In re the Marriage of:

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0016

In re the Marriage of:

Caryn Blaine Evans, petitioner,
Respondent,

vs.

Keith Eric Evans,
Appellant.

Filed January 19, 2021
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-FA-18-4324

Jonathan D. Miller, Jean Paul Agustin, Me agher & Geer, PLLP, Minneapolis, Minnesota
(for respondent)

Adam Y. Galili, Metro Law & Mediation, Minneapolis, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Smith, Tracy M., Judge; and
Klaphake, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In his appeal from the judgment and decree (J&D) dissolving the parties’ marriage,
appellant/cross-respondent Keith Eric Evans (husband) argues that (1) the district court
violated his homestead-exemption rights when it required that the proceeds of the sale of
the marital homestead be used to pay off certain unsecured marital debts to family members
and (2) the district court abused its discreti on in a number of ways in determining his
obligation to pay spousal maintenance. In her cross-appeal, respondent/cross-appellant
Caryn Blaine Evans (wife) argues that the di strict court abused its discretion when it
ordered only ten years of spousal maintenance rather than permanent spousal maintenance.
As to husband’s appeal, we conclude that husband forfeited his homestead-
exemption theory by failing to raise it to the district court and that the district court did not
abuse its discretion as husband contends with respect to spousal maintenance. As to wife’s
cross-appeal, we conclude that, because of internal inconsistencies with the district court’s
factual findings and legal conclusions regard ing wife’s need for pe rmanent or temporary
spousal maintenance, the district court’s order as wr itten does not permit meaningful
appellate review. Therefore, we affirm in part , reverse in part, and remand to the district
court to address the duration of spousal maintenance.
FACTS
The following facts are drawn from the bench trial in this matter. Husband and wife
were married in 1995. The parties have two children; one was 17 years old at the time of
trial, and the other was emancipated and living outside the home. The parties separated in

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April 2017, and wife petitioned for dissolution of the marriage in 2018. After the parties
resolved many issues in the dissolution, the district court held a bench trial in July 2019 on
issues including the sale of the parties’ marital homestead and spousal maintenance.
Sale of marital homestead and payment of debts from proceeds
When the parties separated, and thro ughout the dissolution proceedings, wife
remained at the parties’ marital homestead in St. Louis Park with the parties’ minor child.
Husband moved out of the marital homestead and lived for a period of time in Minneapolis
before relocating to Massachusetts. At the tim e of trial, husband had lived outside of the
marital homestead since April 2017. Throughout the dissolution proceedings, husband paid
the mortgage, utilities, and taxes on the marital homestead.
Although both parties wanted the marital homestead sold as part of the dissolution
proceedings, they did not agree on the timing of the sale. Following trial, the district court
ordered the parties to list the marital homestead for sale by March 1, 2020.
The district court also addressed the dist ribution of the proceeds of the sale. Wife
requested that the net proceeds be applied to various debts, including loans from the parties’
family members. The district court found that the parties owed $57,400 to wife’s mother,
which they had used primarily to pay for hea lth insurance; $32,500 to wife’s sister and
brother-in-law, which had been used to pay husband’s rent; and $5,000 to husband’s
brother, which had been used fo r “life expenses.” The district court allocated these debts
evenly between the parties. The district court also orde red that the net proceeds from the
sale of the marital homestead be used to pay a number of marital debts, including the debts
to wife’s family members and to husband’s brother, with the re maining proceeds split

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equally between the parties. 1 Husband does not dispute that the family debts are marital
debts, nor does he dispute the amount owing or the district court’s equal allocation of the
family debts between the parties. He challenges only the district c ourt’s requirement that
the proceeds of the sale of th e marital homestead be applied to the marital debt owed to
wife’s family members. He does not challenge the district court’s requirement that the
proceeds be applied to any other marital debts.
Spousal maintenance
The district court also mandated that hu sband pay wife $2,507 in monthly spousal
maintenance commencing at the time of the sale of the ma rital homestead and continuing
for ten years. Relevant to this appeal, in determining spousal maintenance, the district court
considered husband’s and wife’s incomes, wife’s expenses following her anticipated
relocation to New Jersey, and the budget defi cit that each party would face after payment
of spousal maintenance.
The parties’ incomes
From 1998 to 2016, husband worked as a shoe sales representative for Clarks. While
working for Clarks, husband consistently ea rned more than $100 ,000 annually and
occasionally earned more than $200,000 per year. From 2017 to March 2019, husband
worked for Samuel Hubbard Company, also as a sales representative in shoes. During his
time at Samuel Hubbard, husband earned a gr oss monthly income of $8,333. After losing

