author: HANSON, Judge.

text:
    In re Cheryl Pete GRIGSBY, Petitioner, Respondent, v. Frederick J. GRIGSBY, Jr., Appellant.
    No. C0-01-2264.
    Court of Appeals of Minnesota.
    July 30, 2002.

      A. Larry Katz, Susan A. Daudelin, Katz & Manka, Ltd., Minneapolis, MN, for respondent.
    Frank R. Berman, Julia A. O’Brien, Frank R. Berman, P.A., Bloomington, MN; and Daniel J. Goldberg, Messerli & Kramer, P.A., Minneapolis, MN, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge, KLAPHAKE, Judge, and HANSON, Judge.
   OPINION

HANSON, Judge.

In this marital dissolution action, appellant-husband argues that the district court’s property division should be reversed because it (a) uses the trial date as the marital property valuation date, (b) includes in the marital estate the benefits of his employment-separation agreement that was signed after the valuation date, (c) fails to adjust for the tax consequences of his employment-separation benefits and his retirement assets, and (d) does not distribute in kind certain investment assets that had suffered a substantial decline in value during the proceedings. In addition, husband argues that the district court abused it’s discretion in determining spousal maintenance by amending a finding of fact on husband’s monthly expenses without amending a corresponding conclusion of law that impacted his maintenance obligation. We affirm.

FACTS

Appellant-husband Frederick J. Grigs-by, Jr. and respondent-wife Cheryl Pete Grigsby were married for more than fifteen years. In 1998, husband accepted a new job as a human resources executive in California, negotiating an employment agreement that included a provision for severance pay in the event of his involuntary termination. After he moved to California, wife filed a dissolution petition.

On September 25, 2000, the dissolution trial commenced before a special magistrate. At that time, husband intended to resign from his employment position and was negotiating an alternative employment-separation agreement with his employer. Husband did not disclose these negotiations at the trial. Husband resigned effective October 31, 2000. His employment-separation agreement, denominated as a “Settlement and Release Agreement,” was signed by husband on October 19, 2000. It contained a variety of terms, including a noncompete clause and a waiver of all employment-related claims against his employer. The agreement, as a whole, was valued at about $1,800,000.

On November 21, 2000, the magistrate reopened the record to take additional evidence with respect to the employment-separation agreement. On May 10, 2001, the district court adopted the magistrate’s proposed dissolution judgment that set the marital property valuation date at June 29, 2000, the date of a scheduled pretrial conference, and treated the benefits of husband’s employment-separation agreement entirely as marital property. Husband moved to amend the judgment or for a new trial, contending that the employment-separation agreement was made after the valuation date and all benefits should be treated as nonmarital property. On October 24, 2001, the magistrate recommended and the district court ordered the amendment of the judgment to change the valuation date to the later date of the opening of trial on September 25, 2000, and confirmed that all of the benefits of husband’s employment-separation agreement were marital property. This appeal followed.

ISSUES

1. Did the district court abuse its discretion by changing the marital property valuation date to the first day of trial?
2. Did the district court err by finding that the benefits of the employment-separation agreement, signed after the valuation date, were marital property?
3. Did the district court make appropriate adjustments for the tax conse-quences of the benefits of the husband’s employment-separation agreement and of his retirement assets?
4. Did the district court abuse its discretion by failing to redistribute in kind two stock accounts?
5. Did the district court abuse its discretion by not amending a conclusion of law with respect to maintenance after it amended a finding of fact regarding husband’s expenses?

ANALYSIS

“District courts have broad discretion over the division of marital property, and we will not disturb the division on appeal absent a clear abuse of discretion.” Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn.App.2000) (citation omitted), review denied (Minn. Oct. 25, 2000). To conclude that the district court abused its discretion, the district court’s factual findings must be “against logic and the facts on [the] record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984) (citation omitted). We will affirm the district court’s division of property “if it had an acceptable basis in fact and principle.” Servin v. Servin, 345 N.W.2d 754, 758 (Minn.1984) (citations omitted).

