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This opinion is nonprecedential except as provided by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
A24-0080

In re the Marriage of:

Stacy Ann Bednar, petitioner,
Respondent,

vs.

Craig Richard Bednar,
Appellant.

Filed September 3, 2024
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-FA-19-6160

Linda S.S. de Beer, de Beer & Associates, P.A., Lake Elmo, Minnesota (for respondent)

Matthew J. Gilbert, Patrick A. McDonald, Gilbert Alden Barbosa , PLLC, Burnsville,
Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Bratvold, Judge; and Schmidt,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant-husband challenges the district court’s judgment and decree dissolving
his marriage to respondent -wife. The majority of his challenges stem from the district
court’s determination that the parties’ antenuptial agreement was invalid and
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unenforceable. He also challenges the district court’s imputation of income to husband for
the purposes of its spousal -maintenance and child -support determinations. Finally, he
challenges the district court’s parenting-time and custody determinations . Because the
district court did not err in its parenting-time and custody determinations, we affirm in part.
But because the district court erred in deeming the parties’ antenuptial agreement invalid
and unenforceable, which affected the district court’s determinations regarding the
identification of nonmarital and marital property, the net valuation of nonmarital property,
the dissipation of marital assets, and the attorney-fee award, and erred in imputing income
to husband, which affected the district court’s spousal -maintenance and child -support
determinations, we reverse in part and remand for further proceedings.
FACTS
On June 11, 2005, appellant Craig Richard Bednar (husband) and respondent Stacy
Ann Bednar (wife) were married. During the marriage, the parties had two children, OB,
born in 2006, and EB, born in 2010. EB has special medical, mental -health, and
educational needs.
On June 10, the day before the parties’ wedding, the parties signed an antenuptial
agreement. The parties had negotiated the terms of the agreement over the course of several
months, and e ach party had the assistance of counsel. The comprehensive agreement
outlined the parties’ property rights during the marriage and upon dissolution of the
marriage. It also disclosed husband’s assets, liabilities, and income. Husband possessed
substantial assets prior to the marriage, including an interest in Tiger Oak Publications Inc.,
an interest in Lazzari + Santori Partners LLC, and certain real property.
3
In the antenuptial agreement, h usband listed his net worth as $7,795,658. The
agreement stated that Tiger Oak, Lazzari, and other specified assets were husband’s
“separate property” and defined “separate property” consistent with nonmarital property ,
i.e., acquired before marriage or by gift or inheritance .1 See Minn. Stat. § 518.003, subd.
3b (2022) (defining nonmarital property). The agreement also defined marital property.
The agreement granted each party exclusive use and control of their respective nonmarital
property during the marriage.
The parties a cknowledged that the agreement would determine their rights in the
event of a marriage dissolution. Under the agreement, if a party petitioned for dissolution,
neither party would be obligated to pay a liability incurred by the other in connection with
their respective nonmarital property, unless specified in the agreement. The agreement
granted each party a percentage of the marital property: 65% for husband and 35% for
wife. The agreement granted wife the right to seek spousal maintenance under Minnesota
law aft er ten years of marriage . The agreement also granted wife , after five years of
marriage, a share of the appreciation of husband’s residential real property. Finally, the
agreement granted wife a specified property settlement if the parties remained married for
more than ten years. Specifically, paragraph 4.9 of the antenuptial agreement stated in
part:
If a petition for dissolution, separation or annulment is
served by either party after the date which is more than ten (10)
years after the date of the marriage, as a property settlement
[husband] shall pay to [wife] an amount determined by

1 For consistency with statute and caselaw, we use the term “nonmarital” in our analysis,
instead of “separate.”
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multiplying the percentage identified in the table below by the
amount that equals the difference between the fair market value
of [husband’s] net separate property and the fair market value
of [wife’s] net separate property on the date a petition for
dissolution, legal separation or annulment is served by one
party on the other. The parties agree that the valuation of their
net separate property shall be determined as provided below.

Year Percentage Year Percentage
10 10.0% 28 27.0%
11 10.5% 29 28.5%
12 11.0% 30 30.0%
13 11.5% 31 30.5%
14 12.0% 32 31.0%
15 12.5% 33 31.5%
16 14.0% 34 32.0%
17 15.5% 35 32.5%
18 17.0% 36 34.0%
19 18.5% 37 35.5%
20 20.0% 38 37.0%
21 20.5% 39 38.5%
22 21.0% 40 40.0%
23 21.5%
24 22.0%
25 22.5%
26 24.0%
27 25.5%

The parties agree that the term “net separate property” for
purposes of this paragraph 4.9 shall mean property that is
defined herein as the separate property of a party (other than
residential real estate) reduced by the amount of any
mortgages, liens or other secured liabilities of a party, and
reduced by the then prevailing capital gains tax, if any, that
would be imposed by federal and state taxing authorities on the
sale of such property if such property were sold by a party [.]
The parties further agree that the amount of any property
settlement provided herein shall be based on the fair market
value of [husband’s] net separate property (other than
residential real estate) and [wife’s] net separate property on the
date a petition for dissolution, legal separation or annulment is
served by either party on the other. [The parties] further agree
that any controversy solely arising out of the valuation of their
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net separate property shall be settled by arbitration in
Minnesota, in accordance with the commercial Arbitration
Rules of the American Arbitration Association . The decision
rendered by the arbitrator shall be final and binding, and
judgment upon the award rendered by the arbitrator may be
entered by any court having jurisdiction thereof. Arbitration
shall be conducted by a single arbitrator chosen by the
American Arbitration Association from its National Roster.
The arbitrator shall have no other authority or jurisdiction
other than that of determining the value of [husband’s] net
separate property and [wife’s] net separate property.

