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In re Marrige of Bender

November 25, 2003

IN RE THE MARRIAGE OF: GAIL P. BENDER, F/K/A GAIL PAPERMASTER, PETITIONER, RESPONDENT,
v.
ALAN PAUL BENDER, APPELLANT.



Hennepin County District Court File No. DC249476

Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Halbrooks, Judge.

SYLLABUS BY THE COURT

SYLLABUS

I. Under Minn. Stat. §á518.58, subd. 1 (2002), the district court has the discretion to adjust the valuation dates and the valuation of assets to ensure a fair and equitable division of property.

II. When parties enter a parenting plan pursuant to Minn. Stat. §á518.1705 (2002), but do not use a traditional description of the custody arrangement, the district court's description of the custody arrangement as sole or joint physical custody is binding for purposes of child support.

The opinion of the court was delivered by: Hudson, Judge

Affirmed in part, reversed in part, and remanded; motion denied

OPINION

This is an appeal from a dissolution judgment. Appellant Alan Bender claims that the district court erred by (1)áadjusting the valuation dates for three investment accounts awarded to respondent Gail Bender, while refusing to adjust the valuation dates for any of the retirement accounts awarded to him; (2)áfailing to find that respondent used marital assets to pay her attorney fees and to adjust the property division accordingly; and (3)ánot calculating child support in accordance with the Hortis/Valento formula. We affirm the district court's decisions regarding the valuation date of the investment accounts and decline to address the question of attorney fees. We reverse on the issue of child support and remand for the district court to readdress that question.

FACTS

The parties married in 1970 and divorced in 2002. The parties have three adult children and one 13-year-old child, H.B. Respondent is self-employed as an oncologist, and the district court found respondent's annual income to be $147,500. Appellant is an epidemiologist with the State of Minnesota and his gross annual salary is $98,134. The parties have various assets including retirement accounts, investment accounts, and a homestead. Appellant argues that the parties stipulated to valuing all of the accounts to be awarded to respondent as of December 31, 2000. But the district court found that because of the subsequent downturn in the market, it was unfair not to "update" the values of the certain investment accounts. The property distribution ultimately awarded each party $1,169,449, including a requirement that respondent pay appellant $260,943 to effectuate the distribution. The district court did not award either party attorney fees.

Regarding custody, the parties entered a parenting plan pursuant to Minn. Stat. §á518.1705 (2000). The plan did not label their custody arrangement. The district court identified the custodial arrangement as joint legal and physical custody. The district court reserved child support and ordered that each party pay for H.B.'s expenses when H.B. was in his or her care. Additionally, the district court ordered respondent to pay for H.B.'s clothing expenses and appellant to pay for extracurricular and sports-related expenses. The district court found that because the parties spend roughly equal time with H.B. and because there was no designated child-support "obligor," neither party needed to pay child support. Further, the district court concluded that calculating child support using the Hortis/Valento formula would have produced only a nominal amount of child support. Finally, the district court found that this child-support arrangement was appropriate because "it is important for [H.B.] to understand that both of his parents are contributing directly toward his care and support."

While appellant filed a notice of appeal, he did not order a transcript, stating that the transcript would cost about $10,000. Respondent unsuccessfully moved the district court for an order compelling appellant to order a transcript. Respondent then filed a motion with this court to dismiss the appeal because of the lack of a transcript. This court issued an order declining to dismiss the appeal at that time, ...


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