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My first two marriages and divorces

 

I have been married and divorced three times. The third divorce is discussed elsewhere. This is about the first two, especially the first.

I married my first wife on June 30, 1973, and, for reasons that will not be discussed here, filed for divorce in the spring of 1981 - almost eight years later. Three different lawyers worked on my behalf. The first was a woman, referred to me by my employer, did not seem that committed to my cause. For instance, she was billing me for time spent investigating how my wife could keep our telephone number although I had paid the bills. The second lawyer was an elderly man who enjoyed personal conversations but was not particularly effective in protecting my interests. He represented me during the trial. When it came time to appeal, I picked a third attorney, a man recommended by a men’s rights group, who handled the appeal. He did the job.

My wife had two different attorneys during the four years between my initial filing for divorce and the settlement dates. The first seemed like a decent guy but he committed suicide shortly before the trial held in St. Paul. The second, who was with the same law firm, was nastier. He once tried to bully me in the courtroom before the judge made his entrance. I suppose this can be regarded as aggressively representing the interests of his client.

The judge, a man in his late 40s, turned out to be a jerk. Shortly before retiring, he issued a sweeping judgment overturning some government program on constituional grounds. In my case, he made sarcastic statements directed against me during the trial, sat on the case for months at a time, issued an unreasonable opinion, and disregarded orders issued by the Court of Appeals. He was also the principal reason that this divorce took four years to settle.

Since we had no children, the main issue in the divorce was division of property. We had one main asset: a home in White Bear Township which included lake frontage on the north shore of White Bear Lake. We had bought this property through loans from a bank and from my mother and brother. The judge pretended that the loans from my relatives did not exist; and, if they did, I would have to repay them.

His order, dated March 9, 1984, stated: “From time to time during the course of the parties’ marriage, members of petitioner’s family have advanced funds to him both as gifts and as loans as documented by certain memoranda.” He ordered that “petitioner shall assume and pay any and all of the parties’ indebtedness to members of petitioner’s family ... arising out of loans or gifts made to the parties, or either of them.” This was strange since the Court of Appeals had ordered the judge specifically to rule whether this money was a loan or gift.

Some of the “findings” revealed how this judge felt about me and my wife. He wrote: “While both parties made substantial contributions toward the purchase and improvement of their homestead premises, respondent’s substantial contribution exceeded petitioner’s.” That was because I had been unemployed for one year out of the eight years of marriage while my wife had been continuously employed. Another strike against me was that “he expended at least the sum of $10,000 of the parties’ funds toward the advancement of personal causes which proved to be financially unrewarding.” The judge was referring to self-publication of a book which actually sold quite well. While I cannot confirm that it broke even, the allegation of a $10,000 loss seemed to have been pulled out of a hat. Certainly, this information did not come from me.

The bottom line is that the judge awarded my wife the house, which we had agreed was worth $68,000, together with all the furnishings and fixtures except for certain items on a list. The judge also ordered me to pay $500 of my wife’s attorney’s bills. In return for the house, the wife was to pay me $20,000 in a note financed over three years and give me two parcels of land in northern Wisconsin of lesser value.

I appealed the judge’s decision to the Minnesota Court of Appeals which issued its decision on March 12, 1985. The appellate court reversed the judge’s decision and remanded it to the trial court for clarification of the property division. Its decision is recorded as follows:

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McGAUGHEY v. McGAUGHEY cite as 363 N.W.2d 881 (Minn.App. 1985)

In re the Marriage of William H.T. McGAUGHEY, Petitioner, Appellant,
v.
Carol B. McGAUGHEY, Respondent.
No. C0-84-1237

Court of Appeals of Minnesota
March 12, 1985

The District Court, Ramsey County, Roland J. Faricy, Jr., J., entered judgement dividing property of parties in marriage dissolution proceeding, and husband appealed. The Court of Appeals, Huspeni, J. held that trial court’s findings in dividing marital property were not sufficiently clear as to value.

Reversed and remanded.

Appeal and Error (West key 110)

Court of Appeals had jurisdiction to hear appeal from denial of motion for new trial. 51 M.S.A., Rules Civ.App.Proc. 103.03(d)

Divorce (West key 253(4))

Trial court’s findings in dividing marital property of parties in marriage dissolution proceeding were not sufficiently clear as to value, and more explicit findings were necessary so as to enable Court of Appeals to determine whether division of property was just and equitable. M.S.A. § 518.58

Divorce (West key 253(4))

In marriage dissolution proceeding, specific findings were necessary to determine whether certain intrafamily transactions were loans or gifts. M.S.A. § 518.58

4. Divorce (West key 253(4))

In marriage dissolution proceeding, findings were necessary to determine whether certain items of husband’s non-marital property were awarded to wife and whether there was undue hardship which would permit such award. M.S.A. § 518.58

Syllabus by the Court

The Court of Appeals has jurisdiction to hear an appeal from the denial of a motion for a new trial.