(Emphasis added.)
Under the antenuptial agreement, each party was responsible for their own legal fees
in a dissolution proceeding. However, if a party challenged the validity of the agreement
and did not prevail, that party would be responsible for the defending party’s attorney fees.
The parties agreed that they had “thoroughly explored the substantive fairness” of the
agreement and were aware of “possible future changes in their health, lifestyle and
earnings.” Paragraph 8.2 of the agreement provided that “[i]f any par t of [the agreement]
is held unenforceable, the remaining parts of [the agreement] shall remain enforceable.”
On September 16, 2019, wife petitioned to dissolve the marriage . In her petition,
she challenged the validity of the antenuptial agreement, arguing that it was procedurally
and substantively unfair. In his counter-petition, husband asserted that the agreement was
enforceable and requested a division of the parties’ assets in accordance with the
agreement. On January 13, 2021, husband moved the district court to compel arbitration
in accordance with the terms of the agreement. T he district court deemed the motion
untimely. On January 20, 2021, husband again moved to compel arbitration. The district
court acknowledged the motion but did not rule on it.
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The parties agreed to an adjudication of the dissolution proceeding based on written
submissions. On November 15, 2023, following a document trial, the district court filed
an order dissolving the parties’ marriage and entered judgment.2
In considering the validity of the parties’ antenuptial agreement, the district court
applied Minn. Stat. § 519.11 (2022) and the common law. The court determined that the
parties’ agreement satisfied the requirements of section 519.11. But as to the common law,
the court determined that the agreement was not procedurally fair because it was procured
under duress. The court also determined that the agreement was substantively unfair,
invalid, and unenforceable.
In addressing custody and parenting time for the minor children, the court found
that husband was in poor health, which caused the children to be in “physical danger.” For
example, husband had struggled to breathe while the children were in his care, including
while driving one of the children in his vehicle . The court also found that husband had
“domestically abused” wife. The district court awarded wife sole legal and sole physical
custody of the children and limited husband’s parenting time to every Saturday from 10:00
a.m. to 5:00 p.m.
In addressing the parties’ incomes for purposes of child support and maintenance,
the court found that wife was self -employed as a therapist and earned $3,200 per month

2 The initial findings and order were prepared by a referee of the Fourth Judicial District
and later approved by a judge of that court. See Minn. Stat. § 484.65, subd. 9 (2022)
(governing the family court division in the Fourth Judicial District and providing that “[a]ll
recommended orders and findings of a referee shall be subject to confirmation by [a]
district court judge”).
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and that husband was unemployed, though he was previously the owner and chief executive
officer of Tiger Oak and sole member of Lazzari. The court found that Tiger Oak entered
Chapter 11 bankruptcy proceedings during the pendency of the dissolution case, that those
bankruptcy proceedings were ultimately settled via stipulation, and that husband spent, by
his own calculations, $746,905 in attorney fees on the bankruptcy proceeding and another
$600,000 to settle that matter. The court imputed income of $30,000 per month to husband.
The court found that husband had unknown monthly expenses and that wife’s monthly
expenses were $17,281. The court ordered husband to pay wife $8,000 per month in
permanent spousal maintenance and $2,369 per month in child support.
In dividing the marital estate, the court found that the value of the estate at the time
of the decree was approximately $1.5 million and that it had significantly decreased
because husband sold off a majority of the assets during the bankruptcy proceeding. The
district court ordered husband to pay wife a property equalizer in the amount of $2,501,978
and awarded wife both need- and conduct-based attorney fees in the amount of $247,145.
Husband appeals.
DECISION
I.
Husband contends that the district court erred by deeming the antenuptial agreement
unenforceable.
Antenuptial agreements must be both procedurally and substantively fair. Kremer
v. Kremer, 912 N.W.2d 617, 621 -22 (Minn. 2018). Until 1979, antenuptial agreement s
8
were solely governed by the common law. Id. at 622. In 1979, the legislature enacted
section 519.11,3 which modified the common law regarding procedural fairness. Id.
Whether an antenuptial agreement is procedurally fair presents a mixed question of
law and fact. Id. at 627. Whether an antenuptial agreement is substantively fair also
presents a mixed question of law and fact. See McKee-Johnson v. Johnson, 444 N.W.2d
259, 261 (Minn. 1989) (remanding for “ further findings respecting substantive fairness
requirements both at the inception and at the time of the dissolutio n”), overruled on other
grounds by Kremer, 912 N.W.2d at 626.
When the facts are undisputed, the validity of an antenuptial agreement presents a
question of law, which we review de novo. Pollock-Halvarson v. McGuire, 576 N.W.2d
451, 454 (Minn. App. 1998), rev. denied (Minn. May 28, 1998). “ Ordinarily, the burden
of proving that an antenuptial agreement is unfair and therefore invalid is on the challenger
of the agreement . . . ,” unless a presumption of fraud arises. Kremer, 912 N.W.2d at 627
n.7.
Procedural Fairness
“The common-law standard for procedural fairness is whether an agreement was
equitably and fairly made.” Id. at 622 (quotation omitted). An antenuptial agreement
executed after August 1, 1979, is procedurally valid under section 519.11, subdivision 1,
if two conditions are satisfied: (1) ‘“there is a full and fair disclosure of the earnings and

3 The statute governing antenuptial agreements was recently revised. See 2024 Minn. Laws
ch. 101, art. 3, § 1, at 718-21. Those revisions are inapplicable here because they d id not
take effect until August 1, 2024, “and appl[y] to agreements executed on or after that date.”
See id. at 721.
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property of each party,’” and (2) ‘“the parties have had an opportunity to consult with legal
counsel of their own choice.”’ Id. (quoting Minn. Stat. § 519.11, subd. 1).
The district court determined that the requirements of section 519.11 were satisfied,
but it determined that the agreement was procedurally unfair under the common -law
standard, which considers four factors:
(1) whether there was fair and full disclosure of the parties ’
assets; (2) whether the agreement was supported by adequate
consideration; (3) whether both parties had knowledge of the
material particulars of the agreement and how those provisions
impacted the parties ’ rights in the absence of the agreement;
and (4) whether the agreement was procured by an abuse of
fiduciary relations, undue influence, or duress.

