownership interest in several
businesses, along with his brother, K.O., and his father, M.O.
In October 2018, the district court issued its findings of fact, conclusions of law,
order for judgment, and judgment and decree dissolving the parties’ marriage. The district
court divided the parties’ assets and liabilities and ordered husband to pay wife
$400,851.24 within 30 days of entry of the judgment and decree, to “equalize the marital
estate.” In addition, the district court authorized an award of conduct-based attorney fees
to wife because “[h]usband’s behavior and actions . . . directly impacted the duration,
expense, and complexity of this matter.” The district court ultimately awarded wife
$19,140.84 in conduct-based attorney fees.
Husband appeals.

1 The case caption in the district court ide ntifies husband as “Jonathon Henry Ortner” and
that name is used in the caption on appeal. See Minn. R. Civ. App. P. 143.01 (“The title
of the action shall not be changed in consequence of the appeal.”). However, the parties’
briefs and the district court’s findings of fact identify husband as “Jonathan Henry Ortner.”
We use that spelling in the body of this opinion.

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D E C I S I O N
I.
Husband challenges several of the district court’s findings of fact. Findings of fact
“must be upheld unless clearly erroneous.” Nolan v. Nolan, 354 N.W.2d 509, 512 (Minn.
App. 1984), review denied (Minn. Dec. 20, 1984). “Findings of fact are clearly erroneous
when they are manifestly contrary to the weight of the evidence or not reasonably
supported by the evidence as a whole.” Hemmingsen v. Hemmingsen , 767 N.W.2d 711,
716 (Minn. App. 2009) (quotation omitted), review granted (Minn. Sept. 29, 2009) and
appeal dismissed (Minn. Feb. 1, 2010). “When determining whether findings are clearly
erroneous, [appellate courts] view[] the record in the light most favorable to the [district]
court’s findings.” Vangsness v. V angsness, 607 N.W.2d 468, 472 (Minn. App. 2000).
“Also, appellate courts defer to [district] court credibility determinations.” Id. “That the
record might support findings other than those made by the [district] court does not show
that the court’s findings are defective.” Id. at 474.
We address each of husband’s assertion s of factual error in turn , limiting our
analysis to husband’s framing of the issues.
A.
The district court found that the parties’ homestead was sold dur ing the dissolution
proceedings and that the property was subject to a judgment against husband in the amount
of $32,755.50. The district court found that “[n]o evidence was presented indicating that
the funds resulting in the judgment were used for marital expenses.”

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Husband asserts that the district court erred when it found that “no evidence was
presented indicating that the funds resulting in a judgment . . . of $32,755.50 were used for
marital expenses .” Husband points to his trial testimony that the “lien reflected funds
needed to cover marital expenses,” that the underlying funds were “to help with household
expenses and try to get [husband’s business] kind of up and off the ground ,” and that the
money was “spent on whatever [husband and wife] needed at the time, so mortgage
payments, some business tools, [and] supplies.”
Husband’s trial testimony was the only support for his assertion that the loan was
used for marital expenses. By finding that there was “[n]o evidence” to support husband’s
assertion, the district court functionally appears to have made a determination that
husband’s testimony was not credible. Because we defer to that credibility determination,
the resulting finding regarding the use of the funds is not clearly erroneous. See id. at 472
(“[A]ppellate courts defer to [district] court credibility determinations.”).
B.
The district court found that husband and M.O. testified that M.O. loaned husband
money “for household expenses and missed mortgage payments with the understanding
that [M.O.] would be repaid when the [parties’ homestead] sold.” The district court also
found that “[n]o evidence was presented supporting the amount of [M.O.’s] alleged loans
nor any written agreement s with regards to repayment of those loans upon the sale of the
homestead.”
Husband asserts that the district court erred by finding “that no evidence was
presented supporting either the amount of [the] purported l oans or the repayment

