                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-2006

                                 In re the Marriage of:

                           Michelle Beth Kremer, petitioner,
                                     Respondent,

                                          vs.

                               Robbie Michael Kremer,
                                     Appellant.

                              Filed January 9, 2017
                Affirmed in part, reversed in part, and remanded
                             Smith, Tracy M., Judge
               Concurring in part, dissenting in part, Hooten, Judge

                             Nobles County District Court
                               File No. 53-FA-10-425

William J. Wetering, Steven R. Forrest, Hedeen, Hughes & Wetering, Worthington,
Minnesota (for respondent)

Kay Nord Hunt, Mark A. Johannsen, Lommen Abdo, P.A., Minneapolis, Minnesota (for
appellant)

      Considered and decided by Johnson, Presiding Judge; Hooten, Judge; and Smith,

Tracy M., Judge.

                                   SYLLABUS

      The procedural fairness of an antenuptial agreement that covers or includes marital

property is assessed under the common law, using the multifactor test outlined in In re

Estate of Kinney, 733 N.W.2d 118 (Minn. 2007).
                                      OPINION

SMITH, TRACY M., Judge

      In this family-law case, appellant husband challenges the district court’s order

declaring invalid the antenuptial agreement he executed with respondent wife. Husband

also challenges the district court’s subsequent order awarding wife (1) $750,000 as her

share of marital property, (2) temporary rehabilitative and permanent spousal maintenance,

and (3) need-based attorney fees. We conclude that the district court did not err in

determining that the antenuptial agreement is invalid and did not abuse its discretion in

awarding marital property, temporary rehabilitative spousal maintenance, and attorney fees

to wife. However, we conclude that the district court abused its discretion in its award of

permanent spousal maintenance. We therefore affirm in part, reverse in part, and remand.

                                         FACTS

      Appellant Robbie Kremer and respondent Michelle Kremer began living together

in 1997 and, in August 2000, agreed to get married. While they were living together before

their marriage, husband informed wife that he would not marry her without an antenuptial

agreement, but they did not discuss any terms. When they agreed to marry, husband was

the owner of a farming operation with equity of $643,756. Wife worked at a gas station

and later on husband’s farm. This was husband’s first marriage, and wife was previously

married and divorced. When the parties married, wife had children.

      The parties planned a March 6, 2001 destination wedding in the Cayman Islands,

together with family and friends. The parties planned to travel from their home in Nobles

County to the Twin Cities on March 1, in anticipation of their March 2 flights. Beginning


                                            2
in late January or February, unbeknownst to wife, husband began meeting with his lawyer

to draft an antenuptial agreement. Husband had a minimum of six contacts with his

attorney to create the document. On February 26, husband met with his attorney and signed

the agreement; sometime later that day, husband gave the signed agreement to wife and

told her to talk to an attorney. Husband made clear that there would be no wedding if she

did not sign the agreement. By this time, family and friends had paid for their lodging and

airfare to the Cayman Islands, and some of them had started their travels.

       Wife attempted but failed to secure an appointment with her attorney from her

previous divorce, but she was able to consult with a different attorney on February 28. The

attorney reviewed the agreement with wife, and wife signed the agreement at that meeting

and returned it to husband the same day. The agreement foreclosed any claims to spousal

maintenance and provided that marital property would be divided “in proportion to the

actual monetary consideration provided by each [party].”

       The next day, the parties traveled to the Cayman Islands, and they were married on

March 6. After the wedding, wife worked less on the farm than she had prior to getting

married. After the parties’ child was born in 2008, wife’s time spent working on the farm

further decreased, but she still contributed to the farm operation. Wife’s contributions to

the farm included driving the combine, bringing seed out to the field, making meals for

farm workers, and mowing the lawn. Wife also maintained the house, purchased groceries,

and cared for the children. While the parties were married, wife at times worked part-time

outside the home.




                                            3
       By December 2009, husband’s equity interest in the farming operation had

increased by $1,896,516. That year, husband signed wife up for a federal farm program,

and, although he testified that wife was not contributing to the farm, husband represented

to the government that they were in a 70/30 joint venture.

       Wife petitioned for marriage dissolution in April 2010. During the dissolution

action, wife moved to set aside the antenuptial agreement on the grounds that it “was a

product of duress and coercion” and that she did not have “sufficient legal advice” to fully

understand the agreement. Wife further claimed that the agreement was unfair at inception

and that it was unfair at enforcement due to wife’s change in financial circumstances. The

district court bifurcated the dissolution action, separating the property issues from the other

issues for later resolution. After a hearing in 2011, the district court concluded that the

agreement was invalid.

       The parties’ marriage was dissolved on January 10, 2012, and they agreed to that

date as the valuation date of assets. Husband claims that the dissolution affected his ability

to obtain financing and that he had to downsize his farming operation in 2012. Husband

farms land that he rents; he does not own tillable land. Husband’s father also farms. From

2009 to 2011, husband farmed approximately 2,500 acres, and his father farmed

approximately 500 acres. During 2012, husband downsized his farming operation to 172

acres. Husband also sold $1.5 million of stored grain, paid off a debt, and purchased new

equipment, which he used to custom farm his father’s land for no pay.1 That year,


1
 Expert testimony valued husband’s work for his father at $354,558 to $430,218. The
expert also testified that 2012 was the most successful year in grain farming in a lifetime.

                                              4
husband’s father farmed the balance of the land previously farmed by husband in the

operation, totaling about 3,000 acres.

       After a two-day trial on the property issues in December 2014 and January 2015,

the district court filed an order requiring husband to pay both temporary rehabilitative and

permanent spousal maintenance. In addition, the district court found husband’s claim that

he was forced to reduce his farm operation not credible and concluded that husband

dissipated $1.5 million in assets during the dissolution proceeding in violation of Minn.

Stat. § 518.58, subd. 1a (2016). The district court ordered husband to pay $750,000 as an

equitable distribution of marital property. The district court also ordered husband to pay

$168,000 toward wife’s need-based attorney fees. Husband appeals.

                                           ISSUES

I.     Did the district court err in concluding that the parties’ antenuptial agreement is
       invalid?

II.    Did the district court abuse its discretion in its division of the marital estate?

III.   Did the district court abuse its discretion in awarding spousal maintenance?

IV.    Did the district court abuse its discretion in awarding respondent need-based
       attorney fees?

                                         ANALYSIS

I.     The district court did not err in invalidating the antenuptial agreement.

       Wife contested the validity of the parties’ antenuptial agreement. The agreement

addresses the disposition of nonmarital and marital property, as well as spousal

maintenance, upon dissolution of the marriage. The district court awarded husband his

nonmarital property, and wife does not challenge that decision. However, the district court


                                               5
concluded that the antenuptial agreement was invalid and awarded wife marital property

and spousal maintenance without regard to the agreement. Husband argues that the district

court erred in invalidating the agreement.

