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This opinion is nonprecedential except as provided by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
A20-0836

In re the Marriage of:

Kimberley Jane Thomas, petitioner,
Respondent,

vs.

Augustus Conrade Thomas,
Appellant.

Filed April 19, 2021
Affirmed
Smith, Tracy M., Judge

Carver County District Court
File No. 10-FA-18-319

Kathryn M. Lammers, Heimerl & Lammers, Minnetonka, Minnesota (for respondent)

Robert J. Hajek, Hajek & Beauclaire LLC, Minnetonka, Minnesota (for appellant)

Considered and decided by Ross, Presid ing Judge; Connolly , Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this marital-dissolution appeal, appella nt Augustus Conrade Thomas (husband)
challenges the district court’ s division of marital property between him and respondent
Kimberley Jane Thomas (wife) following a trial. He argues that the district court abused
its discretion by (1) failing to determine and a ccount for the value of the parties’ marital

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interest in husband’s litigation against his fa mily’s business, (2) valuing the parties’
interests in certain receivables without adequate support in the record or explanation, and
(3) dividing the marital estate based on marital fault. We affirm.
FACTS
Husband and wife were married in 1994, and remained married for 24 years. They
have two children. The partie s separated in 2018, and wife petitioned for dissolution of
marriage. The parties resolved many of the issues in their di ssolution, including some of
the issues regarding the division of their property. But, because some division-of-property
disputes remained, the district court held a bench trial on those issues in July 2019.
In its judgment following trial, the district court divided the parties’ marital property
by awarding to each party the assets and de bts in each party’s name. Two categories of
marital property are relevant to this appea l: (1) interests in litiga tion pursued by husband
against his family’s business and (2) certain receivables due to each of the parties.
The first category of property—interes ts in the litigation— involves husband’s
claims against his family’s Canadian nur sing care business, Thomas Health Care
Corporation (THCC). Husband was previously employed by THCC and owns shares in the
company. In 2010, husband and his brother sued THCC, their parents, their two sisters, and
a holding company created by THCC. The lawsuit was based on several claims, including
dilution of the brothers’ comm on shares, and sought more th an $5 million in damages to
be divided equally between the brothers. At the time of trial in the present matter, the THCC
litigation had not resulted in any recovery for husband or his brother.

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At trial, husband and wife disputed the value of the interest s in the litigation.
Husband argued that the litigation interests should be valued at $0 because the litigation is
complete and THCC does not have funds to pa y husband for his claims or his shares.
Husband testified that THCC was sold in 2017 for $19 million and that the proceeds from
the sale were to be used to pay shareholders. But, husband testified, there are no remaining
proceeds to pay husband or hi s brother because THCC and the family used inappropriate
financial tactics during the sale. Wife, on the other hand, disputed that the litigation is over.
She contended that the value of the litigation in terests is at least th e value of husband’s
preferred and common shares, which together total $371,403.49.
Although husband asserted that the litigation is complete and that he will not receive
any proceeds, husband also testified that he has not yet exhausted his legal remedies in the
case. The litigation was submitted to arbitration and an award was ordered, but, according
to husband’s testimony, he is considering whether to appeal that award.
The second category of contested property involves certain receivables owing the
parties. One receivable consists of money owed the parties by husband’s brother. Because
husband’s brother did not have sufficient funds to contribute to attorney fees at the start of
the litigation against his family ’s business, husband and wife agreed to pay the brother’s
fees and costs but expected reimbursement from him at the close of the litigation. The
brother’s debt for legal fees amounts to $76,832.69, to be collected at the close of the
litigation. Husband’s brother also owes the pa rties an additional $17,907.24 for a loan
unrelated to the litigation. Together, these obligations total $94,739.93, which is the value
the district court assigned to this receivable. Another receivable is money owed to wife,