I

Husband argues that the district court improperly changed the marital property valuation date from the date of a scheduled pretrial conference to the date that trial commenced, in part to include in marital property the benefits he received under the employment-separation agreement.

Minnesota law requires the district court to make a “just and equitable” division of marital property, after considering all relevant factors, including those listed in Minn.Stat. § 518.58, subd. 1 (2000). “Marital property” is defined as

property, real or personal, * * * acquired by the parties, or either of them, * * * at any time during the existence of the marriage relation between them, * * * but prior to the date of valuation under section 518.58, subdivision 1.

Minn.Stat. § 518.54, subd. 6 (2000). The valuation date is determined as follows:

The court shall value marital assets for purposes of division between the parties as of the day of the initially scheduled prehearing settlement conference, unless a different date is agreed upon by the parties, or unless the court makes specific findings that another date of valuation is fair and equitable.

Minn.Stat. § 518.58, subd. 1 (emphasis added). The district court has broad discretion in setting the marital property valuation date. Desrosier v. Desrosier, 551 N.W.2d 507, 510 (Minn.App.1996).

Originally, the district court determined that June 29, 2000, should be the valuation date, because the court presumed that it was the date when the first “pretrial conference” occurred. When it made that determination, the district court also found that husband had not been candid with the court when he discussed his employment status during the September trial, and that husband was actually negotiating a separation package with his employer at the time of trial. The court found that husband had a duty to disclose these negotiations, which resulted in husband acquiring $1,800,000 an amount more than double the parties’ previous estate.

In his motion for amended findings and conclusions, husband argued that the valuation date should be even earlier, proposing December 14, 1999, as the date a pretrial conference was originally scheduled but not held. In its order to amend the judgment, the district court rejected that date and also rejected the June 29, 2000, date previously used. The court specifically found that no “pretrial conference” was ever held in this case and concluded that it was appropriate to use the trial date of September 25, 2000, as the valuation date.

Because the district court made specific findings that explained its rationale for using the trial date as the valuation date, and because those findings are not clearly erroneous on this record, we hold that the district court did not abuse its discretion in setting the marital property valuation date.

II

Husband argues that the district court improperly characterized the benefits of his employment-separation agreement as marital property because (1) the benefits were acquired under the October 2000 separation agreement and did not accrue under his 1998 employment agreement, (2) the October 2000 separation agreement was signed after the valuation date, and (3) in any event, the benefits are nonmarital because they are intended to replace husband’s income from his postdissolution employment. This argument requires us to first determine what general approach the district court should use to determine whether the benefits of an employment-separation agreement are marital or non-marital property.

Mechanical vs. Analytic Approach

In the absence of specific legislative direction, courts have taken one of two basic approaches to the classification of intangible property rights obtained by a spouse through the settlement of a cause of action. John DeWitt Gregory, The Law of Equitable Distribution, ¶ 3.03[1] (1989); J. Thomas Oldham, Divorce, Separation & The Distribution of Property § 8.01[1] (2000); Grace Ganz Blumberg, Intangible Assets Recognition and Valuation, in 2 Valuation & Distribution of Marital Property § 23.08[l][a] (1998). The first is the “mechanical” approach, which relies primarily on the general statutory definitions of marital and nonmarital property to determine when the benefits were “acquired.” If acquired during the marriage and before the valuation date, the benefits are classified entirely as marital. Gregory, supra, at ¶ 3.03[1][3]; Oldham, supra, at § 8.01[1]; Blumberg, supra, at § 23.08[l][c]. The second is the “analytical” approach, which focuses on the purpose of each component of the settlement. To the extent that the settlement is intended to compensate the spouse for labor rendered during the marriage, it is considered marital, and to the extent it is intended to replace earnings from postdissolution labor, it is considered nonmarital. Gregory, supra, at ¶ 3.03[1], [2]; Oldham, supra, at § 8.01[1]; Blumberg, supra, at § 23.08[l][b].

Although there are no published Minnesota decisions dealing specifically with the benefits of employment-separation agreements, we can obtain some guidance from Minnesota decisions dealing with the classification of analogous settlement agreements. These cases appear to predominantly follow the analytical approach.