       “Statutory construction is a question of law, which this court reviews de novo.” In

re Estate of Rutt, 824 N.W.2d 641, 645 (Minn. App. 2012) (quotation omitted), review

denied (Minn. Jan. 29, 2013). Where the relevant facts are undisputed, the application of

a statute to those facts is a question of law we undertake de novo. Id. Where facts are in

dispute, appellate courts will defer to the findings of the district court, unless those findings

are clearly erroneous. Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn.

2013). We defer to the district court’s credibility determinations. Sefkow v. Sefkow, 427

N.W.2d 203, 210 (Minn. 1988).

       A. Standard of law

       The critical initial issue is identifying the appropriate legal standard for evaluating

the validity of antenuptial agreements that, like the one at issue here, are entered into after

the effective date of Minn. Stat. § 519.11 (2016), and that address marital property. Section

519.11 states that it “shall apply to all antenuptial contracts and settlements executed on or

after August 1, 1979.” Minn. Stat. § 519.11, subd. 6. Here, it is undisputed that the parties’

antenuptial agreement was executed after August 1, 1979. Therefore, the statute applies to

the parties’ agreement.

       Under subdivision 1 of the statute,

              [a] man and woman of legal age may enter into an antenuptial
              contract or settlement prior to solemnization of marriage which
              shall be valid and enforceable if (a) there is a full and fair


                                               6
              disclosure of the earnings and property of each party, and
              (b) the parties have had an opportunity to consult with legal
              counsel of their own choice. An antenuptial contract or
              settlement made in conformity with this section may determine
              what rights each party has in the nonmarital property, defined
              in section 518.003, subdivision 3b, upon dissolution of
              marriage, legal separation or after its termination by death and
              may bar each other of all rights in the respective estates not so
              secured to them by their agreement. This section shall not be
              construed to make invalid or unenforceable any antenuptial
              agreement or settlement made and executed in conformity with
              this section because the agreement or settlement covers or
              includes marital property, if the agreement or settlement would
              be valid and enforceable without regard to this section.

The first sentence of this subdivision states that an antenuptial agreement “shall be valid”

if the parties made full disclosure and had access to counsel. Id., subd. 1. This sentence

does not otherwise limit itself. Generally, “‘[s]hall’ is mandatory.” Minn. Stat. § 645.44,

subd. 16 (2016). Therefore, if this sentence is read in isolation, it could be argued that it

applies to all antenuptial agreements entered into after the effective date of the statute. But

we conclude that the Minnesota Supreme Court’s decisions in McKee-Johnson v. Johnson,

444 N.W.2d 259 (Minn. 1989), and In re Estate of Kinney, 733 N.W.2d at 118, direct

otherwise.

       McKee-Johnson addressed an antenuptial agreement executed after the effective

date of Minn. Stat. § 519.11. 444 N.W.2d at 262. That agreement covered both marital

and nonmarital property, but it was challenged only with respect to marital property. Id. at

261. The district court ruled that section 519.11 rendered the portion of the agreement

addressing marital property void and unenforceable as a matter of law. Id. at 262. This

court affirmed the district court’s ruling, concluding that section 519.11 excluded, as a



                                              7
matter of law, marital-property rights from the scope of rights able to be addressed by an

antenuptial agreement. McKee-Johnson v. Johnson, 429 N.W.2d 689, 692-94 (Minn. App.

1988), rev’d 444 N.W.2d at 261. The supreme court disagreed, concluding that Minn. Stat.

§ 519.11 does not preclude antenuptial agreements from addressing marital property.

McKee-Johnson, 444 N.W.2d at 264-65.

       Critical to the supreme court’s ruling in McKee-Johnson was the court’s

interpretation of the third sentence of subdivision 1: “This section shall not be construed

to make invalid or unenforceable any antenuptial agreement or settlement made and

executed in conformity with this section because the agreement or settlement covers or

includes marital property, if the agreement or settlement would be valid and enforceable

without regard to this section.” Id. at 263 (quoting Minn. Stat. § 519.11, subd. 1 (1988)).

The supreme court reasoned that this sentence was ambiguous, and resorted to the

legislative history of section 519.11 to discern the meaning of the sentence. Id. After

reviewing the legislative evolution of what became Minn. Stat. § 519.11, the supreme court

stated, “[t]he thrust of the bill was directed to codification of procedural fairness

requirements in the execution of a valid antenuptial contract and, with respect to nonmarital

property, to make it more difficult to subsequently challenge the validity of an antenuptial

agreement covering nonmarital property.” Id. at 264. The court explained that the

legislative history showed no hostility to antenuptial contracts addressing marital property.

Id. at 265. “To the contrary,” the court wrote, “the statute recognizes the validity of such

a contract so long as ‘it would be valid and enforceable without regard to this section.’”

Id. at 264-65. “Therefore,” the supreme court concluded, “to determine whether the


                                             8
provisions of this contract relating to ‘after acquired’ [i.e., marital] property are valid and

enforceable, we must look to our common law for guidance.” Id. at 265. McKee-Johnson

thus decided that if an antenuptial agreement addresses marital property, its validity is

assessed under the common-law standard rather than the statutory standard.2

       McKee-Johnson then reviewed Minnesota antenuptial-agreement cases decided

under common law and stated that those cases show that antenuptial agreements, “if fairly

arrived at, following full disclosure of financial condition, and with opportunity to consult

independently with counsel, have been favored in the common law of Minnesota—even



2
  The dissent argues that the third sentence of Minn. Stat. § 519.11, subd. 1, operates as a
savings clause to validate agreements that would otherwise be invalid under the statute.
According to the dissent, the savings clause thus operates in one direction, toward validity:
Agreements that satisfy statutory procedural fairness would not be invalid even though
they fail common-law procedural fairness, while agreements that fail statutory procedural
fairness would not be invalid as long as they satisfy common-law procedural fairness. We
do not believe that this interpretation squares with McKee-Johnson, which, after noting that
Minn. Stat. § 519.11 did not preclude antenuptial agreements from addressing marital
property, stated that “[t]herefore” the court “must look to our common law for guidance”
regarding whether the antenuptial agreement was “valid and enforceable” regarding marital
property. McKee-Johnson, 444 N.W.2d at 265. Alternatively stated: It was because the
McKee-Johnson antenuptial agreement addressed marital property that McKee-Johnson
invoked the common law.