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including for accounting services that she performed but for which she had not been paid.
The district court valued that receivable at $80,000.
At trial, wife testified that the marital estate had incurred around $267,000 in legal
fees on the THCC litigation, wh ich the parties funded by liquidating retirement accounts
and putting their incomes toward the litigation. Wife stated that she grew uncomfortable
with this arrangement as the litigation grew increasingly expensive. In 2015, wife began to
save for retirement in case the lawsuit did not bear fruit. She asked that husband do the
same, but he did not.
Wife testified that since 2007, the parties have kept their finances separate. Thus,
for the distribution of marital property, wife proposed that the district court award each
party the assets and debts in their respective names. Under this proposal, wife did not seek
any part of any future recovery that husband might attain in the THCC litigation.
The district court adopted wife’s pro posal. It found not credible husband’s
assertions that the litigation is over and that it s value is $0. It also said that it had “no
meaningful way to measure the value of this a sset.” The district court observed that, if it
found that the value of the litigation interests to be $0 as husband claimed, it would result
in wife owing husband an equalization paymen t of $31,015.14. To pay that equalization
payment, the district court observed, wife would have to pull money from her retirement
savings. The district court also observed that , if it instead followed wife’s proposal,
husband would end up with less retirement savi ngs. The district court found that result to
be equitable, given the disparity in the partie s’ income and the respective debt that each
party would be allocated.

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In the end, the district court did not value the litigation interests. It allocated to each
party the marital assets and debts in their respective names. It awarded wife her receivable
of $80,000, among other assets and debts in her name. It awarded husband his receivable
of $94,739.93, any future pr oceeds from the THCC litigation, as well as other assets and
debts in his name. The district court determined that this was an equitable distribution of
the marital estate, in part, because any initial financial hardship that husband might face is
offset by his income, which is double that of wife’s, and because wife testified that she will
use her retirement savings to pay down marital debt.
Husband appeals.
DECISION
I. The district court did not err by no t determining the value of the THCC
litigation interests.
Husband argues that the district court ab used its discretion by failing to determine
and to consider, in its allocation of marital assets, the value of the litigation against THCC.
Specifically, he contends that, if the district court had valued that asset as $0, as he contends
it is worth, it would have led to wife owin g him an equalization pa yment of $31,015.14.
For four reasons, we reject the argument.
Husband’s argument faces a threshold barrier: “[o]n appeal, a party cannot complain
about a district court’s failure to rule in [his] favor when one of the reasons it did not do so
is because that party failed to provide the district court with the evidence that would allow
the district court to fully address the question.” Eisenschenk v. Eisenschenk, 668 N.W.2d
235, 243 (Minn. App. 2003), review denied (Minn. Nov. 25, 2003). While husband’s brief

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insists that the district court abused its discretion by failing to value the litigation interests,
at oral argument to this court, husband candi dly admitted that he did not give the district
court the information that it would need to value those litig ation interests. While we
appreciate husband’s candor on this point, we will not reverse the district court’s failure to
make a finding when husband caused that failure. Id.
Second, the district court found that hus band’s assertion that the value of the
litigation interests to be $0 was not credible, and we defer to a district court’s credibility
determination. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
Third, the district court explained that husband “can[not] prove [the value of the
interests in] the lawsuit is absolutely zero” when the litigation is ongoing and there is some
possibility that husband will obtain a judgment against THCC, and this finding is supported
by the record. Husband’s testimony establishe d that the litigation is ongoing and that he
might receive proceeds from the litigation. While husband testified that the most recent
interim arbitration award “could be the end of the road,” his actions suggested that it is not
yet the end. Husband testified that he had submitted an opinion letter requesting that the
arbitrator’s award be set aside. Husband had also filed a complaint with a legal board in
Canada regarding the arbitrator and arbitrati on award, including the right to appeal the
award to the Supreme Court of Canada. Husband testified that, once he received the results
from the board’s investigation, he would decide whether to continue the litigation. At the
time of trial, husband had not yet received the board’s investigation results, and so the
district court concluded that, based on husba nd’s testimony that he was still taking some
action regarding the litigation, the litigation was ongoing. The district court also found that

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husband’s assertion that he would not recei ve any proceeds from the litigation was not
credible because husband’s Canadian counsel had determined that some claims had not
been fully explored or decide d by the arbitration award, incl uding a review of the family
members’ salaries. Husband’s Canadian co unsel had engaged an accounting firm to
conduct this review. The district court’s finding that the litigation was ongoing and that the
interests therein had a value greater than $0 is therefore not clearly erroneous.
Fourth, contrary to husband’s assertion, valuing the litigation interests at $0 would
not have militated that wife pay husband an equalization payment. While the district court
must divide the parties’ marital property in a manner that is just and equitable, an equitable
division of marital property need not be equal. Sirek v. Sirek, 693 N.W.2d 896, 900 (Minn.
App. 2005). Here, the district court allocate d the parties’ marital property, including
awarding any and all future proceeds from th e litigation to husband, without valuing the
interests therein. The district court recognized that, if it had valued the litigation interests
at $0, it would have awarded wife $62,030. 28 more marital property than it awarded
husband. But the district court also stated that any such differe nce would have been
equitable, and that such a difference would not have warranted an equalization payment
from wife to husband. Thus, even if the litigation interests we re valued at $0, as husband
requested, the result would have remained the same. Under this analysis, if the district court
did err in failing to value the litigation intere st, any error can be ignored as harmless. See
Minn. R. Civ. P. 61 (requiring courts to ignore harmless error). We therefore turn to issues
of whether the district court abused its discretion in dividing the marital property that it did
value and in deciding against ordering an equalization payment.