Thus, in Sweere v. Gilbert-Sweere, 534 N.W.2d 294, 300-01 (Minn.App.1995), we examined the classification of payments made to the husband under a noncompete agreement as nonmarital property. Without specific identification of the approach, we essentially applied the analytical approach. We recognized that one purpose of a noncompete agreement may be to restrict the post-marital employment of a spouse and that it would be “improper to value a marital asset using any method that gives one spouse a forced share of the other spouse’s income from postmarital employment.” Id. at 297. But we also recognized that another purpose of a non-compete agreement may be to provide a protective- device to assure the value of an employer’s goodwill. We remanded the matter to the district court with instructions that only that portion of the noncom-pete payments that “compensates the spouse for restricting post-marital personal service” can be treated as nonmarital property. Id. at 300-01 (discussing Rogers v. Rogers, 296 N.W.2d 849, 853 (Minn.1980) (holding that the marital portion of the proceeds of the sale of a business is limited to the value that is not dependent upon the spouse’s continued services)); and Lowe v. Lowe, 372 N.W.2d 65, 67 (Minn.App.1985) (affirming the valuation of wife’s business without the assumption that wife would sign a noncompete agreement because such an agreement would substantially deprive wife of her future livelihood).

Similarly, in Van de Loo v. Van de Loo, 346 N.W.2d 173 (Minn.App.1984), we applied the analytical approach to a question whether monies received by a spouse in settlement of a personal injury claim should be considered marital property. After examining the split of authority among other jurisdictions, we held that the classification of such a settlement depends upon “the purpose of the recovery rather than the timing of the recovery * * Id. at 176. We recognized that this approach permitted separate treatment of the various components of the settlement. Id. To the extent the recovery is the restoration of the physical or mental health that a spouse brought to the marriage, it is nonmarital. Id. To the extent the recovery is compensation for lost wages or medical expenses, which have diminished the marital estate, it is marital. Id. See also Ward v. Ward, 453 N.W.2d 729, 732 (Minn.App.1990) (holding that the recovery for noneconomic damages, such as pain and suffering, and for future economic damages, such as future wage losses, future loss of earning capacity or future medical expenses, are nonmarital), review denied (Minn. June 6, 1990); Hafner v. Hafner, 406 N.W.2d 590, 593 (Minn.App.1987) (holding that worker’s compensation award is marital to the extent it was received for lost wages but nonmarital if it compensates for loss of good health). But see VanderLeest v. VanderLeest, 352 N.W.2d 54, 57 (Minn.App.1984), (holding that a disability annuity is marital property because the rights to receive it arose from the labor performed by the spouse during the marriage).

Property Right Acquired before the Valuation Date

We next consider whether the benefits received by husband under his employment-separation agreement were “acquired * * * prior to the date of valuation,” as required by the definition of marital property under Minn.Stat. § 518.58, subd. 1. Under the analytical approach, the question whether benefits obtained through an employment-separation agreement are marital or nonmarital should not turn simply on the date that the agreement was signed, but requires a more detailed review of the elements of the agreement to determine their individual sources. Those that can be traced primarily to the spouse’s marital employment should be considered as having been acquired during the marriage.

Moreover, there would be a public policy concern with allowing the date of the agreement to control because the spouse who is proposing that the agreement be treated as nonmarital may simply delay the execution of the agreement until after the valuation date. The facts of this case provide a good illustration of that concern. As the district court found, at the time of the September 2000 trial, husband had already resigned his position, his resignation had been announced internally by his employer and he was negotiating his severance package. In fact, the district court found that husband had prepared the first draft of the severance agreement. For these reasons, it would be inappropriate to allow the date of the execution of the agreement to control its classification as marital or nonmarital.

We conclude that husband’s separation agreement is significantly connected to his marital employment. From a general viewpoint, husband was in a position to seek the benefits of the agreement only because of his employment status, which commenced during the marriage in 1998. Looking at the specific elements of the agreement, the dominant feature is husband’s release of his employer from all claims arising from his employment during the marriage. Thus, husband releases his employer from claims based on the “offer letter” of October 8, 1998; on the husband’s “employment with the company”; on “age discrimination in employment”; on “race discrimination in employment”; on “disability discrimination”; and on violation of laws requiring equal pay for equal work during employment. Payments made for the release of each of these claims would stem from husband’s marital employment and, at least in part, would represent compensation for injuries that allegedly occurred during the marital labor and that presumably diminished the marital estate.