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agreement.” Husband argues that “testimony from [husband] and his father showed that
the loans were for marital debt, and the agreement was that repayment of the $30,000 .00
loan was to come from the sale of the homestead.”
Husband testified that M.O. loaned him and wife money to purchase their home .
But husband acknowledged that there was no note memorializing the purported loan , and
he testified that he anticipated paying back the loan “whenever [he] woul d be able to.”
M.O. testified that he loaned husband money f or mortgage payments and expected to be
repaid when the property sold, but he could not recall exactly how much money he loaned
husband. Again, the district court appears to have made a credibility determination and
rejected the t estimony supporting the alleged loan . The resulting finding regarding the
purported loan is not clearly erroneous. See id.
C.
As to the parties’ business assets, the district court found:
On December 31, 2015, Husband owned 100% of Oculus. On
January 3, 2017, Husband, [K.O.], and [M.O.] fraudulently
attempted to transfer 75% of Oculus out of the marital estate,
backdating transfer documents to January 2016. Husband,
[K.O.], and [M.O.] testified that this was done to convert a loan
[M.O.] had made to Oculus into equity. No other evidence of
that loan nor any prior agreement that [M.O.] would have an
equity interest in the company was submitted at trial. Based
upon the testimony and eviden ce presented, for purposes of
this p roceeding, the Court finds H usband owns 100% of
Oculus, which is a holding company with 382,685 Common
Units of Renters Warehouse -National. As of May 30, 2018,
each share of Renters Warehouse -National was worth $1.70

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according to Renters Warehouse’s CEO, [K.O.], making the
total marital value of Oculus $650,565.2

The district court also found that husband owns one -third of Illuminated
Investments, which has a marital value of $123,148. 11, and 50% of Total Trash Out
Services, which has a marital value of $800.
Husband asserts that the district court erred by finding that “no evidence was
presented concerning a transfer of 75% of Oculus stock out of the marital estate” because
testimony and evidence presented at trial showed that husband owned only 25% of that
stock, “which would have resul ted in a marital value of $162, 641.25.” Husband argues
that testimony and other evidence showed that he actually owned only 25% of the stock
and that he only temporarily owned 100% of the shares “to allow business transactions
concerning Oculus.”
At trial, husband testified th at on the date he filed for dissolution, he owned 100%
of Oculus “[o]n paper.” Husband explained that in 2016, his ownership interest in Oculus
was reduced to 25%. The remaining 75% was transferred to K.O. and M.O. The agreement
reducing husband’s ownership interest in Oculus was not signed until January 2017, after
husband had filed for dissolution of the parties’ marriage. Even though the document was
not signed until January 2017, the documents were backdated to January 1, 2016, indicating
that husband’s interest in Oculus was reduced before husband petitioned for dissolution.

2 Although the district court stated that the marital value of Oculus is $650,565 in its
findings of fact, it used $650,564.50 as the marital value of Oculus when it calculated the
parties’ distribution of assets and liabilities.

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At tria l, K.O. acknowledged that when husband petitioned for dissolution in
November 2016, husband owned 100% of Oculus on paper. K.O. also testified that the
documents transferring 75% of the Oculus shares from husband were executed on or about
January 3, 2017 and backdated to an effective date of January 1, 2016. K.O. explained that
the documents were backdated because K.O., M.O., and husband had verbally discussed
the transfer on an earlier date.
Although there was some testimony that husband owned less than 100% of Oculus
when husband filed for dissolution, wife argues that such evidence was largely “self -
serving,” “fully impeached,” and “non-credible.”
The district court appears to have rejected the testimony supporting husband’s claim
that he owned only 25% of the Oculus stock when he petitioned for dissolution. The district
court’s resulting findings that husband “fraudulently attempted to transfer 75% of Oculus
out of the marital estate [by ] backdating transfer documents to January 2016” and that
husband owns 100% of Oculus are not clearly erroneous.
D.
The district court found that the parties had debts in their individual names,
including husband’s promissory notes to R.M. and M.L. The district court found that “[n]o
evidence was presented indicating those loan proceeds were used for marital expenses.”
Husband asserts that the district court erred by finding that “no evidence was
presented [that the ] loans from [R.M.] and [M.L.] were used for marital expenses.”
Husband’s contention is based on his testimony that he paid for the parties’ housing
expenses, car payments, and other miscellaneous expenses, and that he borrowed money