Id. at 625.
In determining that the antenuptial agreement was procedurally unfair under the
common law, the district court reasoned solely that the circumstances here are similar to
those that supported a finding of duress in Kremer. In that case, the supreme court
determined that wife was under duress when she signed an antenuptial agreement ,
reasoning that she signed three days before a destination wedding. Id. at 628. The facts
regarding the antenuptial agreement in Kremer were as follows:
For almost three years, Robbie and Michelle lived
together as a couple on a farm in Fulda, Minnesota. Robbie
owned and operated a farming enterprise. Michelle had three
children from a previous marriage. Robbie told Michelle that
he would require an antenuptial agreement if they ever
married. Michelle was ambivalent about such an agreement,
and the parties did not discuss or negotiate any terms.
In August 2000, Robbie and Michelle decided to marry.
They scheduled a destination wedding in the Cayman Islands
for March 2001.
10
As the wedding approached, and without telling
Michelle, Robbie contacted an attorney to prepare an
antenuptial agreement. Robbie had a minimum of six contacts
with the attorney over the course of at least a month. Without
Michelle’s knowledge, he furnished the attorney with copies of
her tax returns.
On February 26, 2001, at his attorney ’s office, Robbie
signed the antenuptial agreement (“the Agreement”). Later
that day, he presented the Agreement to Michelle. Robbie
made clear that if Michelle did not sign the Agreement, the
wedding was off. The couple was scheduled to leave for the
Cayman Islands just three days later. Family members had
paid for their lodging and airfare to the destination, and some
were already en route.
After being presented with the Agreement, Michelle
attempted unsuccessfully to meet with the attorney who
represented her in a previous divorce. On February 28, she
met with a different attorney with whom she had no experience.
The attorney explained the terms of the Agreement, her rights
under the law, and the potential impact of the Agreement upon
dissolution of the marriage or Robbie’s death. After receiving
legal advice, Michelle signed the Agreement. The next day,
the couple left for the Cayman Islands to be married.

Id. at 620 (emphases added).

The Kremer court concluded that the antenuptial agreement was procedurally unfair
because it was procured by duress and because there was inadequate consideration, that is,
the agreement did not sufficiently provide for Michelle, the financially disadvantaged
spouse. Id. at 627-28. As to duress, the supreme court explained:
As the district court found, “there was an overreaching”
because Robbie “intentionally created a situation where
[Michelle] was pressured/coerced into signing” the
Agreement. This finding is well -supported by the record.
Michelle’s free will was overcome by Robbie ’s threat to call
off the wedding and the limited amount of time that Michelle
had to consider the Agreement, consult with an attorney, and
decide whether to sign it or not. Robbie knew that Michelle
had reservations about signing an antenuptial agreement and
11
that no terms had been negotiated. She was completely in the
dark for more than a month while Robbie received legal advice
and prepared the Agreement. Robbie presented Michelle with
his signed Agreement a mere three days before they were
scheduled to depart for their destination wedding. As a result,
Michelle was left to scramble to find an attorney, with whom
she met on the day before the couple’s departure.

Id. at 628 (emphases added).
The district court’s explanation of its reliance on Kremer to find duress is limited to
the following:
The [supreme court] found that [the wife in Kremer]
was under duress because the antenuptial agreement was
signed just three days prior to a destination wedding. The
[c]ourt makes a similar finding in the present matter, where the
parties signed the prenuptial agreement the day before their
wedding. The court finds that [w]ife did not have a meaningful
choice whether or not to sign the antenuptial agreement.

“Duress is coercion by means of threats or other circumstances that destroy the
victim’s free will and compel her to comply with some demand of the party exerting the
coercion.” Id. “The test is not the nature of the threats, but rather whether or not the victim
really had a choice, whether the victim had the freedom of exercising her will.” Id.
(quotation omitted).
As to duress, this case is readily distinguishable from Kremer, in which the husband
secretly met with an attorney six times over the course of one month to prepare an
antenuptial agreement , surprised wife with the agreement three days before their
destination wedding, and threatened to cancel the wedding if wife did not sign. Id. at 620.
Unlike Kremer, wife in this case acknowledged in an affidavit that husband told her
that he wanted an antenuptial agreement “in the spring of 2005” and that in March of 2005,
12
both parties “retained lawyers and began working on the document. ” Wife affirmed that
the parties initially scheduled their wedding for April 2005 but cancelled that date because
they could not reach an agreement and assumed that they would “be able to work out a fair
agreement with the extra time.” Wife further stated:
My lawyers continued to tell me that [husband] was not
agreeing to any of their terms, making the negotiations very
one-sided and unproductive. However, the wedding date
continued to get closer, and I was planning all of the details of
the day. I essentially planned the wedding with little help from
[husband].
Finally, the day before the wedding, time had run out. I
remember being extremely uncomfortable that day while
speaking with my attorneys. They told me that the agreement
may not be in my best interests because [husband] would not
allow for meaningful changes to the document. I did not allow
myself to consider canceling the wedding; that did not feel like
an option for me. We had paid for nearly the entire thing, and
all the smallest details had been taken care of. I had spent the
last few months pouring work into planning and organizing the
event. We had many out-of-town guests flying in, particularly
from surrounding states and Texas and California. Many
guests had already arrived the day before the wedding, for the
rehearsal and pre -wedding festivities that were occurring just
hours after meeting with the attorneys. The actual wedding
reception was set up the day before, so at the time I was signing
the prenuptial agreement the tent had been set up, the rentals
were in process of going up, and all the final details were
coming together.
Further, my guests had purchased hotel rooms, flights,
gifts, and more. It did not feel like I had a “choice” to cancel
the wedding, but I knew that [husband] would do it in a
heartbeat if the prenuptial agreement was not signed. I
remember thinking of his temper, and that he would be
extremely angry if I did not sign the agreement the way it read.
The last thing I wanted was to anger him the day before our
wedding. In hindsight, [husband] began showing his true
colors throughou t the prenuptial agreement negotiation
process. He clearly wanted to protect himself and was not
thinking about what I was giving up by signing the agreement.
13
I signed the agreement less than 12 hours prior to our
ceremony, not realizing the severe effect it could have on my
future financial well-being.

(Emphases added.)