While it is true that some of these claims could also give rise to damages for injuries that are nonmarital in nature (such as for pain and suffering, emotional distress or loss of future earnings or earning capacity), and the agreement releases other claims that likewise could support future damages (such as claims for wrongful discharge), we are satisfied that, on this record, the agreement is significantly connected to husband’s marital employment and, accordingly, that the district court did not abuse its discretion when it determined that the rights obtained by husband under the agreement had been “acquired” before the valuation date.

Burden of Pro.of

Having determined that husband acquired rights under the employment-separation agreement prior to the valuation date, the statutory presumption becomes applicable. Under Minn.Stat. § 518.54, subd. 5 (2000), all real or personal property acquired by the parties during their marriage and before the valuation date is presumed to be marital. See also Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn.App.1989) (stating that the party who seeks to claim that an asset acquired during the marriage is nonmarital has the burden of proof). More specifically, in applying the analytical approach to determine whether property acquired during the marriage is marital or nonmarital, the party seeking a nonmarital classification has the burden of proving that the purpose for the recovery was nonmarital in nature. See, e.g., Hafner, 406 N.W.2d at 593-94; Van de Loo, 346 N.W.2d at 177. As we noted in Van de Loo, “[ajbsent such proof, the proceeds recovered for any injury occurring during the marriage will all be treated as marital property.” Van de Loo, 346 N.W.2d at 177.

Release of Employmenir-Related Claims

Turning specifically to the elements of the employment-separation agreement, the district court should use the analytical approach to examine each of the released claims to determine whether the purpose for the payments made as to each was marital or nonmarital in nature. The record before the district court in this case contains only the employment-separation agreement and slight testimony describing the negotiations of the agreement. Husband did not provide any evidence to show the specific circumstances underlying each of the released claims, or evidence from which to determine the value of any one of them. More importantly, there was no testimony as to how the parties to the employment-separation agreement allocated the payments among the released claims. While the allocation of the parties might not be controlling, in the absence of any testimony concerning their allocation, the district court has no logical basis on which to make an apportionment of the benefits as between marital and nonmari-tal property.

We would agree with husband that at least some of the payments called for under the employment-separation agreement potentially , involve compensation of a non-marital interest, such as for pain and suffering, emotional distress or the loss of income from postdissolution labor. But husband had the burden of proving what part was nonmarital. Husband did not provide evidence to show under what circumstances he could have brought these potential claims, which of the claims would have sought compensation for nonmarital injury, or even how the total payment he received should be allocated to his release of these claims. Because husband presented insufficient evidence to satisfy his burden of proving which part of his employment separation benefits were non-marital, or any rational basis for apportioning the benefits between marital and nonmarital property, we affirm the district court’s determination that the proceeds attributable to his release of these claims must all be treated as marital property.

Noncompete/Nonsolieitation Clauses

In addition to the release of employment-related claims, the employment-separation agreement also contains noncom-pete and nonsolicitation clauses. Thus, husband agreed that he would not provide services competitive with his employer for a period ending January 2, 2001. Further, husband agreed to keep secret all confidential information he had acquired during his employment and, for a period of two years from the date of the agreement, that he would not solicit other employees of his employer.

As discussed earlier, Minnesota cases have addressed the proper classification of noncompete agreements as between marital and nonmarital property. In Sweere, we determined that payments made pursuant to a noncompete agreement may be considered nonmarital only to the extent that they actually restrict future income or employment. Sweere, 534 N.W.2d at 300-01. There, we set forth several factors to consider in evaluating a noncompete agreement. Id. at 300. Those factors are also relevant to an attempt to allocate undesignated benefits from the employment-separation agreement to the noncompete clause. We said that the court should consider:

(1) the parties’ intent; (2) whether the parties’ tax treatment of the payment was in accordance with their stated intent; (3) whether the compensation paid for the covenant can be separated from the price paid for the goodwill; and (4) whether the non-competition agreement is economically real.