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from R.M. and M.L. to pay for those marital expenses. O nce again, the district court’s
finding on this issue appears to have been based on a credibility det ermination, to which
we defer, and the resulting finding is not erroneous. See Vangsness, 607 N.W.2d at 472.
Perhaps the district court could have used more precise language in reje cting
husband’s evidence and stated that there was no credible evidence, but it is apparent to us
that the district court did in fact reject husband’s evidence. Husband’s arguments therefore
invite us to reassess credibility and reweigh the evidence. That is not our role. See Sefkow
v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (explaining that this court exceeds its scope
of review if it “usu rp[s] the role of the [district] court by reweighing the evidence and
finding its own facts”); Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 68 n.2 (Minn.
1979) (noting that an appellate court’s responsibility is to correct e rrors, not to retry the
case). In sum, husband has not established a basis for us to conclude that the challenged
findings of fact are clearly erroneous.
II.
Husband challenges the district court’s division of the parties’ assets and liabilities.
“Upon a dissolution of a marriage . . . the [district] court shall make a just and equitable
division of the marital property of the parties without regard to marital misconduct, after
making findings regarding the division of the property.” Minn. Stat. § 518.58, subd. 1
(2018). The district court has broad discretion in evaluating and dividing property, and its
determinations will not be overturned except for abuse of discretion. Antone v. Antone ,
645 N.W.2d 96, 100 (Minn. 2002). A district court abuses its discretion by making findings
unsupported by the evidence, misapplying the law, resolving the matter in a manner that is

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contrary to logic and the facts on record. Johnson v. Johnson, 902 N.W.2d 79, 84 (Minn.
App. 2017). If the district court’s division of property has an acceptable basis in fact and
principle, this court will affirm, even though we might have taken a different approach.
Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984).
We address each of husband’s assertions of error in turn , once again limiting our
analysis to husband’s framing of the issues.
A.
Husband asserts that the district court’s award to wife of “all funds from the sale of
the [parties’] homestead,” was “an unequitable, unfair and unreasonable property
division.” The district court determined that the total marital value of the parties’ real
estate, including the net proceeds from the sale of the parties’ homestead, was $70,619.04.
The district court awarded $32,755.50 of the valu e of the real estate to husband and the
remaining $37,863.54 of the value to wife. As a result, wife was assigned $5,108.04 more
of the value of the parties’ real estate than husband.
An equitable division of marital property does not require an equal division. Sirek
v. Sirek, 693 N.W.2d 896, 900 (Minn. App. 2005); see also Johns v. Johns, 354 N.W.2d
564, 566 (Minn. App. 1984) (“A [district] court’s division of marital property need not be
mathematically equal.”). Husband does not support his assertion that the district court’s
division of the sale proceeds from the marital homestead i s inequitable with any law or
analysis. In fact, he does not even explain why he believes it is inequitable.
“An assignment of error based on mere assertion and not supported by any argument
or authorities in appellant’s brief is waived and will not be considered on appeal unles s

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prejudicial error is obvious on mere inspection.” State v. Modern Recycling, Inc. , 558
N.W.2d 770, 772 (Minn. App. 1997) (quotation omitted); see also Szarzynski v. Szarzynski,
732 N.W.2d 285, 295 (Minn. App. 2007) (citing Modern Recycling and concluding that
because party’s argument on appeal was not specific, he waived the issue). Because we
discern no obvious prejudicial error, husband’s challenge to the district court’s division of
the sales proceeds from the parties’ homestead is waived.
B.
Husband asserts that the district court abused its discretion in holding him “solely
responsible for the payment of taxes, and promissory notes payable to [R.M.] and [M.L.]”
because that decision is not “supported by findings of fact” and is not a “fair and reasonable
division[] of marital debt.” Although husband mentions taxes in the relevant argument
heading in his appellate brief, he does not otherwise address the district court’s decision
regarding the parties’ tax liability in his briefing. Because w e discern no obvious
prejudicial error stemming from that decision, any related assignment of error is waived.
See Modern Recycling, Inc., 558 N.W.2d at 772; see also Szarzynski, 732 N.W.2d at 295.
As to husband’s assignment of error regarding the promissory notes to R.M. and
M.L., husband once again relies on his trial testimony, which the district court did not
credit. Moreover, husband once again does not offer legal argument or authority to explain
his assertion that the district court erred in its t reatment of those liabilities. Because
prejudicial error is not obvious on inspection, husband’s assertion of error is waived. See
Modern Recycling, Inc., 558 N.W.2d at 772; see also Szarzynski, 732 N.W.2d at 295.