1 Although the family debts amount to $94,900, the J&D orders that $94,000 in unsecured
family debt be paid out of the sale proceeds.

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his job at Samuel Hubbard, husband began working on business ventures in the cannabidiol
(CBD) industry, an industry in which he has no experience. By the time of trial, husband
had not yet earned income from his CBD vent ures and had turned down an offer from
Clarks to return to as a sales representative, where he could have earned $130,000 per year.
At trial, husband testified that he has “high hopes” for his CBD business and hopes to make
between $60,000 and $70,000 pe r year through sales of CBD products. He testified that,
based on his more than two decades of sales experience, he could be successful selling any
product and that his passion for CBD products will ensure his success. The district court
found husband’s testimony regarding his current employment to be credible.
In the J&D, the district court determined that, given the unpredictable nature of and
difficulty in ascertaining husba nd’s income from his CBD business, it was impracticable
to determine his actual income and therefor e appropriate to rely on husband’s earning
capacity. The district court found that, base d on husband’s prior earnings at Samuel
Hubbard and his acknowledgement that he could find immediate employment in sales at a
comparable salary, husband’s earning capacity is $8,333 per month.
Wife initially worked as a licensed preschool teacher in Massachusetts, but she quit
working full-time in 1999, when the family moved to Minnesota, so that she could care for
the couple’s children. After the parties sepa rated, wife took a part-time job as a pet
specialist at Lunds & Byerlys. At trial, wife testified that she was not physically able to
return to preschool teaching. Wife also test ified that, were she to seek the necessary
education to regain her teaching license, it w ould lead to no discernable increase in her
income. Wife testified that she works an average of 36 hours per week at Lunds & Byerlys,

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where she earns $14.75 an hour. The district court determined that wife’s gross monthly
income is $2,472.
Wife’s expenses after relocation to New Jersey
Wife stated at trial that she intended to relocate to New Jersey in fall 2020 to be near
her mother. In preparing her budget estimate for trial, wife conducted research into
necessary expenses in New Jersey and ultimately determined that her budget in New Jersey
would be $5,197.50 per month. Wi fe talked to a real estate agent in the area to estimate
rent for a two-bedroom apartment. She similarly researched the cost of medical insurance,
cable and internet service, and parking and tolls. For her usual household expenses like
food and other household items, wife used her current expenses in Minnesota so that they
matched her current lifestyle. Based on this information, wife’s post-dissolution budget
estimate in New Jersey was $5,197.50 a month—a reduction from her current monthly
living expenses of $7,885.62 in Minnesota. Th e district court found that wife’s proposed
post-dissolution expenses of $5, 197.50 were reasonable and c onsistent with her marital
standard of living.
Spousal-maintenance obligation and the parties’ budget deficits
Wife used the tool “FinPlan” to propose five spousal-maintenance scenarios to the
district court. Husband did not object to admission of any of these FinPlan calculations at
trial. These scenarios were calculated ba sed on both wife’s a nd husband’s estimated
budgets. The district court, relying on scenario 3, granted wife $2,507 in monthly spousal
maintenance for ten years. The district court determined that, at this amount of spousal
maintenance, husband and wife would each have a $772 budget deficit every month.

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Language in order regarding tax implications
In the paragraph of its conclusions of law addressing spousal maintenance, the
district court included the following language:
It is intended that this mainte nance payable to [wife] shall be
included in [wife’s] gross income, pursuant to Section 71 of
the Internal Revenue Code, and shall be deductible by
[husband], pursuant to Section 215 of the Internal Revenue
Code.