        The dissent also argues that the “plain language” of the first sentence of Minn. Stat.
§ 519.11, subd. 1, requires application of statutory procedural fairness to all antenuptial
agreements executed after the statute’s effective date, and to do otherwise is to rewrite the
sentence or render it meaningless. But that sentence states that “an antenuptial
[agreement] . . . shall be valid and enforceable” if there was full disclosure and access to
counsel. Minn. Stat. § 519.11, subd. 1 (emphasis added). Clearly that “plain language”
does not hold, because McKee-Johnson requires evaluation of substantive fairness before
an antenuptial agreement addressing marital property is determined to be valid and
enforceable. If the first sentence of subdivision 1 applies to all antenuptial agreements,
and if that sentence is satisfied, why a court must also address the substantive fairness of
an agreement that is already valid and enforceable becomes unclear.

                                              9
though marital property was included within their scope.” Id. The supreme court went on

to explain that the common-law standard for assessing the validity of antenuptial

agreements includes separate inquiries addressing the agreement’s procedural and

substantive fairness. Id. McKee-Johnson also stated that (a) “Minn. Stat. § 519.11 did not

alter common law rules of procedural or substantive fairness applicable to provisions

relating to the allocation of marital property;” and (b) “[t]he procedural review focuses on

determining whether at the inception the agreement was fairly procured, and, under the

common law, relevant factors to be considered are substantially identical to those which

the legislature codified in Minn. Stat. § 519.11, subd. 1 (1988).” Id.

       Thus, McKee-Johnson ruled that the two-part disclosure-and-access-to-counsel

standard in the first sentence of Minn. Stat. § 519.11, subd. 1, is “substantially identical”

to the common-law standard for procedural fairness. Apparently as a result of what

McKee-Johnson identified as the symmetrical requirements of the statute and the common

law for the procedural fairness of an antenuptial agreement, McKee-Johnson then stated

that “[u]nder the common law, and, as well, the statute,” procedural fairness requires full

financial disclosure and the opportunity to consult counsel. Id. at 265-66. Critical for

purposes of this appeal is the idea that, according to McKee-Johnson, both the statutory

and common-law standards for assessing the validity of an antenuptial agreement require

that the parties to that agreement have had the opportunity to consult independent counsel.3


3
  Portions of McKee-Johnson arguably could be read to suggest that its assessment of the
procedural fairness of the antenuptial agreement was somehow based on the statute. See,
e.g., 444 N.W.2d at 265 (stating that “[u]nder the common law, and, as well, the statute,


                                             10
       In 2007, the supreme court decided Kinney.           Because Kinney involved an

antenuptial agreement entered into in 1969, the agreement was not governed by Minn. Stat.

§ 591.11. 733 N.W.2d at 122. This court’s unpublished decision ruled the agreement in

Kinney invalid under the common law because the wife had not had the opportunity to

consult independent counsel. In re Estate of Kinney, No. A05-1794, 2006 WL 1806386,

at *3 (Minn. App. July 3, 2006), rev’d 733 N.W.2d at 120. The supreme court disagreed,

concluding that “the opportunity to consult with independent counsel is a relevant factor in

the analysis,” but it is not “a requirement for a valid antenuptial agreement under common

law.” Kinney, 733 N.W.2d at 124.

       The supreme court laid out a multifactor test for assessing whether an antenuptial

agreement was equitably and fairly made:

              (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 of 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. Further, Kinney states both that (a) “[w]e hold that the opportunity to consult with

independent counsel is not a requirement, but is one of several relevant factors that courts

may consider when determining whether an antenuptial agreement is fair and equitable and


one standard relative to the procedural fairness requirement is met whenever the proponent
has established . . .”). We believe, however, that a fair reading of McKee-Johnson shows
that these references to the statute arise from what McKee-Johnson identified as the
symmetrical requirements of the statute and the common law, not any dependence on the
statute.


                                            11
therefore enforceable under common law;” and (b) “[t]o the extent that McKee-Johnson . . .

could be read to indicate otherwise, [it is] overruled on that issue.” Id. at 125-26. Thus,

after Kinney, if the validity of an antenuptial agreement is assessed under the common law,

that agreement may be valid even if a party lacked the opportunity to consult independent

counsel.

       Integrating these two supreme court decisions, we conclude that the district court,

in accordance with McKee-Johnson, should have evaluated the antenuptial agreement

under the common-law standards of procedural and substantive fairness and that Kinney

articulates the common-law standard of procedural fairness.4


4
  The dissent argues that our reading of McKee-Johnson creates a potential for confusion.
The dissent asserts that, under our reading, a single antenuptial agreement addressing both
marital and nonmarital property could be subject, simultaneously, to multiple (different)
tests for determining its validity, thereby creating the possibility of inconsistent results
under those different tests. To be clear, we conclude that the validity of an antenuptial
agreement addressing marital property is determined solely by the common-law
procedural-and-substantive-fairness test, whether or not that agreement also addresses
nonmarital property.

We believe that this conclusion is compelled by the third sentence of subdivision 1 of the
statute, as that sentence was interpreted by the supreme court in McKee Johnson: That
sentence refers to antenuptial agreements that “cover[] or include[] marital property.”
Minn. Stat. § 519.11, subd. 1. After finding the sentence ambiguous, the supreme court
interpreted the sentence to require application of the common law to determine the validity
of such agreements. And, after identifying the common-law standard for procedural
fairness, which the statute “did not alter,” the supreme court ruled that the agreement in
McKee-Johnson was procedurally fair, and remanded the case to the district court for
“review of the substantive fairness of the agreement” at inception and, if necessary, its
fairness at enforcement. McKee-Johnson, 444 N.W.2d at 265, 267 (emphasis added).
Based on McKee-Johnson’s construction of the statute, there is only one test that applies
to antenuptial agreements addressing marital property, and that one test is the common-law
procedural-and-substantive-fairness test. In contrast, under the dissent’s analysis, if an
agreement including marital property fails the statutory test for procedural fairness, that


                                            12
       B. Application to this case

       The district court’s order analyzed the antenuptial agreement for procedural and

substantive fairness. Regarding procedural fairness, the district court equated procedural

fairness with satisfaction of the statutory provisions of full and fair disclosure and

opportunity to consult with legal counsel, and found the agreement procedurally defective

because wife did not have a meaningful opportunity to consult counsel of her choice.