Unlike Kremer, wife’s own affidavit shows that she had sufficient time to discuss
the agreement with her lawyers and to consider her options . Although wife ultimately
signed the antenuptial agreement the day before the wedding, she acknowledge d that she
retained counsel several months before the wedding to represent her in the antenuptial
negotiations, cancelled an earlier wedding date because the parties could not reach an
agreement, actively engaged in negotiations with husband, and was repeatedly advised by
her lawyers that husband was standing firm on his demands and that the agreement may
not be in her best interest. Wife nonetheless continued to make detailed wedding plans
over the course of several months, despite the parties’ inability to agree on the terms of the
antenuptial agreement and despite wife’s knowledge that husband insisted on such an
agreement. Again, the record reflects that wife was aware months before the ultimate
wedding date that husband was unwilling to marry without an antenuptial agreement.
Wife argues that we must defer to the district court’s duress finding . A factual
finding is clearly erroneous if it is “manifestly contrary to the weight of the evidence or not
reasonably supported by the evidence as a whole.” In re Civ. Commitment of Kenney, 963
N.W.2d 214, 221 (Minn. 2021) (quotation omitted). The district court’s finding that
“[w]ife did not have a meaningful choice whether or not to sign the antenuptial agreement”
is not reasonably supported by the evidence as a whole, as explained above. Moreover, the
district court erred , as a matter of law, in concluding that the undisputed facts here
14
constituted duress as that term is defined in caselaw and in reasoning that the circumstances
here are comparable to the coercive circumstances in Kremer. In sum, wife failed to prove
that the antenuptial agreement was procedurally unfair. See Kremer, 912 N.W.2d at 627
n.7 (stating, “[o]rdinarily, the burden of proving that an antenuptial agreement is unfair and
therefore invalid is on the challenger of the agreement”).
Substantive Fairness
As to substantive fairness, the district court determined that the agreement was
unconscionable at the time of enforcement because wife would receive significantly less
money than she would have expected to receive when she entered into the antenuptial
agreement.
Antenuptial agreements must be substantively fair at the time of execution and at
the time of enforcement. See McKee-Johnson, 444 N.W.2d at 267. “Substantive fairness
guards against misrepresentation, overreaching and unconscionability.” Pollock-
Halvarson, 576 N.W.2d at 455. When evaluating substantive fairness at the time of
enforcement, we consider whether a change in the parties’ circumstances after execution
would render enforcement of the agreement “oppressive and unconscionable.” McKee-
Johnson, 444 N.W.2d at 267. If the premises upon which the antenuptial agreement was
based “have so drastically changed that enforcement would not comport with the
reasonable expectations of the parties at the inception to such an extent that to validate ”
the agreement at the time of enforcement “would be unconscionable,” then the agreement
is substantively unfair. Id. In considering the substantive fairness of an antenuptial
15
agreement, courts must balance the freedom of consenting, informed adults to contract and
substantive fairness. See In re Est. of Aspenson, 470 N.W.2d 692, 696 (Minn. App. 1991).
Here, the district court found that the agreement was substantively fair at the time
of execution. In arriving at that determination, the district court considered application of
paragraph 4.9 of the antenuptial agreement (quoted in the facts section of this opinion),
which obligated husband to pay wife a percentage of “the difference between the fair
market value of [husband’s] net [nonmarital] property and the fair market value of [wife’s]
net [ nonmarital] property, on the date a petition for dissolution, legal separation or
annulment is served by one party on the other.” As applied here, after 14 years of marriage,
wife was entitled to 12% of the difference between those two sums.
The district court reasoned that when the parties signed the antenuptial agreement,
husband’s net worth was $7,795,658 and that wife would have expected to receive at least
$935,478 of husband’s nonmarital property under the agreement if husband’s financial
circumstances did not change . The district court further reasoned that wife was also
entitled to receive 35% of the parties’ marital property. The court found that “the terms of
the antenuptial agreement, at the time of signing, would otherwise be conscionable.”4
However, the district court determined that the antenuptial agreement was
unconscionable at the time of enforcement as a result of “extreme unforeseeable

4 The district court’s finding that the terms “would otherwise be conscionable” is unclear
because the district court’s findings do not suggest or explain that any term in the
agreement was unconscionable at the time of execution. Thus, we do not understand the
phrase to somehow qualify the district court’s finding that the terms were conscionable at
the time of execution.
16
developments that occurred during the marriage due exclusively to [h]usband’s conduct,”
including the reduction in husband’s net worth, husband’s dissipation of marital assets, and
husband’s decision to file bankruptcy for Tiger Oak, which took a toll on the parties’
finances. The district court therefore f ound that the agreement was “invalid and
unenforceable.”
The district court’s finding that the agreement was unconscionable at the time of
enforcement was, once again, based on its application of paragraph 4.9 of the antenuptial
agreement, which provided that wife would receive a percentage of “the difference between
the fair market value of [husband’s] net [nonmarital] property and the fair market value of
[wife’s] net [nonmarital] property, on the date a petition for dissolution, legal separation
or annulment is served by one party on the other .” (Emphasis added.) But the district
court’s application of that provision was inconsistent with its clear language. Under
paragraph 4.9, the operable valuation date for division of nonmarital property was the “date
a petition for dissolution, legal separation or annulment [was] served,” which in this case
was September 1 6, 2019. Despite that language, the distri ct court based its substantive -
fairness determination on the value of the marital estate a t the time of document trial in
2023, four years after the relevant valuation date (i.e., service of the dissolution petition ).
Even though the distri ct court correctly indicated that it needed to determine “whether
enforcing the prenuptial agreement would be substantively fair if enforced today,” it failed
to recognize that application of the relevant term was based on the value of the parties ’
nonmarital assets in 2019, and not on the value in 2023.
17
Again, the district court found that at the time of execution, wife would have
expected to receive at least $935,478 of husband’s nonmarital property under the
agreement if husband’s financial circumstances did not change. The district court
compared that recovery with the amount that wife would receive under the agreement at
the time of the document trial in 2023 and found that wife would receive only $180,000
under the terms of the agreement, calculated as follows: 12% of $1.5 million, which the
district court found was the “total estate.”
But the correct valuation date for determining wife’s share of husband’s nonmarital
property at the time of enforcement was September 16, 2019, the date on which wife served
her petition for dissolution on husband. The district court found that in October 2019,
approximately one month after wife filed for dissolution, the parties still had assets in
excess of $6 million, excluding the unknown value of Tiger Oak, which did not enter into
bankruptcy proceedings until after wife filed for dissolution.
In sum, t he district court erred by failing to use the correct valuation date when
determining that the antenuptial agreement was substantively unfair at the time of
enforcement. And given the significant disparity between the district court’s findings
regarding the value of the estate on the correct date (over $6 million, plus the unknown
value of Tiger Oak) and the value of the estate on the incorrect 2023 date ($1.5 million),
the error prejudicially affect ed the mathematical portion of the district cour t’s
determination that the agreement was substantively unfair. See Bloom v. Hydrotherm, Inc.,
499 N.W.2d 842, 845 (Minn. App. 1993) ( stating that on appeal, the appellant has the
burden to show error and prejudice), rev. denied (Minn. June 28, 1993).
18
On this record, the district court erred in deeming the antenuptial agreement
procedurally and substantively invalid. The agreement was valid, and the district court
should have enforced it. The district court’s failure to do so affected several components
of the dissolution judgment and decree, which husband challenge s. We address each in
turn.
A.
Husband argues that the district court erred by denying his nonmarital claims.
Whether property is marital or nonmarital is a question of law which we review de novo,
but we defer to the district court ’s underlying findings of fact unless they are clearly
erroneous. Gill v. Gill , 919 N.W.2d 297, 301 (Minn. 2018). All property acquired by
either spouse during the marriage is presumed to be marital property. Id. at 302 . To
overcome this presumption, a spouse has the burden of proving by a preponderance of the
evidence that the property is nonmarital. Id. Nonmarital property includes property
acquired before the marriage. Minn. Stat. § 518.003, subd. 3b(b).
Here, the district court concluded that it was “unclear” what husband considered to
be his nonmarital property. We disagree. The antenuptial agreement defines the assets
that husband possessed prior to the marriage as his separate, nonmarital property, and
husband is therefore entitled to retain a portion of those assets, as set forth in the agreement.
B.
Husband argues that the district court erred by refusing to order arbitration in
accordance with the arbitration clause in the antenuptial agreement. Again, the arbitration
clause states that “ any controversy solely arising out of the valuation of [the parties’] net
19
separate property shall be settled by arbitration” and that “the arbitrator shall have no other
authority or jurisdiction other than that of determining the value of the [parties’] net
[nonmarital] property.”
We review the application of an arbitration clause de novo. Onvoy, Inc. v. SHAL,
LLC, 669 N.W.2d 344, 349 (Minn. 2003). Whether a party may be compelled to arbitrate
depends on the language of the arbitration clause and other related terms. Id. “When a
party moves to compel arbitration, the [district] court is limited to determining whether an
arbitration agreement exists and, if so, whether the dispute falls within the scope of that
agreement.” Churchill Env’t & Indus. Equity Partners, L.P. v. Ernst & Young, L.L.P., 643
N.W.2d 333, 337 (Minn. App. 2002). Unless a district court finds that there is no
enforceable agreement to arbitrate, “it shall order the parties to arbitrate.” Minn. Stat.
§572B.07(a) (2022).
Under the plain language of the antenuptial agreement , “any controversy solely
arising out of the valuation of [the parties ’] net separate property shall be settled by
arbitration,” but the arbitrator’s au thority is limited to “ determining the value of
[husband’s] net separate property and [wife’s] net separate property. ” See Glacier Park
Iron Ore Props., LLC v. U. S. Steel Corp., 948 N.W.2d 686, 697 (Minn. App. 2020) (relying
on “the plain language of the parties’ agreement to arbitrate” to determine wh ich disputes
were subject to mandatory arbitration), aff’d, 961 N.W.2d 766 (Minn. 2021). Any dispute
regarding the valuation of the parties’ net nonmarital property must be resolved in
arbitration. All other issues are properly determined by the district court.