This appeal and cross-appeal follow.
DECISION
Husband first challenges the district cour t’s decision to require that the marital-
homestead proceeds be used to pay off marital debt to wi fe’s family members and to
husband’s brother, arguing that the requirement violates his homestead-exemption rights.
He next challenges the spousal-maintenance obligation to wife on four grounds: (1) the use
of his earning capacity to determine his income , (2) his monthly budget deficit as a result
of the maintenance obligation, (3) the relia nce on wife’s budgeted living expenses, and
(4) the inclusion in the J&D of obsolete language regarding income-tax obligations. In her
cross-appeal, wife argues that the spousal -maintenance obligation should be permanent
instead of temporary. We address each of th ese issues in turn, di viding them into two
categories—marital debt and spousal maintenance.
I. Payment of Marital Debts from the Homestead Proceeds

Husband argues that, by ordering the sale of the marital homestead and the use of
the proceeds to pay off the parties’ unsecured fa mily debt, the district court violated the
homestead exemption founded in the Minnesota Constitution and codified by statute. See

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Minn. Const. art. I, § 12; Minn. Stat. § 51 0.01 (2018). He asserts that, by ordering the
parties to pay creditors from their homestead pr oceeds, the district court deprived him of
the legal protection from creditors to which his homestead equity was entitled.
Wife counters that the district court had the discretion to dispose of marital property
equitably and that its decision was not an abus e of discretion in the circumstances. Wife
further argues that husband’s homestead-exemption argument fails because he forfeited the
argument by failing to raise it in the district court and because, on its merits, the exemption
does not apply to a marital dissolution order regarding the division of property.
We conclude that husband forfeited th e homestead-exemption argument by failing
to raise it in the district court. While, at tr ial, husband did generally oppose the use of the
marital homestead proceeds to pa y off the debt to wife’s fa mily, he did not assert the
homestead-exemption argument. Because husband did not provide the district court the
ability to conduct the necessary fact finding and analysis to determine whether husband
had homestead rights that applied to the use of sale proceeds to the payment of the parties’
marital debts, this issue is not properly before us on appeal. See, e.g., In re Dahlgren Twp.,
906 N.W.2d 512, 519-20 (Minn. App. 2017) (“[L]i tigants are bound in this court by the
theory or theories, however erroneous or improvident, upon which the action was actually
tried below.” (quotation omitted)). Husb and’s argument is therefore forfeited. See Thiele
v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (citing Pomush v. McGroarty, 285 N.W.2d
91, 93 (Minn. 1979) (“Nor may a party obtai n review by raising the same general issue
litigated below but under a different theory.”)). Because the homestead-exemption theory

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is the only basis on which husband challenges the district court’s requirement to pay the
family debts from sale proceeds, his challenge to that requirement fails.
II. Spousal Maintenance

Both parties challenge the district court’ s spousal-maintenance determination. In a
dissolution proceeding, a district court may gran t spousal maintenance if it finds that, in
light of the standard of living establishe d during the marriage, the spouse seeking
maintenance “lacks sufficient property, incl uding marital property apportioned to the
spouse, to provide for [the] reasonable need s of the spouse” or “is unable to provide
adequate self-support . . . through appropriate employment.” Minn. Stat. § 518.552, subd. 1
(2018); see Lyon v. Lyon , 439 N.W.2d 18, 22 (Minn. 1989 ) (stating that a maintenance
award depends on a showing of need). If the district court determines that spousal
maintenance is appropriate, it applies the factors in Minn. Stat. § 518.552, subd. 2 (2018),
to determine the amount and duration of that maintenance.2
Appellate courts review a spousal-maint enance determination for an abuse of
discretion. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 19 97). A district court abuses
its discretion if its findings of fact are unsupported by the record or if it improperly applies

2 These factors include: (1) the resources of the party seeking maintenance; (2) the time
necessary to find education or training to a llow the party seeking maintenance to become
partially or fully self-supporting; (3)the marital standard of living; (4) the duration of the
marriage and, if the party seeking maintena nce was a homemaker, their absence from the
workforce and the diminished quality or usefulness of their prior education or skill; (5) loss
of earnings, seniority, retirement benefits, and other employment opportunities by the party
seeking maintenance; (6) th e age and physical and emo tional condition of the spouse
seeking maintenance; (7) the ability of the spouse paying maintenance to meet their needs
while also paying maintenance; and (8) the cont ribution of each party to the value of the
marital property. Minn. Stat. § 518.552, subd. 2.