       To the extent that the district court relied on the statute for the standard for

evaluating procedural fairness, the district court erred. As noted above, Kinney identifies

the common-law analysis as:

              (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 of 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 124. The opportunity to consult independent counsel is a relevant factor in making

that analysis. Id. at 125.




same agreement must then be analyzed under the common-law procedural fairness test,
with the possible result that the same agreement could be procedurally unfair under the
statute but procedurally fair under the common law. We believe this reading of Minn. Stat.
§ 519.11 introduces more, not less, confusion and uncertainty into the process of assessing
the validity of antenuptial agreements. We also believe it unlikely that this two-step
assessment of procedural fairness was contemplated by McKee-Johnson. According to
McKee-Johnson, the statutory procedural-fairness test and the common-law procedural-
fairness test were identical; there would have been no reason to apply the same test twice.




                                            13
         The parties agree that wife bears the burden of proving that the agreement is

invalid.5 The parties do not dispute that there was full and fair disclosure of assets. The

district court’s findings do not touch on the adequacy of consideration for the agreement.

With respect to the parties’ knowledge of the particulars of the agreement and how they

affected their rights, the district court found that wife consulted counsel but did not make

findings regarding whether wife had knowledge of provisions of the agreement and how

they impacted her rights. The record shows, however, that wife acknowledged in testimony

that her attorney explained her rights as a married person and the effect of the agreement

in the event of divorce, and wife affirmed that her attorney made no suggestions or

recommendations regarding the agreement. Finally, although the district court analyzed

the agreement under a different framework, it in essence found that the agreement was

procured by duress and, with respect to consultation with counsel, that wife’s opportunity

was not meaningful because of the short timeframe and because it was not the counsel of

her choice.


5
    Kinney states:

                [U]nder common law the burden of proof is on the proponent
                of an antenuptial agreement when (1) the parties stand in a
                confidential relationship and (2) the agreement is not supported
                by adequate consideration. But when . . . the parties stand in a
                confidential relationship and the district court finds that the
                antenuptial agreement is supported by adequate consideration,
                we conclude that under common law the burden is on the party
                challenging the agreement.

733 N.W.2d at 127 (footnote omitted). Kinney also notes that “[a] confidential or fiduciary
relationship between the parties to an antenuptial agreement is usually presumed.” Id. at
124 n.7.

                                              14
       The district court based its determination that wife did not have a meaningful

opportunity to consult independent counsel on a number of facts. First, husband gave wife

the agreement only three days before the parties’ departure for the Cayman Islands for their

wedding, despite wife’s mixed reactions to the requirement of an agreement in the parties’

prior discussions. Second, the parties’ families had already paid for, and some had already

started, their travels to the wedding site. Third, husband was clear in conversations with

wife that if wife did not sign the agreement there would be no wedding, and the district

court found husband’s testimony that the agreement was negotiable not credible. Fourth,

wife tried to meet with her attorney from a previous matter but was unable to do so. Fifth,

wife was previously unaware of husband’s net worth or assets as husband had intentionally

kept financial information from her.

       As found by the district court, husband “used the wedding deadline to create an

atmosphere of pressure that resulted in the [wife] not having an adequate opportunity to

negotiate any of the terms of the premarital agreement.” And the record shows that

husband did so even though he had spent a month communicating with his lawyer and

revising the agreement before presenting it to wife. The findings of fact supporting the

district court’s determination that wife was subject to coercion and duress are supported by

the record.

       Certainly, the fact that wife was advised of her rights by a lawyer (even if not her

preferred lawyer) weighs in favor of validity of the agreement. However, the issue of unfair

influence or duress is also relevant, and the district court’s findings touching on that issue

are supported by the record. Under Kinney’s multifactor procedural-fairness test, we are


                                             15
not left with the firm and definite conviction that the district court erred. See Goldman v.

Greenwood, 748 N.W.2d 279, 284 (Minn. 2008) (“Findings of fact are clearly erroneous

where an appellate court is left with the definite and firm conviction that a mistake has

been made.” (quotation omitted)). And because a lack of procedural fairness is fatal to the

validity of the agreement, we affirm the district court’s decision invalidating the antenuptial

agreement.

II.      The district court did not abuse its discretion in its award of marital property.

         Husband argues that the district court abused its discretion in awarding wife

$750,000 as part of its equitable division of the marital estate. The district court has broad

discretion over the division of marital property. Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn.

App. 2005). We will not alter a property division “absent a clear abuse of discretion or an

erroneous application of the law,” even if we would have taken a different approach. Id.

This court will affirm a district court’s division of property if that division has “an

acceptable basis in fact and principle.” Antone v. Antone, 645 N.W.2d 96, 100 (Minn.

2002).

         Minn. Stat. § 518.58, subd. 1 (2016), provides that a district court “shall make a just

and equitable division of the marital property of the parties” after considering several

factors. Those factors include “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.” Id. The district court must consider the value of services

provided by either spouse “as a homemaker.” Id. Additionally, for purposes of equitable


                                               16
division of the marital estate, “[i]t 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.

       The district court found that the value of the marital estate was $1,898,516. The

court found that the best evidence of the estate’s value was a December 2009 balance sheet

dated shortly before the parties separated in 2010 and signed by both parties, identifying

the parties’ assets and liabilities. From that balance sheet, the court determined the parties’

net worth. The court then subtracted from that amount the value of nonmarital assets

husband had brought to the marriage. The net result was the value of the marital estate.

Husband argues that “the best evidence of the value of the parties’ marital estate is not the

December 2009 balance sheet,” but he does not identify better evidence to determine the

marital estate’s value. We conclude that the district court’s finding is supported by the

record.

       The district court also determined that in 2012, during the pendency of the divorce

proceedings, husband liquidated approximately $1.5 million in stored grain,

              claiming that he lost financing and had to reduce his operation
              from 3100 acres to 172, but avoided characterizing that as
              income for taxes due to accelerated depreciation on equipment
              that obviously used [sic] to farm ground for his father, as it was
              not necessary for farming a reduced sized operation of 172
              acres or so.

The district court found husband’s explanation for downsizing his farming operation in

2012 not credible and not supported by the evidence. The court concluded that husband

violated Minn. Stat. § 518.58, subd. 1a, by “transferring or disposing of marital assets not



                                              17
in the usual course of business by liquidating $1,500,000.00 in grain in 2012 and converting

a portion of the proceeds to equipment and building, and using inputs in the sum of

$1,600,000.00 to grow, cultivate, and harvest the crops of another in 2012,” without the

consent of wife.