As to economic reality, we suggested further criteria:

[T]he court could consider whether [the spouse] represented a competitive threat to [the employer]; whether the agreement was the product of arms-length dealings; whether the agreement played a meaningful role in the negotiations; and whether the agreement was enforceable.

Id. While not all of these factors are applicable to the present case, the absence of specific evidence addressing any one of these factors resulted in husband’s failure to satisfy his burden of proof.

The district court found that the noncompete agreement did not meaningfully restrict husband’s future ability- to earn income because it was very limited in duration and husband found employment within eight months after his employment separation. In addition, there is no evidence to support a finding that husband’s noncompete agreement was economically real. The district court did not abuse its discretion in refusing to allocate some portion of the proceeds of the employment-separation agreement to the noncompete agreement.

Similarly, there was no evidence that the nonsolicitation clause truly limited husband’s right to seek future employment. While husband argues that it disqualified him from one potential line of work, as a headhunter for an employment firm, there is no evidence of the likelihood of husband obtaining such employment, nor of the impact of the non-solicitation clause on husband seeking such employment. Absent this testimony, the district court did not abuse its discretion in refusing to allocate some portion of the proceeds of the employment-separation agreement to the nonsolicitation clause.

Ill

Husband argues that the district court failed to take judicial notice of the tax code and failed to make adjustment for the tax consequences of both the employment separation benefits and his retirement assets. Generally, it is within the district court’s discretion to consider the tax consequences of a distribution. O’Brien v. O’Brien, 343 N.W.2d 850, 854 (Minn.1984). But the district court should not consider tax consequences of its property division when to do so would force it to speculate. Miller v. Miller, 352 N.W.2d 738, 744 (Minn.1984).

Employment-Separation Benefits

Husband argues that the district court failed to make any adjustment for the tax consequences of his employment-separation benefits when distributing a portion of them to wife. However, a close reading of the district court’s dissolution judgment shows that it distributed to wife only her share of the after-tax cash proceeds of the agreement.

This was accomplished by awarding wife portions of husband’s Bank of America account, to which he had deposited settlement payments that were already net of taxes. The court found that husband put approximately $640,000 from the settlement into his Bank of America account. Of this amount, $521,630 represented the net after-tax portion of a lump sum payment made to husband. The district court awarded wife, from that account, the sum of $57,550, (representing one-half of the payments husband received under the agreement for the. 1999 long-term incentives, the redemption of stock, and husband’s unused time-off-with-pay balance). From the balance that remained, the district court allowed husband to withdraw his living expenses and child support and spousal maintenance payments for six months. The court then granted wife one-half of the final balance, estimated to be about $220,000. This is about $40,000 less than one-half of the original after-tax amount of $521,630. This method reflected appropriate consideration of the tax consequences of the employment-separation agreement and was not an abuse of discretion.

Retirement Assets

In husband’s motion to amend, he only made two brief references to tax liability. He argued that certain retirement benefits were nonmarital property but that if the district court would not exclude them, he wanted the court “in the alternative,” to reduce their value “by the income tax liability” attributable to them or incurred as a result of them. Husband presented no further analysis or evidence to the district court. Husband did not provide any legal authority for this argument.

We initially note that an issue first raised in a post-trial motion is not raised in a timely fashion. See, e.g., Antonson v. Ekvall, 289 Minn. 536, 186 N.W.2d 187, 189 (1971) (stating claim made “too late” when made for the first time in a motion for a new trial); Allen v. Central Motors, 204 Minn. 295, 299, 283 N.W. 490, 492 (1939) (stating issue raised “too late” when first raised in motion for amended findings). Moreover, husband argues on appeal that Maurer v. Maurer, 623 N.W.2d 604 (Minn.2001) requires the district court to consider the issue of tax liability on his pension interests. But Maurer simply affirmed that the district court had discretion to consider tax consequences in the appropriate case, and confirmed the general rule that the district court should not consider tax consequences when to do so would be speculative. Id. at 607-08.