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C.
Lastly, husband asserts that the district court’s cash property settlement requiring
him to pay $400,851.24 to wife within 30 days “was not supported by findings of fact in
that [he] had no assets to pay that amount, and his business interests were not liquid assets
that could be sold.” Husband also asserts that the district court erred by not awarding
husband and wife “equal stock or units (shares ) in the various business entities.”
Specifically, husband argues that the district court “clearly abused its discretion in not
simply dividing the stock in Oculus equally between” husband and wife. Husband further
argues that “[a]n award of one -half of the stock to each party by the trial court would not
have resulted in an impossibility for [h usband] to satisfy the majority of the [equalizer
payment],” which he attributes to one half of the district court’s valuation of Oculus.
As support for the latter argument, husband asserted for the first time at oral
argument to this court that the district court erred by not analyzing certain factors set forth
in Nardini v. Nardini, 414 N.W.2d 184, 188-89 (Minn. 1987). Husband acknowledged that
he did not cite Nardini, or rely on the factors listed therein, in support of his requests for
relief in district court or in his briefing to this court. Moreover, although wife’s responsive
brief to this court cited Nardini in support of the district court’s division of Oculus, husband
did not file a reply brief addressing wife’s reliance on Nardini.
Because husband did not ask the district court to apply Nardini, did not cite Nardini
as a basis for relief in his brief to this court, and did not file a reply brief addressing wife’s
reliance on Nardini, husband’s argument that the district court erred by not applying the
Nardini factors is not properly bef ore us. See Brodsky v. Brodsky, 733 N.W.2d 471, 478

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(Minn. App. 2007) (noting that this court will not consider issues raised for the first time
on appeal that were not raised in the district court and w ill not consider arguments not
addressed in briefing); see also Fontaine v. Steen, 759 N.W.2d 672, 679 (Minn. App. 2009)
(“[T]his court does not consider matters not argued to and considered by the district court
or issues not raised or argued in an appellant’s principal brief . . . .”).
We nonetheless note that husband’s reliance on Nardini is unavailing. In Nardini,
the Minnesota Supreme Court explained that a “just and equitable division of an asset
included in the marital property of the parties” can be accomplished in one of the following
three ways: (1) “[i]f the asset is readily divisible, the court can divide the asset and order
just and equitable distribution in kind, ” (2) “the court can order the sale or liquidation of
the asset and make a just and equitable division of the proceeds of sale or liquidation,” or
(3) “the court can determine the value of the asset, order distribution of the entire asset to
one of the parties, and order the recipient to pay to the other spouse a just and equitable
share of the value of the asset.” 414 N.W.2d at 188.
As to the third method, the supreme court listed eight factors that must be considered
when determining the va lue of a closely-held business. Id. at 190. Even though those
factors govern asset valuation, husband pointed to the district court’s fai lure to address
those factors as support for his argument that the district court should have divid ed the
Oculus stock between the parties, instead of awarding wife a portion of Oculus’s value.3

3 As to the district court’s valuation of Oculus, husband’s brief makes an unsupported and
undeveloped reference to the valuation, asserting that “[t]here was no evidence presented
that . . . the market value [of Oculus] is $1.70 per share.” But Husband’s own witness —
his brother K.O., who is the C.E.O. of Renter’s Warehouse—testified that Oculus holds

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As to the method of dividing Oculus, the district court used the third Nardini
method: it determined the value of the asset, order ed distribution of the entire asset to
husband, and ordered husband to pay wife “a just and equitable share of the value of the
asset.” See id. at 188. That choice was consistent with the supreme court’s statement in
Nardini that although “the first method [(i.e., division in kind)] may be an eminently
suitable way to divide the shares of a publicly owned corporation, it is an unlikely choice
if the corporation is closely held.” Id.
Wife argues that the district court properly exercised its discretion in awarding her
a portion of the monetary value of Oculus because the “closely held corporation was
completely controlled by Husband, Brother (the CEO), and Father ” and they “could
manipulate the corporation’s books to say whatever would best serve the Ortners’ personal
interests.” Wife further argues that the cash award allowed wife to retain her marital share
of Oculus without having to be thrown into “corporate ownership positions in any of the
businesses.” Wife’s arguments are consistent with the supreme court’s statements in
Nardini that a distribution in kind “is an unlikely choice if the corporation is closely held”
and that “[w]hatever the method, the goal is to place both parties in the optimum position.”
Id. The district court did not abuse its discretion by awarding wife a portion of the value
of Oculus.
As to husband’s argument that he could not afford the equalizer payment or comply
with the payment deadline, t he district court received detailed evidence regarding

382,685 shares of Renters Warehouse National and that each share is worth $1.70 . That
testimony was the basis for the district court’s valuation of $650,564.50.