       The district court additionally concluded that “[husband] shall pay [wife] as and for

equitable division of marital property the sum of $750,000.00.” In its memorandum

attached to its order, the court explained that wife “is entitled to half of the fraudulently

transferred or disposed of grain sales, or $750,000, as a fair and equitable division of the

marital property of the parties, and as compensation to [wife] for [husband’s] diversion of

marital assets without her permission or consent.”

       While the record contains conflicting evidence as to whether husband’s 2012

conduct constituted a dissipation of marital assets, we need not decide whether the district

court’s finding of dissipation was clearly erroneous. Husband argues that the district

court’s dissipation determination was error, but he does not demonstrate how the value of

the marital estate would materially change without the dissipation determination. As

explained by the dissent, if this transaction is not dissipation, it is zero-sum, and therefore

has no effect on the value of the marital estate. As the appellant, it is husband’s burden to

demonstrate not only that the district court’s resolution of the dissipation issue was error,

but also that this error resulted in a prejudicial change to value of the marital estate. See

Minn. R. Civ. P. 61 (requiring appellate courts to ignore harmless error); Johnson v.

Johnson, 277 N.W.2d 208, 211 (Minn. 1979) (“Exactitude is not required of the [district]




                                              18
court in the valuation of assets in a dissolution proceeding; it is only necessary that the

value arrived at lies within a reasonable range of figures.”).

       The district court concluded that wife was entitled to $750,000 as a fair and

equitable division of marital assets and as compensation for husband’s diversion of assets.

We need not examine the validity of the district court’s underlying reasons for choosing

$750,000 as the exact figure if we determine that husband failed to prove that the figure

does not represent an equitable division of the marital estate. See Katz v. Katz, 408 N.W.2d

835, 839 (Minn. 1987) (“[Appellate courts] will not reverse a correct decision simply

because it is based on incorrect reasons.”). Based on the conclusive statutory presumption

that wife substantially contributed to the acquisition of income and property during the

marriage, and the district court’s findings that wife worked throughout the marriage both

on the farm and as a homemaker, we cannot conclude that a division of the marital estate

that awards wife approximately 40% of the marital estate is a clear abuse of discretion with

no basis in fact or principle.

III.   The district court did not err in awarding temporary rehabilitative spousal
       maintenance, but did err in determining its award of permanent spousal
       maintenance.

       Husband argues the district court also abused its discretion by awarding wife both

temporary rehabilitative and permanent spousal maintenance. Minn. Stat. § 518.552, subd.

2 (2016), authorizes a district court to grant maintenance to either spouse “in amounts and

for periods of time, either temporary or permanent, as the court deems just.” The statute

explicitly rejects a presumption for temporary awards, instead instructing that in the case

of “uncertainty as to the necessity of a permanent award, the court shall order a permanent


                                             19
award leaving its order open for later modification.” Minn. Stat. § 518.552, subd. 3 (2016).

The district court “has broad discretion in deciding whether to award maintenance and

before an appellate court determines that there has been a clear abuse of that discretion, it

must determine that there must be a clearly erroneous conclusion that is against logic and

the facts on record.” Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).

       As a threshold matter, husband argues that wife waived her rights to spousal

maintenance during her testimony at the 2011 hearing on the validity of the antenuptial

agreement. However, from our review of the record, it does not appear that husband raised

this issue during the trial. Thus, the issue of waiver of spousal maintenance is not properly

before us. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (“A reviewing court

must generally consider only those issues that the record shows were presented and

considered by the [district] court in deciding the matter before it.” (quotation omitted)).6

       The district court awarded wife temporary rehabilitative spousal maintenance in an

amount of $1,725 per month for the period from the parties’ separation until the court’s

order. Because five years had already passed, the monthly award was converted to a

liquidated payment of $103,500. In addition to the lump-sum rehabilitative maintenance,

the district court also awarded wife $862 per month in permanent maintenance, starting the



6
  To the extent that husband believes he raised the issue to the district court, the district
court, by virtue of awarding spousal maintenance, implicitly found that wife did not waive
it, and our review of the 2011 testimony of wife would support such an implicit finding.
Wife’s 2011 testimony may be fairly read as merely acknowledging that the antenuptial
agreement, which she was contesting, included waiver of spousal maintenance, not that
wife was waiving her claim to spousal maintenance going forward, irrespective of the
agreement.

                                             20
month of the court’s order. The court explained, “[A]lthough [wife] has established a basis

for a permanent award of maintenance, she has not demonstrated justification for the figure

asserted. The Court has awarded approximately ½ of the temporary amount, or $862.00

per month, as a permanent maintenance amount.”

       There is ample evidence in the record demonstrating that the district court weighed

the appropriate statutory factors and determined that wife met her burden in demonstrating

her need for temporary rehabilitative spousal maintenance. The district court addressed

the eight factors listed in Minn. Stat. § 518.552, subd. 2(a)-(h), making specific findings

for each. For instance, regarding the statutory factor of the financial resources of the

parties, the district court found that husband “has significant financial resources due to his

successful grain farming operation, and [wife] has limited ability to meet her needs

independently.” Regarding the statutory standard-of-living factor, the district court found

“that the parties lived a high standard of living during their marriage, with living expenses

approaching $9,000 a month.” In considering the statutory factors of length of marriage

and loss of earnings, the district court found that wife “credibly testified that [husband] did

not want her working outside the home,” causing her “diminishment in some work skills

outside the farm.” Considering the statutory factors of age and the physical and emotional

condition of the spouse seeking maintenance, the district court noted that wife was “44

years old and in reasonable physical and emotional condition.” Because the district court

exercised its discretion in a manner consistent with the requirements of section 518.552,

and because the facts cited in the court’s discussion of each of the eight factors have support




                                              21
in the record, we cannot conclude that the award of temporary rehabilitative maintenance

from 2010 through the date of the order is clearly erroneous.

       With respect to the award of permanent spousal maintenance on a going-forward

basis from the date of the order, however, we conclude that the district court’s findings are

insufficient. Minn. Stat. § 518.552, subd. 1 (2016), allows a district court, in its discretion,

to award spousal maintenance if the spouse seeking maintenance:

                   (a) lacks sufficient property, including marital property
              apportioned to the spouse, to provide for reasonable needs of
              the spouse considering the standard of living established
              during the marriage, especially, but not limited to, a period of
              training or education, or
                   (b) is unable to provide adequate self-support, after
              considering the standard of living established during the
              marriage and all relevant circumstances, through appropriate
              employment, or is the custodian of a child whose condition or
              circumstances make it appropriate that the custodian not be
              required to seek employment outside the home.

(Emphasis added.)