Because, on this record, it would have been speculative for the district court to address the future tax consequences that might occur with respect to husband’s retirement assets, the district court did not abuse its discretion by not addressing this issue.

IV

Husband argues that the district court erred by not dividing certain stock accounts in kind. In his motion before the district court, husband included draft language for the judgment, but provided no evidence or legal authority to show why such a division would be appropriate. Likewise, husband has not provided any authority to this court and it is not obvious that the district court prejudicially erred in its treatment of the accounts. Accordingly, husband has waived his argument on this issue and we do not address it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (stating that appellate courts generally will not consider matters not argued to and considered by the district court); State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn.App.1997) (stating that assignment of error based on “mere assertion” and not supported by argument or authority is waived “unless prejudicial error is obvious on mere inspection”).

V

Husband argues that the district court erred by not amending a conclusion of law concerning his maintenance obligation after it amended a factual finding on his living expenses. Husband did not make this argument to the district court. Further, he provides no authority to this court to support his argument. Accordingly, husband has waived his argument on this issue and we do not address it. See Thiele, 425 N.W.2d at 582; Modern Recycling, 558 N.W.2d at 772.

DECISION

The district court did not abuse its discretion by setting September 25, 2000, as the valuation date. The district court properly included the employment-separation benefits in the marital estate, because husband did not meet his burden of proving what part of them was nonmarital property. The district court properly considered the tax consequences of the employment-separation agreement and properly declined to speculate about the potential tax consequences of husband’s retirement assets. Husband waived his arguments that the district court erred by its distribution of the investment accounts and by not modifying his maintenance obligation.

Affirmed.

      . In an unpublished decision, we have held that it is appropriate to use the trial date as the valuation date, so long as the district court makes findings supporting its decision. Skoglund v. Skoglund, No. C0-91-561, 1991 WL 191655, at *1-2 (Minn.App. Oct.1, 1991) (affirming the use of the trial date as the valuation date where district court made specific finding that such a date was the most equitable valuation date and the selection of such a date was reasonable and supported by the evidence); but see Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn.App.1993) (holding that unpublished opinions are, "[a]t best,” of persuasive value).

        . There are two unpublished decisions involving employment settlements, but they do not develop a generally applicable approach. In Carr v. Carr, No. C0-91-2312, 1992 WL 72034 (Minn.App. April 14, 1992), review denied (Minn. June 1, 1992), husband did not disclose to the dissolution court that he had terminated his employment and received severance pay equal to about half the marital estate. We affirmed the district court’s decision to reopen the decree and to amend the property division to award wife half of the severance pay. We rejected husband's argument that his severance pay should be treated as income, not marital property, by a mechanistic interpretation of the statutory definition of "income” as requiring "periodic payment,” whereas the severance was paid in a lump sum. Id. at *2. In Sommers v. Sommers, No. C7-97-98, 1997 WL 328035 (Minn.App. June 17, 1997), review denied (Minn. August 21, 1997), husband received $550,000 of severance pay and $80,000 for a non-compete agreement when his employment was terminated during the marriage. No challenge was made to the district court's treatment of the severance pay as a marital asset, and thus we did not address the issue. Our review of the noncompete payment, however, reflected the analytical approach, concluding that a noncompete payment could be nonmarital if it was “a method for limiting future employment and income.” Id. at *2.


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge.

license: Public Domain

text:
    William Carl NOLTE, Respondent, v. Linda Anne MEHRENS, Appellant.
    No. C5-02-164.
    Court of Appeals of Minnesota.
    July 30, 2002.