20
C.
Husband argues that the district court erred in determining that he dissipated marital
assets. Parties to a dissolution owe each other “a fiduciary duty . . . for any profit or loss
derived by the party, without the consent of the other, from a transaction or from any use
by the party of the marital assets.” Minn. Stat. § 518.58, subd. 1a (2022). If the court finds
that one party to a marriage improperly “transferred, encumbered, concealed, or disposed
of” marital assets during the pendency of the dissol ution, the district court shall attribute
the dissipated assets to the party who did so. Id. The statute establishes a four-part test for
determining whether a party inappropriately transferred, encumbered, concealed, or
disposed of marital assets: (1) a transfer or disposition of marital assets; (2) without the
other party’s consent; (3) “in contemplation of commencing, or during the pendency of,
the current dissolution . . . proceeding”; and (4) the transfer or disposition was not “in the
usual course of business or for the necessities of life.” Id. The burden of proof is on the
party alleging a dissipation. Id.
Whether a party has dissipated marital assets is a question of fact. See Minn. Stat.
§ 518.58, subd. 1a (“If the court finds . . . .” (emphasis added)). Appellate courts review a
district court ’s factual findings for clear error, viewing the evidence in the light most
favorable to the district court ’s findings and reversing only if the record “requires the
definite and firm conviction that a mistake was made.” Vangsness v. Vangsness , 607
N.W.2d 468, 474 (Minn. App. 2000).
The district court found that husband “dissipated a substantial amount of assets prior
to, and during, this proceeding.” The court found that husband “was not merely spending
21
money for the necessities of life or to maintain marital property” and that “[d]ue to his
unwillingness to be forthcoming about his finances, it is still unclear exactly how he spent
down the marital and non -marital properties, with the exception of the exorbitantly
expensive bankruptcy proceeding.” The district court also found that the value of the estate
at the time of the decree was approximately $1.5 million and that husband had been
“spending freely” during the proceedings. It ultimately concluded that husband dissipated
$2,501,978.
By definition, only marital assets can be dissipated. Minn. Stat. § 518.58, subd. 1a
(describing fiduciary duty with reference to only “marital assets”). Yet the district court’s
dissipation findings refer to “martial and non -marital properties.” Any finding of
dissipation must be limited to marital property and must exclude the nonmarital property
identified in the antenuptial agreement.
D.
Husband argues that the district court erred by awarding wife need -based and
conduct-based attorney fees. In a dissolution proceeding, the district court is authorized to
award both need - and conduct-based attorney fees. A district court “shall” award need -
based attorney fees if it finds that (1) “the fees are necessary for the good faith assertion of
the party’s rights . . . and will not contribute unnecessarily to the length and expense of the
proceeding,” (2) the party ordered to pay the fees “has the means to pay them,” and (3) the
party awarded the fees “does not have the means to pay them.” Minn. Stat. § 518.14,
subd. 1 (2022). A district court may, “in its discretion,” award “additional” conduct-based
22
attorney fees “against a party who unreasonably contributes to the length or expense of the
proceeding.” Id.
Wife sought both types of attorney fees, and the district court found that “a needs -
based and a conduct-based award is merited.” The court noted that wife d id not have
significant assets and owed $200,000 in attorney fees “stretching back to 2019.” The court
found that husband had the means to pay those fees and unreasonably contributed to the
length and expense of the proceeding. The court found that husband had “not negotiated
in good faith,” “decimate[d] the marital and any non-marital estate,” “refused to cooperate
with discovery,” “ignored court orders,” “mismanaged his business,” and “roped” wife into
the bankruptcy proceeding. The court ultimately awarded wife $247,145 in attorney fees.
Under the parties’ antenuptial agreement, each party was responsible for their own
legal costs to terminate the marriage , “without contribution from the other party .”
However, if a party challenged the validity of the agreement and did not prevail, that party
would be responsible for the defending party’s attorney fees. As a general matter,
Minnesota upholds principles of freedom of contract, and “parties are generally free to
allocate rights, duties, and risks.” Lyon Fin. Servs. v. Ill. Paper & Copier Co., 848 N.W.2d
539, 545 (Minn. 2014). “In Minnesota, attorney fees are recoverable if there is a specific
contract provision permitting recovery.” Kaeding v. Auleciems , 886 N.W. 2d 658, 666
(Minn. App. 2016). “Courts are not warranted in interfering with the contract rights of
parties as evidenced by their writings which purport to express their full agreement.” Cady
v. Bush, 166 N.W.2d 358, 362 (Minn. 1969).
23
Because the antenuptial agreement governed attorney fees, any award of such fees
must be consistent with the terms of the agreement.5
II.
Husband contends that the district court erred “in imputing income to [him]
consistent with income from a non -operational business and in light of the findings
regarding [his] health.”
Minn. Stat. § 518A.32, subd. 1 (2022), requires the imputation of income in child -
support matters “[i]f a parent is voluntarily unemployed, underemployed, or employed on
a less than full-time basis, or there is no direct evidence of any income.” “[I]t is rebuttably
presumed that a parent can be gainfully employed on a full -time basis. ” Minn. Stat.
§ 518A.32, subd. 1. However, “[a] parent is not considered voluntarily unemployed,
underemployed, or employed on a less than full -time basis upon a showing by the parent
that . . . the unemployment, underemployment, or employment on a less than full -time
basis is because a parent is physically or mentally incapacitated.” Id., subd. 3 (2022).
As to the imputation of income in the spousal-maintenance context, in appropriate
circumstances, a district court may estimate an obligor’s income. See LeRoy v. LeRoy, 600
N.W.2d 729, 733 (Minn. App. 1999) (“A district court may consider past earnings and
earning capacity to estimate an obligor ’s future income.”), rev. denied (Minn. Dec. 14,
1999); see also Fulmer v. Fulmer , 594 N.W.2d 210, 213 (Minn. App. 1999) (“[District]
courts may use earning capacity to measure income if it is either impracticable to determine

