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In re Marriage of Szarke

Court of Appeals of Minnesota

August 19, 2013

In re the Marriage of: Patricia Ann Szarke, petitioner, Respondent,
Steven Bernard Szarke, Appellant.


Wright County District Court File No. 86-FA-10-6849

Walter G. Bauch, Mark H. Gehan, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, Minnesota (for respondent)

Suzanne M. Remington, James T. Williamson, Mylene A. Landry, Hellmuth & Johnson, PLLP, Edina, Minnesota (for appellant)

Considered and decided by Kalitowski, Presiding Judge; Johnson, Chief Judge; and Toussaint, Judge.

TOUSSAINT, Judge [*]

Following a dissolution and property division, appellant Steven Bernard Szarke challenges (1) the district court's allocation of funds appellant put into foreign scams to him as an asset; (2) the district court's decision to order the sale of a cabin property; and (3) the district court's award of conduct-based attorney fees to respondent Patricia Ann Szarke. Because the district court did not abuse its discretion in allocating funds to appellant as an asset in making an equitable property division, we affirm that part of the district court's decision. However, because the district court's findings regarding the value and disposition of the cabin property are conflicting, we reverse the order to sell that property and remand the issue to the district court to clarify its decision regarding the property. Finally, because we conclude that two of the three bases for the district court's award of attorney fees are not permissible, we reverse the district court's award of attorney fees and remand so that the district court may award an amount appropriate to the remaining basis.


I. Did the district court abuse its discretion by assigning the lottery scam funds to appellant as an asset?

Upon marital termination, the district "court shall make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property." Minn. Stat. § 518.58, subd. 1 (2012).

The court shall base its findings on all relevant factors including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party. The court shall also consider the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker. It shall be conclusively presumed that each spouse made a substantial contribution to the acquisition of income and property while they were living together as husband and wife.

Id. A division of marital property must be equitable, but not necessarily equal. White v. White, 521 N.W.2d 874, 878 (Minn.App. 1994). "District courts have broad discretion over the division of marital property and appellate courts will not alter a district court's property division absent a clear abuse of discretion or an erroneous application of the law." Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn.App. 2005). A district court abuses its discretion in dividing property if it resolves the matter in a manner "that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

The district court allocated $286, 198 in funds that appellant sent to lottery scam perpetrators to him as an asset in the property division. Appellant sent these funds between 2007 and 2010 to individuals who contacted him by phone and told him that he won money in a foreign lottery, but that he needed to pay taxes and fees in order to collect his winnings. However, appellant had never entered any such lottery and was told multiple times by police that this was a scam and that he would receive nothing. Despite those warnings, appellant continued to send money without respondent's knowledge or consent, except as to one payment that respondent knew about.

First, appellant argues that the district court erroneously allocated the lottery scam funds to him under Minn. Stat. § 518.58, subd. 1a (2012). That subdivision addresses a party who, without the consent of the other party and in contemplation of commencing or during the pendency of the dissolution, has "transferred, encumbered, concealed, or disposed of marital assets" except in the usual course of the parties' business or for necessities. Id. When the district court finds that this has occurred, "the court shall compensate the other party by placing both ...

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