       As part of the equitable distribution of the marital estate, the district court awarded

wife $750,000 in liquid assets. While a spouse is not expected to invade the principal of

investments to meet his or her monthly living expenses, Minnesota has “long recognized

that a district court must consider all income of the requesting spouse, including income

generated from marital property received in the dissolution.” Curtis v. Curtis, 887 N.W.2d

249, 252 (Minn. 2016). The district court did not include any findings indicating that it

took into consideration the income from this liquid asset in its computations of wife’s

earning potential for purposes of permanent spousal maintenance. It is therefore unclear

whether the district court took this income into account.


                                              22
       Therefore, we remand to the district court the issue of permanent spousal

maintenance with instructions to recalculate wife’s earning potential, taking into

consideration potential investment income generated from the marital property

distribution, and to adjust the permanent-spousal-maintenance award, if appropriate.

IV.    The district court did not abuse its discretion in awarding attorney fees.

       Finally, husband argues that the district court abused its discretion when it awarded

wife need-based attorney fees.

       We review a district court’s award of need-based attorney fees for an abuse of

discretion. Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999); but see Minn. Stat.

§ 518.14, subd. 1 (2016) (stating that the district court “shall” award need-based attorney

fees if the statutory requirements are met). A district court “shall award attorney’s fees,

costs, and disbursements in an amount necessary to enable a party to carry on or contest

the proceeding” where it finds:

                     (1) that the fees are necessary for the good faith
              assertion of the party’s rights in the proceeding and will not
              contribute unnecessarily to the length and expense of the
              proceeding;
                     (2) that the party from whom fees, costs, and
              disbursements are sought has the means to pay them; and
                     (3) that the party to whom fees, costs, and
              disbursements are awarded does not have the means to pay
              them.

Minn. Stat. § 518.14, subd. 1.

       Here, the record supports the finding by the district court that wife’s attorney fees

were necessary for the good-faith assertion of her rights because wife needed to assert her

rights to custody, marital property, and spousal maintenance throughout the proceedings.


                                            23
In addition, based on wife’s low wages and reliance on government assistance, it was not

clear error for the district court to conclude that wife could not pay her own attorney fees.

Finally, husband’s successful career as a grain farmer, with annual gross income near or

greater than $100,000 between 2009 and 2013, indicates that the district court did not err

in determining that he could pay attorney fees. As a result, the district court did not abuse

its discretion when it awarded wife $168,000 in attorney fees.

                                      DECISION

       Although the district court did not evaluate the procedural fairness of the antenuptial

agreement using the proper common-law standard, because the district court’s findings of

fact support the conclusion that the agreement is invalid under the common-law standard,

we affirm the district court’s order declaring the antenuptial agreement procedurally

invalid. We also conclude that the district court did not abuse its discretion in its equitable

division of the marital estate, its determination of temporary rehabilitative spousal

maintenance, or its award of need-based attorney fees to wife. However, we remand for

additional findings as to wife’s earning potential, taking into consideration the marital-

property division, and an adjustment of permanent maintenance, if appropriate.

       Affirmed in part, reversed in part, and remanded.




                                              24
HOOTEN, Judge (concurring in part, dissenting in part)

       Because the majority’s decision ignores the plain language of Minn. Stat. § 519.11

(2016) and applies a standard that creates a level of uncertainty that is contrary to

Minnesota’s long history of public policy favoring the validity of antenuptial agreements,

McKee-Johnson v. Johnson, 444 N.W.2d 259, 265 (Minn. 1989), and because the district

court erred in determining that husband dissipated assets, I respectfully dissent in part.

                                              I.

       McKee-Johnson instructs that the validity of an antenuptial agreement executed on

or after August 1, 1979, requires “a review of both the procedural and substantive fairness

of the contract.” 444 N.W.2d at 265. Generally, when the legislature acts to modify the

common law, a court interpreting the resulting statute should not assume that the legislature

intended to modify the common law “any further than that which is expressly declared or

clearly indicated.” Do v. Am. Family Mut. Ins. Co., 779 N.W.2d 853, 858 (Minn. 2010)

(quotation omitted). After an extensive review of the legislative history of section 519.11,

McKee-Johnson determined that the statute addresses only procedural fairness. 444

N.W.2d at 264 (“The purpose of the bill was codification of procedural fairness

requirements precedent to the execution of a valid antenuptial agreement.”). As recognized

by the court in McKee-Johnson, the statute does not address substantive fairness of the

terms of an antenuptial agreement, which must be analyzed under common law principles

of contract.1


1
  The supreme court specifically identified unconscionability as the appropriate standard
for substantive fairness review, determining that such a standard “affords proper weight to


                                           C/D-1
         “The goal of statutory interpretation is to effectuate the intent of the [l]egislature.”

Staab v. Diocese of St. Cloud, 853 N.W.2d 713, 716 (Minn. 2014). If that intent is clear

from the unambiguous language of the statute, we apply the statute according to its plain

meaning. Id. at 716–17. In the absence of ambiguity, “statutory construction is neither

necessary nor permitted.” Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.

2001).     Appellate courts may not “rewrite a statute under the guise of statutory

interpretation.” Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431, 438 (Minn. 2009).

         The first sentence of Minn. Stat. § 519.11, subd. 1, provides that an antenuptial

agreement executed on or after August 1, 1979, “shall be valid and enforceable if there is

. . . a full and fair disclosure of the earnings and property of each party” and “the parties

have had an opportunity to consult with legal counsel of their own choice.” There is no

language in this first sentence that limits its application to antenuptial agreements

governing nonmarital property or excludes antenuptial agreements governing marital

property from the scope of the statute.

         Rather, the expansive nature of the statute—and its application to all antenuptial

agreements—is further illustrated by the third sentence of the statute, which provides, “This

section shall not be construed to make invalid or unenforceable any antenuptial agreement

or settlement made and executed in conformity with this section because the agreement or

settlement covers or includes marital property, if the agreement or settlement would be

valid and enforceable without regard to this section.” (Emphasis added). As indicated by



the freedom of contract concept by indication that mere or slight unfairness or one-
sidedness is insufficient to justify invalidation.” Id. at 267 n.7.

                                              C/D-2
the emphasized language in the first clause, this sentence operates as a savings provision

that a court should only turn to in circumstances where the statute would otherwise

invalidate an antenuptial agreement—when the circumstances underlying the execution of

the agreement fail to conform to the disclosure-and-access-to-counsel standard in the first

sentence.   As is clear from the plain language of the statute, when the statutory

requirements of procedural fairness are not met, a court must apply the common law to

determine the procedural fairness of an antenuptial agreement.