To facilitate review under Minn. Stat. § 518.58 (1984), the court must make findings on the value of the marital and nonmarital property that it distributes pursuant to a dissolution decree. The court must find specifically whether certain intra-family transactions are loans or gifts.

______________
Donald A. Hillstrom, Minneapolis, for appellant.
Phillip Gainsley, Moss & Barnett, Minneapolis, for respondent.

Heard, considered and decided by WOZNIAK, P.J., and PARKER and HUSPENI, J.J.

OPINION

HUSPENI, Judge

Appellant husband appeals from the denial of his motions for amended findings or for a new trial. He contends that the court erred in its disposition of marital and nonmarital assets under Minn. Stat. § 518.58 (1984), in dividing the marital indebtedness and in awarding attorney’s fees to wife. The wife moved to strike this appeal contending that the Court of Appeals lacks jurisdiction. We find jurisdiction and remand with instructions to make more specific findings on the character and valuation of assets and on the question of whether certain intra-family transactions were loans or gifts.

FACTS

William and Carol McGaughey were married in 1973. They had no children. A judgment and decree of dissolution was entered on March 9, 1984. Neither party was awarded maintenance.

The parties’ primary asset was their homestead. They stipulated its value to be $68,000 less $7,164 for special assessments. The court awarded the homestead to the wife, subject to a $20,000 lien in favor of the husband, payable to him in 36 monthly installments commending april 1, 1984. Evidence at trial indicated that the homestead was purchased in part with $16,000 provided by husband.s brother and mother. The husband introduced certain documents indicating that the money was a loan and thus a marital debt. The wife testified to circumstances which indicated that it was a gift. The court found that:

XII

From time to time during the course of the parties’ marriage, members of [the husband’s] family have advanced funds to him both as gifts and as loans as documented by certain memoranda.

Husband was given responsibility for payment of all intra-family debts.

With the exception of certain items awarded to the husband, all household goods were awarded to the wife. The court did not put a value on the personal property awarded to either party. Although evidence at trial tended to indicate that some personal property was marital, the trial court characterized it all as nonmarital and awarded it accordingly. Husband contends on appeal that certain items awarded to wife were, in fact, husband’s nonmarital property: to-wit: a wallclock, Japanese prints, books, and one-half of a coin collection. The court made no findings on these items. The record does not clearly reveal whether they are nonmarital assets.

The parties owned two Wisconsin properties purchased for $17,000. They stipulated the total value of these properties to be $13,925, subject to a $3,800 encumbrance. The properties were awarded to the husband. They had been purchased, in part, with nonmarital assets contributed by the wife. The properties were financed in part with $4,000 contributed by the husband’s mother and brother. The trial court made no findings on the extent of the wife’s nonmarital contribution, nor did it find whether the husband’s intra-family transactions were loans or gifts.

The trial court found that the wife’s contributions to the marriage exceeded the husband’s. The wife was employed full time throughout the marriage. The husband was unemployed for part of the marriage. In addition, the husband spent money on the publication of his book which proved to be a financial failure. The court found a dissipation of marital assets of “at least $10,000”.

The trial court’s findings and conclusions did not address the wife’s IRA account valued by both parties at $4,500.

The court awarded the wife $500 in attorney’s fees.

Following entry of the Judgment and Decree, the husband moved for amended findings and for a new trial. His motion articulated various reasons for finding the property division unjust. This appeal followed the denial of the husband’s motions.

ISSUES

Does the Court of Appeals have jurisdiction over an appeal from the denial of motion for a new trial?

From the record and the court’s findings, is it possible to determine whether the division of property under Minn.Stat. § 518.58 (1984) was just and equitable?