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II. The district court did not clearly err in its valuation of the receivables.
Husband argues that the district court abus ed its discretion in its valuation of his
receivable. Husband contends th at the value of his receivable should be reduced because
payment of part of his receivable is subject to husband and his brother obtaining a recovery
from the litigation, which, husband argues, is not possible.
The district court’s valuation of an item of property is a finding of fact that an
appellate court will not set aside unless it is clearly erroneous on the record as a whole.
Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn. 2001). We do not require the district court
to be exact in its valuation of assets; “it is only necessary that the value arrived at lies within
a reasonable range of figures.” Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979).
Here, the district court found that the va lue of each party’s receivable is the full
amount owing to the party. It valued husband’s receivable from his brother at $94,739.93.
This valuation is supported by the record. Husband testified that his brother owes him
$76,832.69 for legal fees related to the THCC litigation. Husband argues that the legal fees
cannot be collected from his brother because they will not receive any proceeds from the
litigation. He asserts that the actual value of his receivable is $17,907.24—the amount his
brother owes for a loan unrelated to the THCC litigation. But, as the district court found,
with the support of the record , the THCC litigation is ongo ing and thus there is some
possibility that husband may co llect on his receivable. The di strict court’s valuation of

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husband’s receivable at $94,739.93 is within a reasonable range of figures as supported by
this record.1
III. The district court did not abuse its di scretion by not awarding husband an
equalization payment from wife.
Husband asserts that the district court’s de termination not to require wife to make
an equalization payment to husband was an a buse of discretion because, he contends, it
was based in part on marital fault. A district court may not divide property based on marital
misconduct, but it may consider factors such as the spouse’s contribution to the
preservation of the property. Sirek, 693 N.W.2d at 900 (citing Minn. Stat. § 518.58, subd.
1 (2004)).
The district court found that, if it valued the litigation interests at $0, wife would
owe husband an equalization payment of $31,015.14. But to make the $31,015.14
equalization payment, wife would need to dip into her retirement savings. The district court
determined that that outcome was inequitable because wife began making significant
contributions to her retirement savings—and husband did not—when wife realized that
“she could no longer wait for the lawsuit to settle.” The distri ct court instead divided the
marital estate according to the assets and debts each party had in their name. It concluded
that, although husband will initially end up with less retirement savings, the division was

1 Husband also complains that the district court treated wife ’s receivable differently. He
argues that all of wife’s receivable might be collected while $76,832.69 of his receivable
can never be collected. As we explained above , though, the district court’s determination
that the receivable from husband’s brother is not uncollectable is supported by the record.
The district court treated the receivables in the same manner by assigning each party the
receivable in their name, even though it is not certain that either will be collected.

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equitable because husband’s income is double that of wife’s and thus he has the opportunity
to allocate more funds toward his retirement. Minn. Stat. § 518.58, subd. 1 (2020) (stating
that a party’s income is a relevant statutory factor in dividing the marital estate equitably).
Contrary to husband’s assertion, the dist rict court’s consideration of husband’s
retirement contributions and withdrawals is not a finding of marital fault. Cf. Stassen v.
Stassen, 351 N.W.2d 20, 24 (Minn. App. 1984) (“[A] finding of fault . . . includes a finding
that one spouse was a habitual consumer of alcoholic beverages.”). Rather, it is a statutory
consideration of a party’s contribution to the preservation of the marital estate. Sirek, 693
N.W.2d at 900. The district court consid ered whether husband contributed to the
preservation of the marital estate and found th at he had not because he did not contribute
to his retirement in 2015, he contributed less than the employer-match percent in 2016, and
he liquidated $125,000 of his retirement savings to fund the litigation. Thus, the district
court did not abuse its discretion by concluding that it is equitable to divide the marital
estate according to the assets and debts that each party holds in thei r name rather than
requiring wife to use her retirement savings to pay an equalization payment to husband.
Affirmed.