       Nothing in McKee-Johnson undermines this reading of the plain language of the

statute. In order to understand the supreme court’s decision in McKee-Johnson, it must be

read in context with this court’s decision in that case. In McKee-Johnson, this court held

that section 519.11 operated to void provisions of antenuptial agreements addressing

marital property. 429 N.W.2d 689, 693–94 (Minn. App. 1988). The supreme court rejected

that legal premise and vacated this court’s opinion. 444 N.W.2d at 261, 264–65. In so

doing, the supreme court highlighted the public policy in favor of enforcement of

antenuptial agreements, including agreements containing provisions relating to marital

property, both under the common law and in the legislative history of section 519.11. Id

at 264–65. In reaction to this court’s opinion, the supreme court answered the question of

whether the provisions of an antenuptial agreement relating to marital property are void as

a matter of law, but did not directly address the question presented in this case: whether

the procedural fairness of provisions relating to marital property are evaluated under the

disclosure-and-access-to-counsel standard provided by the statute or under the common

law.


                                          C/D-3
       The supreme court did not decide this issue because it believed that the factors to be

evaluated under the statute and under the common law were “substantially identical” and

that the statute embodied the common law.2 Id. at 265. In determining that the provisions

of the antenuptial agreement governing marital property were executed in a manner that

was procedurally fair, the supreme court considered whether there was full financial

disclosure between the parties and whether the parties each had access to advice from

independent counsel, the same factors that are provided by section 519.11. Id. at 265–66.

Importantly, contrary to the position of the majority, the supreme court, by applying the

two statutory factors, did not hold that only the common law applies when determining

whether the provisions of an antenuptial agreement relating to marital property are

executed in a procedurally fair manner.

       The majority notes that the supreme court stated that “to determine whether the

provisions of this contract relating to ‘after acquired’ property are valid and enforceable,

we must look to our common law for guidance.” Id. at 265. The majority is mistaken in

believing that this quote reflects the holding of the case; if this were the holding, the

supreme court would not have addressed the issue of whether the criteria for evaluating

procedural fairness were identical under the statute and the common law. Two of the



2
  Unlike in the instant case, where there is no dispute that wife consulted with independent
counsel of her own choosing, there was a question as to whether the wife in McKee-
Johnson had “an opportunity” to consult with independent counsel. By deciding that there
was no difference in the statutory and common law requirements of procedural fairness,
the supreme court, by simply holding that she waived her opportunity to consult with
counsel, did not need to address the issue of whether it was proceeding under the first
sentence or the third sentence of the statute in determining whether the antenuptial
agreement was procedurally fair.

                                           C/D-4
supreme court’s syllabi points set forth its holding in McKee-Johnson: (1) “[p]rovisions in

an antenuptial agreement [are] not void and unenforceable as a matter of law solely because

they relate[] to distribution of marital property upon termination of the marriage”; and

(2) “[an] [a]ntenuptial agreement voluntarily entered into by competent adult parties

following full financial disclosure and opportunity to consult with independent counsel

[meets] common law and statutory standards of procedural fairness.” Id. at 260.

       The quote relied on by the majority must be read within the context of the issue that

was presented to the court, i.e., whether the provisions of an antenuptial agreement entered

into after the enactment of section 519.11 purporting to address marital property were void

as a matter of law. In response to that issue, the supreme court explained immediately

following the quote that such antenuptial agreements were valid even under the common

law, as long as they were procedurally fair. Id. at 265.

       The majority’s reading of section 519.11 and the supreme court’s decision in

McKee-Johnson, requiring that the procedural fairness of provisions of an antenuptial

agreement relating to marital property be evaluated under the common law, implicates

three possible analyses. One possible analysis is that the statute governs nonmarital

property, while the multifactor balancing test from the common law as provided in In re

Estate of Kinney, 733 N.W.2d 118, 124 (Minn. 2007), governs marital property, creating

two separate standards governing procedural fairness for a court to apply if the agreement

contains both marital and nonmarital property. Under such an analysis, it would be

possible for a court, evaluating the same circumstances surrounding the creation and

execution of the same agreement, to determine that a spouse had been afforded procedural


                                           C/D-5
fairness regarding the provisions of the agreement relating to nonmarital property but not

those relating to marital property, or vice versa. This standard for determining procedural

fairness could lead to illogical results, and would be unnecessarily confusing and

unworkable.

       Another possible analysis indicated by the majority’s interpretation of section

519.11 and McKee-Johnson is that the common law applies in evaluating the procedural

fairness of the agreement, regardless of whether the agreement addresses marital property,

nonmarital property, or both. However, such an analysis would render the statute’s decree

that an antenuptial contract “shall be valid” as long as there was disclosure and access to

counsel meaningless, eviscerating the statute and violating the statutory provision that in

determining legislative intent courts are to presume that the legislature intended “the entire

statute to be effective and certain.” Minn. Stat. § 645.17(2) (2016).

       This analysis would also be an absurd reading of McKee-Johnson, as that decision

did not address nonmarital property. 444 N.W.2d at 262 n.2. The McKee-Johnson court

noted that “[t]he thrust of the bill [that became section 519.11] was . . . to make it more

difficult to subsequently challenge the validity of an antenuptial agreement covering

nonmarital property.”3 Id. at 264. There is nothing in McKee-Johnson that dictates the

application of the common law to all antenuptial agreements, even those containing only

provisions addressing nonmarital property, to the exclusion of the application of the statute.



3
 Though recognizing that part of the “thrust of the bill” related to nonmarital property, the
supreme court “[found] nothing in the legislative history which indicates that the statute
was hostile towards agreements which contained provisions relative to the disposition of
marital property.” Id. at 264.

                                           C/D-6
In fact, as indicated by the McKee-Johnson court’s examination of the legislative history,

the legislature specifically intended that section 519.11 govern the procedural fairness

analysis of agreements pertaining to nonmarital property. Id.

       A third possible analysis, apparently adopted by the majority, is that the common

law applies to all of the provisions in an antenuptial agreement if the agreement contains

any provision addressing marital property. However, this analysis suffers from many of

the same flaws as the previous analyses. Such an analysis rewrites the statute to say that

“an antenuptial contract that does not contain any provisions addressing marital property”

shall be valid if the disclosure-and-access-to-counsel standard is met. As described above,

nothing in McKee-Johnson indicates that the supreme court interpreted the statute to

require that the common law be consulted to determine the procedural fairness of any

antenuptial agreement addressing marital property, much less provisions of an antenuptial

agreement pertaining to nonmarital property. Furthermore, this analysis would also

eviscerate section 519.11, as the statute would only apply to antenuptial agreements solely

addressing nonmarital property.     Such agreements are likely uncommon, given that

nonmarital property owned by one spouse is generally not awarded to the other spouse.