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the law. Dobrin, 569 N.W.2d at 20 2, 202 n.3 (citing Sefkow v. Sefkow, 427 N.W.2d 203,
210 (Minn. 1988)).
We first address husband’s arguments ag ainst the district court’s award of
temporary spousal maintenance before turning to wife’s argument on cross-appeal.
A. Husband’s challenges to sp ousal-maintenance determination

1. Husband’s earning capacity

Husband argues that the district court e rred when determini ng his ability to pay
maintenance because it improperly relied on his earning capacity, which the district court
determined to be $8,333 per month, to measure his income. “A district court’s
determination of income for maintenance purposes is a finding of fact and is not set aside
unless clearly erroneous.” Peterka v. Peterka, 675 N.W.2d 353, 357 (Minn. App. 2004).
In determining an obligor’s ability to pay maintenance, district courts may use
earning capacity to measure inco me if (1) it is impracticable to determine an obligor’s
actual income or (2) the obligor’s in come is unjustifiably self-limited. Fulmer v. Fulmer,
594 N.W.2d 210, 213 (Minn. Ap p. 1999). When an obligor is self-employed, the use of
earning capacity is commonly used. Id.
Here, the district court determined that it is impracticable to determine husband’s
actual income and therefore relied on husband’ s earning capacity to determine his ability
to pay maintenance. The district court’s fi nding that it is imprac ticable to determine
husband’s income is supported by the record. Although , at the time of tr ial in July 2019,
husband had not yet earned income from his CBD business ventures (and his actual income
was limited to odd jobs), he testified that he was working full-time in his CBD business,

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that he had “high hopes” for the business, and that he hoped to earn between $60,000 and
$70,000 per year. He testified that he anticip ated “big” numbers in sales and income for
2020 due to an expanding CBD market and ongoing changes to marijuana laws. This record
evidence supports the district court’s finding that determining husband’s income from his
self-employment was impracticable when ev aluating husband’s ability to pay a spousal-
maintenance obligation beginning sometime in 2020.
Based on his previous earning history, the district found that husband’s gross
monthly earning capacity was $8,333. This fi nding, too, is suppor ted by the record.
Husband testified that he earned gross monthl y salary of $8,333 in his most recent sales
position and he acknowledged that he could find immediate employment in sales and earn
income comparable to his previous sales earnings. See Fulmer , 594 N.W.2d at 214
(affirming an estimated earning capacity based on the obligor’s earning history).
But husband argues that the district court erred by relying on his earning capacity
because the district court ma de no finding of bad faith or unjustifiabl e self-limitation of
income. We disagree that such a finding wa s required. While a bad-faith finding is
necessary when imputing a maintenance obligor’s income if the obligor is unemployed or
has otherwise unjustifiably self-limited their income, see Melius v. Melius , 765 N.W.2d
411, 415-16 (Minn. App. 2009 ), husband has cited no authority holding that bad faith is
required to find that it is impracticable to determine the actual income of a self-employed
maintenance obligor. Husband asserts that he is not unemployed. He testified that he was
working full-time in his business ventures and anticipated earning substantial income in
the near future based on a growing market and his sales skills and experience. The district

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court found husband credible. No bad-faith finding was necessary because the district court
relied on husband’s earning capacity due to th e impracticability of determining his actual
income from his self-employment.
2. Budget deficit after paym ent of spousal maintenance