      John R. Hill, Larkin, Hoffman, Daly & Lindgren Ltd., Bloomington, MN, for respondent.
    Lisa M. Elliott, Elliott Law Offices, P.A., Edina, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge, G. BARRY ANDERSON, Judge, and HANSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

This ease arises from the district court’s use of the Hortis/Valento formula to set the parties’ child support obligations. In doing so, the district court found that the parties had stipulated to joint legal custody and that respondent-mother had “primary physical custody,” but did not indicate whether mother had sole physical custody or whether the parties shared joint physical custody. The district court also failed to address which party was responsible for the child’s uninsured medical expenses and denied the request of appellant-father to appoint a parenting time expeditor. Because an award of physical custody under Minnesota Statutes chapter 518 must affirmatively identify whether the custody award is joint physical custody or sole physical custody to one parent, we remand for the district court to identify the nature of the physical-custody award of the parties’ child. On remand, the district court shall also address the parties’ responsibilities for the child’s uninsured medical expenses. We affirm the district court’s denial of father’s motion to appoint a parenting time expeditor.

FACTS

Linda Anne Mehrens is the mother of a child born in 1997. In 1999, William Carl Nolte, the child’s father, filed a paternity action; he was later adjudicated the child’s father. The parties subsequently stipulated (1) that mother would have “primary physical custody”; (2) that the parties would share joint legal custody; and (3) to their respective net incomes. After an evidentiary hearing, the parties submitted proposed findings, addressing several topics, including child support and uninsured medical expenses.

In June 2001, a referee issued a recommended order that (1) set a parenting time schedule; (2) set the parties’ child support obligations using the Hortis/Valento formula; and (3) addressed childcare costs. The district court adopted the referee’s recommended order.

Mother challenged the district court’s order, moving for amended findings or a new trial. In November 2001, the referee issued a second order that, among other things, denied mother’s request to address uninsured medical expenses. The district court also adopted this order. Neither party sought district court review of either of the referee’s orders. Mother directly appealed from the orders, and father filed a notice of review.

ISSUES

I. Did the district court abuse its discretion when it applied the Hortis/Valento formula to compute the parties’ child support obligations?
II. Did the district court err when it failed to address uninsured medical expenses in its order and denied mother’s motion to amend the order to include a provision addressing the uninsured medical expenses?
III. Did the district court abuse its discretion when it denied father’s motion to appoint a parenting time expeditor?

ANALYSIS

I.

Before the district court, mother challenged the court’s finding that she has custody of the parties’ son 60 percent of the time. Before this court, mother argues the district court should not have used the Hortis/Valento formula to set the parties’ child support obligations because (1) mother has sole physical custody of the child; (2) when one parent has sole physical custody of a child, use of the Hortis/Va-lento formula to set support is a deviation from the child support guidelines of Minn. Stat. § 518.551, subd. 5 (2000), which are rebuttably presumed to be applicable; (3) the district court did not make any of the statutorily required findings to deviate from the guidelines; and (4) the failure to make findings allowing deviation renders father’s non-guideline support obligation defective. See Schlichting v. Paulus, 632 N.W.2d 790, 792-93 (Minn.App.2001) (addressing application of Hortis/Valento formula).

Although mother’s arguments before this court and the district court address the child support obligations of the parties, the arguments before each court are based on different legal theories. Generally, a party waives an argument if the party does not raise that argument in the district court. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (stating that reviewing court generally considers only those issues presented to and considered by district court). But mother did challenge aspects of the June 2001 order relating to father’s support obligation, including the findings regarding the amount of time the parties spend with their child. We conclude on this record that the issue was adequately presented to and considered by the district court.

A district court has broad discretion to provide for the support of the parties’ children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984). The district court abuses its discretion when it sets child support in a manner that is contrary to logic and the facts in the record. Id.

Use of the Hortis/Valento formula where one parent has sole physical custody is a deviation from the child support guidelines, and must be supported by findings on the statutory factors enumerated in Minn.Stat. § 518.551, subds. 5(c), 5(i) (2000). Rogers v. Rogers, 622 N.W.2d 813, 821 (Minn.2001). Where parents have joint physical custody, however, the Hor-tis/Valento formula is the appropriate method for setting support. Schlichting, 632 N.W.2d at 792-93. Therefore, identifying whether the parties have joint physical custody or whether one party has sole physical custody is critical to setting the parties’ support obligations.