See Minn. Stat. § 518.58, subd. 1, 2 (2016) (providing that, while a district court “shall

make a just and equitable division of the marital property,” a district court may only

apportion up to one-half of a spouse’s nonmarital property to the other spouse if the

spouse’s resources or property, including the spouse’s portion of the marital property, “are

so inadequate as to work an unfair hardship”).




                                          C/D-7
       Any of the analyses implicated by the majority’s reading of the statute and McKee-

Johnson would invite parties to litigate every antenuptial agreement addressing marital

property, in contravention of the legislature’s intent in enacting the statute. As stated

above, “[t]he goal of statutory interpretation is to effectuate the intent of the [l]egislature.”

Staab, 853 N.W.2d at 716. Given the long history of public policy in Minnesota favoring

the enforceability of antenuptial agreements covering both marital and nonmarital

property,4 I cannot support an interpretation of section 519.11 that implies the legislature

intended to create this level of uncertainty for attorneys, courts, and most importantly,

couples preparing for marriage.

       The statutory interpretation adopted by the majority effectively eviscerates or

rewrites the first sentence of the statute. Because we may not “rewrite a statute under the

guise of statutory interpretation,” Laase, 776 N.W.2d at 438, I would apply the statute as

written. As dictated by the plain language of the statute, I would apply the procedural

fairness standard in the first sentence of section 519.11 to all antenuptial agreements

executed on or after August 1, 1979. I would only resort to the common law when the

third sentence of the statute is invoked—when application of the first sentence would

otherwise invalidate an agreement.




4
  See McKee-Johnson, 444 N.W.2d at 265 (stating, after extensive review of cases, that
“premarital agreements, if fairly arrived at, following full disclosure of financial condition,
and with opportunity to consult independently with counsel, have been favored in the
common law of Minnesota—even though marital property was included within their
scope”).

                                             C/D-8
       Applying the statutory procedural fairness standard to all antenuptial agreements,

regardless of the type of property covered, affords a higher degree of certainty to both

parties seeking to structure their financial affairs in advance of their marriage and the

attorneys who advise them. See Minn. Stat. § 645.17 (2) (providing that courts should

assume legislature intends statutes to be “effective and certain”). It also offers a much

easier standard for courts to apply in evaluating the procedural fairness of antenuptial

agreements and discourages speculative litigation. Finally, this interpretation avoids the

possibility of unreasonable and inconsistent results, such as would result from the

application of two different standards regarding the procedural fairness of an antenuptial

agreement. See id. (1) (2016) (providing that courts should assume legislature does not

intend results that are unreasonable).

       Because the district court considered factors other than those required by section

519.11 and the undisputed facts of this case demonstrate that the antenuptial agreement

meets the requirements of section 519.11, I would reverse the district court’s determination

that this antenuptial agreement was executed in a procedurally unfair manner. Further,

because substantive fairness of an antenuptial agreement must be evaluated based on the

terms of the agreement and the district court did not consider the terms when it found the

agreement was substantively unfair, I would reverse the district court’s substantive fairness

determination and remand with instructions to evaluate the agreement’s terms and enforce

the terms that are substantively fair.




                                           C/D-9
                                              I.

       I also cannot concur with the majority’s decision to affirm the district court’s

equitable division of property because the district court erred in determining that husband

dissipated assets during the divorce proceedings.

       Minn. Stat. § 518.58, subd. 1a (2016) provides that:

              If the court finds that a party to a marriage, without consent of
              the other party, has in contemplation of commencing, or during
              the pendency of, the current dissolution . . . disposed of marital
              assets except in the usual course of business or for the
              necessities of life, the court shall compensate the other party
              by placing both parties in the same position that they would
              have been in had the . . . disposal not occurred.

Here, the district court made a factual finding that in 2012 husband “liquidated his crop

inventory,” which was worth approximately $1.5 million, and with the proceeds “paid off

his operating loan, and converted the balance of the proceeds to new equipment, which he

used to farm the same property with his father being the farmer of record.” Based on this

finding, the district court concluded that the liquidation of stored crops was a dissipation

of marital assets and that wife was “entitled to half of the fraudulently transferred or

disposed of grain sales, or $750,000, as a fair and equitable division of the marital property

of the parties, and as compensation . . . for [husband’s] diversion of marital assets.”

       We have defined dissipation as “frivolous, unjustified spending of marital assets.”

Volesky v. Volesky, 412 N.W.2d 750, 752 (Minn. App. 1987). The statute exempts

spending “in the usual course of business.” Minn. Stat. § 518.58, subd. 1a. Thus, to the

extent that husband used the proceeds from the sales of an asset from the farm operation to




                                           C/D-10
pay off the liabilities of the farm operation or to purchase equipment or farm inputs5 owned

by the farm operation, I see this as a zero-sum transaction, which has no effect on the

overall net value of the farm operation. See Bollenbach v. Bollenbach, 285 Minn. 418,

435, 175 N.W.2d 148, 159 (1970) (“If the transaction is to be overlooked for purposes of

establishing defendant’s net worth, both asset and liability must be deleted to avoid

punitive consequences.”).

       However, the district court also made findings of fact that husband used some of the

proceeds of the 2012 crop liquidation to purchase farm inputs that were then provided to

his father without compensation. While use of the proceeds of the 2012 crop liquidation

that were used to pay legitimate farm debts or used to purchase equipment owned or farm

inputs utilized by the farm operation was not a dissipation of marital assets, to the extent

that those proceeds were used to purchase farm inputs that were expended by appellant to

farm his father’s land without compensation, those expenditures were a dissipation of

marital assets.

       While it is true that a district court is not required to be exact in its valuation of the

marital estate, Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979), it is impossible to

determine from the district court’s findings what effect its error in determining dissipation

had on the valuation of the marital estate. Therefore, even if I agreed with the majority

that the antenuptial agreement was invalid, I would nevertheless reverse the district court’s




5
 According to wife’s expert, farm inputs include seeds, fertilizer, pesticides, and other
consumable products that are essential in any farm operation.

                                            C/D-11
property division and remand for a recalculation and equitable division of the marital

estate.

                                             III.

          Assuming arguendo that the district court properly determined that the antenuptial

agreement is invalid, I concur with the majority’s conclusions regarding spousal

maintenance. Regardless of the validity of the antenuptial agreement, I concur with the

majority’s conclusion regarding need-based attorney fees.




                                           C/D-12