Husband argues that the district court ab used its discretion by ordering a spousal-
maintenance obligation that leaves him with a monthly budget deficit. We review a district
court’s determination of spousal maintenanc e for abuse of discretion in light of the
guidelines contained in section 518.552. Justis v. Justis, 384 N.W.2d 885, 891 (Minn. App.
1986).
Husband contends that the district court abused its discretion by relying on wife’s
FinPlan scenario 3, which left both parties w ith a $772 budget deficit. One of the factors
the district court considers under section 518.552 is whether a maintenance amount will
allow “the spouse from whom maintenance is sought to meet needs while meeting those of
the spouse seeking maintenance. ” Minn. Stat. § 518.552, subd. 2(g). But the simple fact
that the spousal-maintenance obligation leads to a budget deficit does not per se mean the
district court abused its discretion. See Justis , 384 N.W.2d at 891-92 (explaining that
“[e]ach case must be determined on its ow n facts and no single statutory factor is
dispositive” (quotation omitted)); see also Ganyo v. Engen, 446 N.W.2d 683, 687 (Minn.
App. 1989) (affirming a maintenance obligation creating a monthly deficit for the obligor).
Although husband is left with a deficit based on his budget, the district court’s
monthly spousal-maintenance determination is supported by the record. The amount itself
is drawn directly from wife’s FinPlan scenario 3, which leads to an equal budget deficit for

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both parties. In addition, as the district court determined and as the record supports, wife’s
FinPlan scenario 3 overstates husband’s e xpected budget because it includes expenses
related to the marital homestead (mortgage payment, property taxes, and homeowner’s
insurance) that will no longer apply once the homestead is sold and the spousal-
maintenance obligation begins. If those re ductions in expenses are accounted for,
husband’s expected budget deficit will significantly decrease. In light of all of the factors,
and based on the record evid ence, even though husband might incur a budget deficit
because of his spousal-maintenance obligation, the district court’s determination of the
amount of husband’s obligation was not an abuse of discretion.
3. Wife’s proposed budget

Husband argues that the district court abus ed its discretion by relying on wife’s
budget in setting spousal maintenance because her budget is too speculative. The district
court’s calculation of living expenses must be supported by evidence presented by the
parties. Rask v. Rask , 445 N.W.2d 849, 854 (M inn. App. 1989). Here, the district court
relied on wife’s testimony in determining the reasonableness of her budget. We defer to
the trial court’s determination of the credibility of witnesses. Sefkow, 427 N.W.2d at 210.
The district court’s finding of wife’s e xpenses is not clearly erroneous. The record
evidence supports wife’s budget calculation. At trial, wife testified that, to determine her
budget, she contacted real estate agents in New Jersey for the average cost of an apartment,
she called insurance brokers to price her medi cal insurance, and she also contacted her
friends living in New Jersey to determine expenses for tolls, parking, and other expected
costs. She further stated that her estimation of personal expe nses such as groceries and

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toiletries was based on the amount she currently spent on these items. The record reflects
that wife’s budget calculation is not too speculative, and the district court did not abuse its
discretion by relying on her proposed budget.
4. Erroneous income-tax implications

Finally, husband argues that the district court erred by classifying his spousal-
maintenance payments as deductions for his fe deral income-tax obligation and as taxable
income for wife.
Because this issue relates to the application of federal income-tax law to husband’s
spousal-maintenance obligation, it is reviewed de novo. See Melius, 765 N.W.2d at 414.
But even if, on appeal, a complaining party shows that the district court committed an error,
this court will not reverse unless the error is prejudicial. See Minn. R. Civ. P. 61 (requiring
harmless error to be ignored); Goldman v. Greenwood, 748 N.W.2d 279, 285 (Minn. 2008)
(citing this aspect of Minn. R. Civ. P. 61); Kallio v. Ford Motor Co., 407 N.W.2d 92, 98
(Minn. 1987) (“Although error may exist, unle ss the error is prejud icial, no grounds for
reversal exist.”).
A 2017 change to the Internal Revenue Code eliminated husband’s ability to deduct
spousal maintenance from his gross income while allowing wife to exclude spousal
maintenance from her gross income. See Pub. L. No. 115-97, § 11051, 131 Stat. 2054,
2089-90 (2017). Thus, the provision in the J&D stating that “[i]t is intended that this
maintenance payable to [wife] shall be included in [wife’s] gross income . . . and shall be
deductible by [husband]” erroneously reflects outdated law.