ANALYSIS

[1] 1. A new trial may be granted when a court’s decision is not justified by the evidence. Minn.R.Civ.P. 59.01(7) The husband’s motion for a new trial was accompanied by a memorandum which explicitly set forth his reasons for finding the division of property to be unfair. The order denying a new trial is reviewable as a matter of right. Minn.R.Civ.P. 103.03(d)

[2] 2. The trial court has a duty to “make a just and equitable division of the marital property of the parties ... after making findings regarding the division of property.” Minn.Stat. § 518.58 (1984) To facilitate meaningful review, the record and the court’s findings should reflect how property is being divided and the value ascribed to that property. 1 [Footnote 1 While appellate review by be possible absent precise valuation in certain instances, i.e., equal division in kind of a single or fungible asset, or when an assets is of negligible value, those circumstances are not present here.] The findings here are not sufficiently clear as to value. As a result, on appeal, the husband is able to characterize the court’s disposition of assets as $83,000 to the wife and $14,050 to him. Conversely, the wife is able on appeal to perceive the property division to be $45,336 to the wife and $44,550 to the husband. Because the trial court's findings are inadequate as to value, we cannot determine whether the division of that property was just and equitable. The matter must be remanded for more explicit findings. Roberson v. Roberson, 296 Minn. 476, 206 N.W.2d 347 (1973).

[3] 3. Neither can we determine from the record whether the court erred in its apportionment of marital indebtedness. The court's finding that husband's "family have advanced funds to him both as gifts and as loans as documented by certain memoranda" is insufficient to allow us meaningful review of this thorny issue as it affects both the parties' homestead and their Wisconsin properties. Wife insists those advanced funds were gifts; husband insists they were loans. As is often the case, these transactions occurred over a period of years, during an ongoing marital relationship, and under conditions not necessarily conducive to precise record-keeping or documentation. The task of the trial court is not an easy one. However, under the circumstances here present, we are compelled to remand this issue for specific findings as to the nature of these transactions.

Husband also complains that the trial court erred in its disposition of the homestead, and urges that it be sold and the net proceeds divided equally between the parties. Again, we are unable to meaningfully review the propriety of the homestead disposition. Because the trial court made no finding regarding whether the funds advanced by husband's family were loans to the parties, gifts to husband, or gifts to husband and wife, we are unable to determine whether the trial court considered any portion of the equity of the homestead or Wisconsin properties to be nonmarital, and, if so, what consideration that nonmarital character was given. Schmitz v. Schmitz, 309 N.W.2d 748 (Minn.1981).

[4] Husband next alleges that certain items of his nonmarital property were awarded to wife. The trial court made no finding as to the specific items husband mentions, nor did it make any reference to undue hardship which would permit award of nonmarital property to the nonowner spouse. Minn.Stat. § 518.58 (1984). Were this the only issue raised on appeal, it might be considered to be of such minimal effect on the property distribution as a whole as to obviate necessity of remand. However, inasmuch as this matter is being remanded on other issues, the trial court is directed to address husband's nonmarital property issues upon remand. Further, because we are uncertain as to the trial court's characterization and disposition of wife's $4,500 IRA, we request the trial court to address this matter also on remand.

Finally, husband questions the propriety of the trial court's award of attorney's fees to wife. Such award rests upon "considering the financial resources of both parties." Minn.Stat. § 518.14 (1984). Because a clear statement of the property division is not now available to us, we are unable to determine the financial resources of the parties. Thus, we can make no statement regarding the appropriateness of the attorney's fees award.

DECISION

Reversed and remanded to the trial court for findings consistent with this opinion.

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When the judge received the appellate court’s decision, he eventually issued another opinion which retained the ambiguity regarding “loans and gifts”. I decided to go back to the Court of Appeals and had the appeal written. ” At this point, my wife and her attorney decided to settle for a debt amount that took into consideration my mother’s and brother’s “loan”. I agreed to take $1,000 less than a 50-50 split of marital property.

The document incorporating our agreement was the following:

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT

in Re the Marriage of:
William H. T. McGaughey,
Petitioner

and STIPULATION

Carol B. McGaughey File No. 4396

THIS STIPULATION made and entered into by and between William H. T. McGaughey, petitioner herein, and Carol B. McGaughey, respondent herein, and their respective attorneys,

WITNESSETH:

WHEREAS, on the 9th day of March, 1984, the above-named Court made and entered its Judgment and degree herein, inter alia, awarding to respondent all right, title, use and possession of those certain premises situated at 5161 East County Line Road, City of White Bear, County of Ramsey, State of Minnesota, legally described as follows, to-wit:

Lots 29, 30, and 31, in Block 33 of White Bear Beach,together with vacated alley accrued to said lots and the East 26 feet of Tract “BBB”; Tracts “CCC” and”DDD”; in Registered Land Survey No. 67, Files of Registrar of Titles, County of Ramsey,