5 Issues, if any, regarding application of the antenuptial provisions governing attorney fees
may be raised and decided in the district court on remand.
24
an obligor ’s actual income or the obligor ’s income is unjustifiably self -limited.”). A
district court may also impute income to an obligor if it finds the obligor has acted in bad
faith in limiting his income. Melius v. Melius, 765 N.W.2d 411, 416 (Minn. App. 2009);
but see Passolt v. Passolt, 804 N.W.2d 18, 19, 24 (Minn. App. 2011) (stating that a district
court “may consider a maintenance recipient ’s prospective ability to become fully or
partially self-supporting without making a finding that the recipient has acted in bad faith
to remain unemployed or underemployed”), rev. denied (Minn. Nov. 15, 2011).
Whether to impute income to child -support and maintenance obligors is
discretionary. See Putz v. Putz , 645 N.W.2d 343, 353 (Minn. 2002) (concluding that the
child-support magistrate abused his discretion by failing to impute income ); Walker v.
Walker, 553 N.W.2d 90, 97 (Minn. App. 1996) (noting that the district court did not abuse
its discretion by imputing income in maintenance context).
The district court determined that husband was voluntarily unemployed and imputed
an income of $30,000 a month to husband for purposes of calculating child -support and
spousal maintenance, noting that in husband’s affidavit, he said he was trying to restar t a
business and that husband’s actions caused the “liquidation” of Tiger Oak and Lazzari.
The district court found that husband was fired from Tiger Oak by the bankruptcy creditors
and trustee and that his loss of employment was “his own doing.” Husband argues that the
district court’s own findings show that he was not voluntarily unemployed and that those
findings instead show that he was in poor health and physically incapacitated. We agree.
25
The district court made detailed findings regarding husband’s significant health
problems and relied on those findings t o determine that it was not safe for the children to
be in husband’s custody. The district court found as follows:
[Husband] is in poor health. He has radiation fibrosis
affecting his throat, causing him to aspirate when he eats.
Doctors have recommended a tracheotomy and a feeding tube
to prolong his life, but [he] has continually resisted and has no
plans to follow the doctors’ advice. [Husband] also suffers
from hearing loss, vision impairment, headaches, freque nt
pneumonia, collapsing of his legs and difficulty walking. The
children have witnessed him falling over because he is unable
to walk, falling asleep at the dinner table, and being unable to
breathe. [He] often neglects to properly wear his hearing aids
so the children have a difficult time communicating with him
when they are in his care.
In February of 2023, the children notice d [husband]
struggling to breathe and walk. They became frightened,
called [wife], and begged her to take [him] to the hospital.
During the hospital visit, doctors recommended that [he]
consider hospice care.
The children have witnessed [husband] coughing into
the sink in the middle of the night. The children have
witnessed [him] struggling to breathe, which has happened at
least one time while [he] was driving [OB] in the car. The
[c]ourt finds that due to [his] health concerns, and his apparent
aversion to following recommendations from doctors, the
children are in physical danger when in [his] care for an
extended period of time.

. . . .

[Husband’s] physical health has negatively impacted
his ability to parent the children. [He] has spells of not being
able to breathe. This has happened in the presence of both
children, and [wife] testified that it happened when [he] was
driving [OB] in his car. . . . At other times [he] struggles to
walk and has passed out at the dinner table and in other places.
A separate incident happened where [he] passed out while [he]
was alone with [OB] on vacation in Texas. This event was
26
frightening for [OB]. He begged [his father] to go to the
hospital, but he refused.
[Husband’s] physical health impacts his ability to be an
effective parent and also creates significant safety concerns
during his parenting time. [He] suffers from hearing loss and
refuses to consistently wear his hearing aids. . . . [He] has a
difficult time hearing the children, and becomes angry when he
misunderstands them. The difficulty in communication is one
thing, but [his] refusal to mitigate the issue or work on his
communication with the ch ildren is concerning. [His]
difficulty breathing is f rightening for the children and has led
them to believe he was going to die on multiple occasions. The
children have begged [him] to take better care of himself, and
[he] refuses. It is not in the children’s best interests to be in a
“care taker” position with their father, especially when [he]
refuses to take steps to maintain his health as recommended by
his doctors.