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However, the FinPlan calculations consider ed by the district c ourt in determining
husband’s spousal-maintenance obligation properly calculated both party’s tax liabilities.
Further, FinPlan scenario 3, on which the di strict court relied to set husband’s spousal-
maintenance obligation, lists both parties’ “Tax Impact-Alimony” as $0. Therefore,
husband’s tax liability as reflected in the dist rict court’s maintenance determination is in
compliance with the new version of the Internal Revenue Code. For that reason, any error
is harmless.
B. Wife’s cross-appeal of the du ration of spousal maintenance

In her cross-appeal, wife contends that the district court e rred by granting her
temporary rather than permanent spousal maintenance. This issue is reviewed for abuse of
discretion. See Dobrin, 569 N.W.2d at 202.
The decision to award permanent rather than temporary spousal maintenance turns
on whether the spouse receiving maintenance will ever become self-supporting. Permanent
spousal maintenance is proper if “it is uncer tain that the spouse seeking maintenance can
ever become self-supporting.” Nardini v. Nardini, 414 N.W.2d 184, 198 (Minn. 1987); see
Minn. Stat. § 518.552, subd. 3 (2018) (“Where there is some uncertainty as to the necessity
of a permanent award, the court shall order a permanent award leaving its order open for
later modification.”). But if the only uncertainty is when (rather than whether) a recipient
of spousal maintenance will become self-s upporting, a district court should award
temporary spousal maintenance. Maiers v. Maiers , 775 N.W.2d 666, 669 (Minn. App.
2009). An award of temporary spousal maintenance implies that the recipient is presently
not self-supporting but is expected to become self-supporting and, thus, has an obligation

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to make reasonable efforts to increase ea rning capacity to become self-supporting. See
Hecker v. Hecker, 568 N.W.2d 705, 709-10 n.4 (Minn. 1997); Maiers, 775 N.W.2d at 669.
Here, the district court found, at the beginning of its spousal-maintenance analysis,
that “[wife] is not presently capable of se lf-support” but “is capable of becoming self-
supporting.” The district court then went on to analyze each of the requisite factors under
Minn. Stat. § 518.552, subd. 2. In doing so, the district court fo und that (1) wife’s
significant time away from the workforce in her role as a homemaker, (2) her loss of
employment opportunities due to her time away from the work force to take care of the
parties’ children, and (3) her age and phys ical condition all demonstrate her need for
permanent spousa l maintenance. See Minn. Stat. § 518.552, su bd. 2(d)-(f). The district
court then concluded:
While the Court may award perm anent or temporary spousal
maintenance, Minnesota law stat es “that where there is some
uncertainty as to the necessity of a permanent award, the court
shall order a permanent award leaving its order open for later
modification.” Minn. Stat. § 51 8.552, subd. 3. Additionally,
the facts in this case warrant an award of permanent spousal
maintenance because of the age of [wife], until such time as
she has sufficient retirement in come to meet her reasonable
monthly living expenses.

The district court’s rationale for gran ting temporary rather than permanent
maintenance is unclear. It appears to be ba sed on the supposition that wife’s retirement
funds will provide sufficient in come to self-support. But the district court did not make
explicit findings that wife would, in fact, become self-supporting at that time. Because the
district court did not explicitly state its reasons for granting wi fe temporary spousal
maintenance, and given the apparent internal inconsistency within the district court’s

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factual findings, we are unable to determine the district court’s rationale in granting
temporary spousal maintenance. We therefor e reverse and remand for clarification the
question whether temporary or permanent spousal maintenance is appropriate in this case.
The district court may reopen the record at its discretion.
Affirmed in part, reversed in part, and remanded.