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husband’s business dealings and finances. We discern no basis to conclude that the district
court’s decision regarding the amount or the timing of the equalizer payment was an abuse
of discretion. See Swa nstrom v. Swanstrom , 359 N.W.2d 634 , 636 (Minn. App. 1984)
(stating that an abuse of discretion will be found only if there is a “conclusion that is against
logic and the facts on record”).
In sum, error on appeal is never presumed. Loth v. Loth, 35 N.W.2d 542, 546 (Minn.
1949). It “must be made to appear affirmatively before there can be reversal” and “the
burden of showing error rests upon the one who relies upon it.” Id. Husband has not met
his burden to establish reversible error in the district court’s division of the p arties’ assets
and liabilities.
III.
Husband challenges the district court ’s award of $19,140.84 in conduct -based
attorney fees to wife. Conduct-based attorney fees may be imposed “against a party who
unreasonably contributes to the length or expense of the proceeding.” Minn. Stat. § 518.14,
subd. 1 (2018). Conduct-based attorney fees may be “based on the impact a party’s
behavior has had on the costs of the litigation regardless of the relative financial resources
of the parties.” Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991).
“While bad faith could unnecessarily increase the length or expense of a proceeding, it is
not required for an award of conduct-based attorney fees under Minn. Stat. § 518.14, subd.
1.” Geske v. Marcolina, 624 N.W.2d 813, 818 -19 (Minn. App. 2001). The requesting
party bears the burden of establishing that the other party’s conduct unreasonably
contributed to the length or expense of the proceeding. Id. at 818. This court reviews a

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district court’s award of conduct -based attorney fees for an abuse of discretion. Brodsky,
733 N.W.2d at 476.
Husband argues that the district court’s findings do not support an award of conduct-
based attorney fees because “his conduct on which the fee award is based was reasonable”
and there is nothing in the record to indicate that husband ’s conduct contributed to the
length or expense of the proceeding in a way that caused wife to incur an addition al
$19,140.84 in attorney fees.
The district court found that “[h]usband’s behavior and actions have directly
impacted the duration, expense and complexity of this matter” and concluded that it was
“appropriate that Husband pay conduct -based attorney fees.” Wife’s attorney submitted
an affidavit in support of the attorney-fee award. The affidavit stated that husband’s failure
to respond to questions related to his business interests and to provide documentation
promptly “not only caused delay, but caused great and repeated expense to Wife.” Wife’s
attorney pointed to examples of discovery delay caused by husband, noting that the process
“took well over a year due to [his] delays and incomplete disclosures.”
The district court found that wife’s counsel “spent consider able time addressing
discovery.” The district court noted that “[t]here is no requirement for parties to participate
in informal discovery,” but it also noted that because “[t]he business entities involved in
this proceeding were complex and significant, discovery was necessary.” The district court
found that “ there was an attempt to provide incomplete or misleading information that
contributed to the delay and expense of this proceeding.” The district court denied some
of wife’s requests for reimbursement. But it agreed that four “depositions were necessary

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due to the incomplete or possibly misleading discovery responses” and therefore “included
the fees for preparing for and conducting [those] d epositions and for obtaining the
transcripts” in the attorney-fee award.
The district court was familiar with the underlying litigation and the discovery
process. It was therefore in the best position to evaluate the extent to which husband’s
conduct unreasonably contributed to the length and expense of the proceeding. See
Vangsness, 607 N.W.2d at 472 ( noting that “the [district] court has the feel of the trial”
(quotation omitted)). The district court concluded that an award of conduct-based attorney
fees was appropriate because the need for discovery was due in part to husband’s provision
of incomplete or misleading information. T hat conclusion was likely influenced by the
district court’s finding that husband “fraudulently attempted to transfer 75% of Oculus out
of the marital estate .” On this record, we cannot say that the district court abused its
discretion in awarding conduct-based attorney fees.
Affirmed.