. . . .

First, [husband’s] physical health is so poor that he may
not be physically equipped to continue caring for the children,
especially considering [EB’s] unique needs. Because [he]
chooses not to follow the advice of his doctors, there is a very
real possibility that [his] health will continue to worsen. It is
not in the children’s i nterests to be placed in the role of
caregivers to [him].

. . . .

The [c]ourt finds it would be harmful to the children’s
wellbeing and development to spend substantial time with
[their father], given [his] unaddressed anger and health. The
[c]ourt finds this factor weighs in favor of [wife’s] request for
sole legal and physical custody, as well as for a limited
parenting time schedule for [husband].

The district court’s findings regarding husband’s poor health are inconsistent with
its imputation of income based on voluntary unemployment. A district court abuses its
discretion if its decision “is against logic and the facts on record.” Rutten v. Rutten, 347
27
N.W.2d 47, 50 (Minn. 1984). On this record, the district court’s imputation of income of
$30,000 a month to husband was against logic and the facts found by the district court.
And that error affected the district court’s calculation of spousal maintenance and child
support.
III.
Husband argues that the district court erred in calculating his child -support
obligation because the district court failed to consider wife’s spousal-maintenance award.
To determine the presumptive child-support obligation of one parent to another, the
court must “determine the gross income of each parent under section 518A.29.” Minn.
Stat. § 518A.34 (2022). Under Minn. Stat. § 518A.29(a) (2022), income “includes any
form of periodic payment to an individual, including, but not limited to . . . spousal
maintenance received under a previous order or the current proceeding.” And under Minn.
Stat. § 518A.29(g) (2022), “Spousal maintenance payments ordered by a court . . . to the
other party as part of the current proceeding are deducted from other periodic payments
received by a party for purposes of determining gross income.”
An award of child support rests within the broad discretion of the district court.
Rutten, 347 N.W.2d at 50. “There must be a clearly erroneous conclusion that is against
logic and the facts on record before this court will find that the [district] court abused its
discretion.” Id.
The district court ordered husband to pay $2,369 per month in child support. In
determining husband’s child-support obligation, the district court used a monthly income
of $2,000 for wife, despite separately finding that she had a monthly income of $3,200,
28
reasoning that her “distributions” were “not guaranteed.” The district court also awarded
wife $8,000 per month in spousal maintenance.
Husband argues that the district court should have included his $8,000 per month
spousal-maintenance obligation in wife’s income when calculating child support . H e
further argues that there is no support for the district court’s finding that wife earns only
$2,000 per month for purposes of child -support calculations because the district court
specifically found that wife had a monthly income of $3,200 per month from her
employment.
Wife argues that this issue is not properly before us because husband has raised it
for the first time on appeal. But the issue of child support was raised and determined by
the district court. And in an appeal from a trial in which no posttrial motion was made, as
is the case here , we must determine whether the record supports the findings of fact and
whether those facts support the legal conclusions, and we review substantive questions of
law that were properly raised during trial. Alpha Real Est. Co. of Rochester v. Delta Dental
Plan of Minn ., 664 N.W.2d 303, 308 -311 (Minn. 2003) . The application of a statute to
undisputed facts is an issue of law reviewed de novo. Brodsky v. Brodsky , 733 N.W.2d
471, 477 (Minn. App. 2007). Because the issue of child support was properly raised and
decided by the district court in the underlying document trial, the legal issue of whether the
district court properly applied the relevant statute in calculating support is properly before
us.
In Haefele v. Haefele , the supreme court stated, “ Although we have had few
occasions to interpret section 518A.29(a), we have suggested that the [l]egislature’s use of
29
the term ‘payment’ in this section generally means that a benefit must be actually received
by the parent, as opposed to merely vested or owed, in order to constitute income. ” 837
N.W.2d 703, 710 (Minn. 2013). Under that reasoning, we cannot say that the district court
erred by not i ncluding spousal-maintenance payments ordered, but not yet r eceived by
wife, when calculating her income for purposes of child support.
However, we have concluded that the district court erred in imputing income of
$30,000 a month to husband, which affected its child-support determination. Moreover,
the district court did not adequately explain its two separate findings on the amount of
wife’s monthly income: $2,000 and $3,200. Under the circumstances, the child -support
determination cannot stand.
IV.
Husband contends that t he district court erred in its custody and parenting -time
determinations.
Minn. Stat. § 518.17 (2022) governs a d etermination of child custody and requires
the district court to evaluate the best interests of the child. Minn. Stat. § 518.17, subd. 1.
In doing so, a district court “must consider and evaluate all relevant factors,” including 12
statutory factors. Id., subd. 1(a)(1)-(12). When considering the statutory best -interests
factors, a district court “must make detailed findings on each of the factors . . . based on
the evidence presented and explain how each factor le d to its conclusions and to the
determination of custody and parenting time.” Id., subd. 1(b)(1). This court applies a clear-
error standard of review to a district court’s findings on factual issues relevant to a custody
decision and an abuse -of-discretion standard of review to the district court’s ultimate
30
custody decision. Pikula, 374 N.W.2d at 710; Schallinger v. Schallinger, 699 N.W.2d 15,
19 (Minn. App. 2005), rev. denied (Minn. Sept. 28, 2005).
A district court has broad discretion to provide for the custody of the parties’
children. Rutten, 347 N.W.2d at 50. Our “review of custody determinations is limited to
whether the [district] court abused its discretion by making findings unsupported by the
evidence or by improperly applying the law.” Pikula v. Pikula , 374 N.W.2d 705, 710
(Minn. 1985).
Wife sought sole legal and sole physical custody of the children, with husband’s
parenting time to occur only on Saturdays. Husband sought joint legal and joint physical
custody with equal parenting time. The court awarded wife sole legal and physical custody
of the children and limited husband’s parenting time to every Saturday from 10:00 a.m. to
5:00 p.m.
Husband challenges two aspects of the district court’s custody and parenting -time
determinations. First, he argues that the district court erred by finding that his ability to
care for the children was compromised by his health conditions and by relying on that fact
in its best-interests analysis. Second, he argues that the district court erred in finding that
he engaged in domestic abuse against wife and that because there was no abuse, the district
court should have applied a rebuttable presumption tha t joint legal custody was in the
children’s best interests.
A.
Husband argues that the district court erred by finding that his health put his children
at risk. In addressing the best -interests factors, the district court essentially found that
31
husband was in very poor health and reasoned that his health compromised the safety and
wellbeing of the children and his ability to parent.
Husband does not argue that the district court’s findings regarding his health are
erroneous. Indeed, he relies on those findings to assign error to the district court’s income
imputation. Several of those findings reveal instances in which the children were with
husband, but he was not able to properly care for them as a result of his declining physical
health. For example, the district court found that the children witnessed husband unable to
breathe, including while driving . The district court also f ound that husband had “passed
out at the dinner table and in other places .” We discern no error in the district court’s
finding that husband’s poor physical health compromised the safety and wellbeing of the
children when in his care for prolonged periods of time.
B.
Husband argues that the district court erred in finding that he engaged in domestic
abuse. Under Minn. Stat. § 518.17, subd. 1(b)(9), the district court must use a rebuttable
presumption that upon the request of either parent, “joint legal custody is in the best
interests of the child.” However, the district court
shall use a rebuttable presumption that joint legal custody or
joint physical custody is not in the best interests of the child if
domestic abuse, as defined in section 518B.01, has occurred
between the parents. In determining whether the presumption
is rebutted, the court shall consider the nature and context of
the domestic abuse and the implications of the domestic abuse
for parenting and for the child ’s safety, well -being, and
developmental needs. Disagreement alone over whether to
grant sole or joint custody does not constitute an inability of
parents to cooperate in the rearing of their children as
referenced in paragraph (a), clause (12).
32
Minn. Stat. § 518.17, subd. 1(b)(9).
Husband argues that because there was no abuse, the district court should have
applied the rebuttable presumption that joint legal custody was in the children’s best
interests.
In granting wife sole legal and physical custody, the district court found, in part, as
follows:
The [c]ourt finds that [husband] has domestically
abused [wife] within the meaning defined in Minn. Stat.
[§] 518B.01. [Husband] has made [wife] fearful for her
physical safety. [Husband] is easily angered and has a very
unpredictable temper. [Wife] testified credibly that [husband]
has thrown objects and slammed counters when he is angry.
The [c]ourt finds that [wife] could reasonably have been afraid
for her physical safety when [husband] has yelled and
threatened her.