ALSO

The part of the South 1/2 of Section 123, Township 30, Range 22, bounded as follows: on the north by the south line of street marked “Boulevard” on the plat of White bear Beach; on the south by the north line of Registered Land Survey No. 67; on the east by a line 26 feet west of and parallel with the east line of Tract “BBB” of Registered Land Survey no. 67 extended northerly to the south line of said Boulevard; and on the east by the east line of Tract “DDD” of said Land Survey extended northerly to the south line of said Boulevard,

subject to a lien in favor of petitioner in the sum of $20,000 to be paid by respondent to him in installments, and

WHEREAS petitioner appealed that Judgment and Decree to the intermediate Court of Appeals which reversed and remanded said Judgment and Decree, and

WHEREAS, on remand, the district Court issued its Amended Judgment and Decree warding all right, title, use and possession of said premises to respondent, subject to petitioner’s lien in the sum of $32,750 to be paid by her to him in installments, and

WHEREAS respondent appealed to the intermediate Court of Appeals theAmended Judgment and Decree herein, and

WHEREAS the parties have agreed amicably to resolve their differences and disputes, and intend by this Stipulation to terminate this proceeding,

NOW, THEREFORE, it is hereby stipulated and agreed by and between the parties herein and their respective attorneys as follows, to-wit:

Contemporaneously herewith, respondent pays to petitioner, who accepts from respondent, the sum of $32,7550, the receipt and sufficiency of which petitioner does hereby acknowledge.

Respondent shall pay to petitioner the sum of $9,000, together with interest thereon at the rate of seven percent per annum, to-wit: Interest only on said amount to be paid annually not later than the 31st day of December of each year for five consecutive years commencing 1986. Commencing in the year 1991, respondent shall commence reducing the principal balance by making monthly payments to petitioner of principal and accrued interest amortized over a term of 84 consecutive months. Each payment, as and when made, shall first be applied upon interest at the above rate on the unpaid principal balance from time to time, and the remainder shall be applied toward reduction of the principal.

In the event respondent sells the premises aforedescribed, then the entire unpaid principal balance and accrued interest shall at once be due, owing and payable to the petitioner.

Petitioner does hereby discharge the lien or liens awarded him pursuant to the Judgment and Decree of the above-named Court dated March 9, 1984, and the Amended Judgment and Decree of the above-named Court dated September 6, 1985, and by this Stipulation directs the Ramsey County Recorder and the Ramsey County Registrar of Titles to show said lien or liens to be satisfied and totally discharged of record.

Respondent shall notify petitioner in the event of her change of residence address.

Save and except for the obligations by this Stipulation imposed upon the parties, or either of them, both parties hereto do release each other of and from any all claims, past, present or future, arising out of their marriage to each other or the dissolution of said marriage, and both parties are forever discharged from any further obligation to the other party, save and except for the obligations set forth herein.

Petitioner does hereby dismiss his appeal.

DATED: December 3, 1985

Signed by: William H. T. McGaughey, petitioner; Donald A. Hillstrom, petitioner’s attorney; Carol B. McGaughey, respondent; Phillip Gainsley, respondent’s attorney.

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I have to report that my former wife adhered to the payment schedule for a year or so and then stopped paying on the debt. My attorney, Donald Hillstrom, went back to court to put a lien on the property for around $8,000 - which was the delinquency up to that point. On January of 2000, my former wife sold the property. She had to pay the $8,000 lien to free the property but paid nothing more. The unpaid debt was around $10,000. Unfortunately, when the closing on the White Bear property took place, I was in China meeting my third wife. Even though the title company knew that the full amount of the debt had not been paid, the sale went through. I might have gone back to court to collect that money but was then preoccupied with other concerns.

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Now we come to my second marriage and divorce. My bride was a single parent with five minor children. We married on January 2, 1995, and were divorced on August 9, 1996.

The reason for the divorce was that my wife’s psychiatric counselor in north Minneapolis had threatened to take her children away if my brother, who was schizophrenic, lived in the same building with us. My brother had said that my wife’s young children seemed to enjoy “being raped by the bogeyman”, which was his way of describing their reaction to a monster movie they had watched together on television. The counselor, a mandatory reporter, interpreted this to mean that my brother had fantasies of molesting the children.

Not realizing the consequences, perhaps, I refused to evict my brother. Therefore, when I returned from a trip to China, I found the house empty. My wife and her young children had moved out. That led to our divorce.

We agreed to do a “cheapie” divorce that would cost around $100. My wife said she did not want any of my money; and I, of course, did not want hers. Even so, the judge called my wife to suggest asking for a more substantial property settlement. There was definite need, after all. But my wife confirmed that she would let the marriage go without going after my money.

This was the former wife so vilified during the divorce from my third wife. As of this writing, we are back to living together again in the same house. I have not seen the first wife in more than thirty years; and the third remains an adversary in court.

 

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