Husband points to Minn. Stat. § 518B.01, subd. 17 (2022) , and seems to suggest,
without citation to authority, that there must be a previous finding of domestic abuse in an
order-for-protection (OFP) proceeding to support a finding of abuse in a dissolution
proceeding. In his brief to this court, he writes, “The [district] court’s finding of domestic
abuse is not supported by the record before it given there was no OFP and no such findings
of abuse.” See Minn. Stat. § 518B.01, subd. 17 (“In a subsequent custody proceeding the
court must consider a finding in a proceeding under this chapter or under a similar law of
another state that domestic abuse has occurred between the parties.”).
Again, husband cites no authority indicating there must be a finding of domestic
abuse in an OFP proceeding before a district court can make a finding of domestic abuse
in a custody proceeding. And the plain language of section 518.17, subdivision 1(b)(9),
33
does not require a prior OFP or finding of abuse in a prior domestic-abuse proceeding. The
statute merely requires a determination that domestic abuse, as defined in section 518B.01,
has occurred. This court generally will not read words into a statute. See Browder v. State,
899 N.W.2d 525, 529 (Minn. App. 2017) (“We do not read words into a statute on the
supposition that they have been inadvertently overlooked. ”), rev. denied (Minn. Aug. 22,
2017). We therefore reject husband’s argument on this point.
Husband also argues that the district court’s domestic -abuse findings are not
supported by the record . Under Minn. Stat. § 518B.01, subd. 2(a)(2) (2022), domestic
abuse includes “the infliction of fear of imminent physical harm, bodily injury, or assault”
upon a family member.
In an affidavit to the district court, wife asserted:
[Husband] has emotionally abused both me and the
children. He has, at times, gotten physical as well. He throws
things when angry, slams things down, and attempts to
physically intimidate us. [Husband’s] anger escalates so easily
and becomes so intense that I have been afraid for my safety,
as well as for the safety of the children. He has acted like he
was going to hit me, and them, on multiple occasions.

The district court found that husband “is easily angered and has a very unpredictable
temper,” and that wife “testified credibly” that husband “has thrown objects and slammed
counters when he is angry.” The district court therefore determined that wife “could
reasonably have been afraid for her physical safety.” W e question whether the district
court’s findings that husband is “easily angered,” has an “unpredictable temper ,” and has
“thrown objects and slammed counters when he is angry” alone would support a finding
of domestic abuse as defined under statute. Nonetheless, given wife’s assertion that
34
husband had “acted like he was going to hit [her],” we are satisfied that the record supports
a finding of domestic abuse.
Moreover, even if the district court had not found domestic abuse and had applied
the rebuttable presumption in favor of joint legal custody, that presumption would likely
have been r ebutted because in addition to the uncontested findings regarding husband’s
significant health issues, the district court found that every best-interests factor favored an
award of sole legal and sole physical custody to wife.
In conclusion, we affirm the district court’s legal -custody, physical -custody, and
parenting-time determinations. But we reverse the district court’s determination that the
parties’ antenuptial agreement was invalid, as well the following determinations that were
affected by that error: the identification of nonmar ital and marital property, the net
valuation of nonmarital property, the dissipation of marital assets, and the attorney -fee
award. Those issues are remanded for reconsideration under the terms of the antenuptial
agreement. We also reverse the district court’s imputation of income in the amount of
$30,000 a month to husband, as well as its related spousal-maintenance and child-support
determinations, and we remand those issues for reconsideration consistent with this
opinion. Whether to reopen the record on remand is in the district court’s discretion.
Affirmed in part, reversed in part, and remanded.