Here, the parties stipulated to “primary physical custody” by mother. The supreme court has indicated that when a district court adopts the stipulation of parents regarding physical custody, the label the parties place on their stipulated custodial arrangement is binding:

Where * * * the parties have agreed, by stipulated decree, to joint legal custody and joint physical custody * * * and the court has accepted that denomination, the parties will be bound by it.

Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn.1993). Recently, the supreme court reaffirmed Ayers stating:

We have held that when parties have agreed to a specific denomination of physical and legal custody and that denomination has been accepted by the district court, the parties will be bound by it. See Ayers, 508 N.W.2d at 520. Such denominations, we have said, “will require careful drafting by the parties in the first instance [and] will provide more certainty in resolving future disputes.” Id.

Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn.1999). Even more recently, this court noted the primacy of a district court’s characterization of a stipulated physical-custody arrangement. Blonigen v. Blonigen, 621 N.W.2d 276, 281 (Minn.App.2001) (applying Ayers), review denied (Minn. Mar. 13, 2001). Thus, when parents stipulate to a physical-custody arrangement and the district court adopts that arrangement, the dispositive factor in determining whether the arrangement establishes sole physical custody for one parent or joint physical custody for both parents, and therefore whether it is presumptively appropriate to apply the Hor-tis/Valento child support formula, is the district court’s description of the physical-custody arrangement.

That parties are bound by the agreed-on physical-custody arrangement adopted by the district court does not resolve the question whether a physical-custody arrangement is sole or joint when the custody characterization is described by other terms. And here, not only did the district court fad to explicitly characterize the parties’ physical-custody arrangement as sole or joint, but the parties also continued to disagree on that point as recently as during oral arguments before this court.

There is no clear statutory requirement that a district court’s determination of physical custody specify whether the award is sole or joint. Compare Minn. Stat. § 518.17, subd. 3(a)(1) (2000) (noting awards of legal custody “shall be sole or joint”), with § 518.17, subd. 3(a)(2) (lacking such a requirement for physical-custody awards). It is without doubt, however, that proper identification of the physical-custody arrangement is a matter of concern for the legislature. See Minn.Stat. § 518.1705, subd. 4 (2000) (addressing parenting plans and stating, “the parents must designate whether the parents have joint legal custody or joint physical custody or which parent has sole legal custody or sole physical custody, or both” (emphasis added)); § 256F.14, subd. 1(b) (Supp. 2001) (defining “relative care” for purposes of Minnesota Family Preservation Act in the terms of “joint or sole * * * physical custody of a child” (emphasis added)); § 518.18(f) (Supp.2001) (discussing modification of a custody order and recognizing that a parent may be granted “sole physical custody” and stating that “[i]f a parent has been granted sole physical custody of a minor and the child subsequently lives with the other parent, and temporary sole physical custody has been approved by the court or by a court-appointed referee, the court may suspend the obligor’s child support obligation pending the final custody determination” (emphases added)).

Therefore, when a district court awards physical custody, whether based on a stipulation of the parties or not, it must also identify whether the physical-custody award is for sole or joint physical custody. Because the district court did not state which type of physical custody was awarded here, we remand so that it may do so. We note, however, that joint physical custody is not preferred. See Wopata v. Wopata, 498 N.W.2d 478, 482-83 (Minn.App.1993); Peterson v. Peterson, 393 N.W.2d 503, 506 (Minn.App.1986). We leave to the discretion of the district court whether a hearing and additional evidence are necessary to resolve this issue. Because we remand for a physical-custody determination, we decline to address mother’s argument that the district court erred by applying the Hortis/Valento formula. '

II.

Mother contends that the district court erred when it failed to address the child’s uninsured medical expenses, despite both parties’ requests for the district court to do so. It is clear from the record that the district court’s order fell within the definition of a “support order,” as that term is defined for child support purposes. See Minn.Stat. § 518.54, subd. 4a (2000) (stating that the definition of “child support order” in chapter 518 applies to orders issued in paternity proceedings under chapter 257).

In its November 2001 order, the district court found that uninsured medical expenses were not addressed during the evidentiary hearing and that mother would have to bring a separate motion to raise this issue. But Minn.Stat. § 518.171, subd. 1(a) (2000), states that every support order “must * * * expressly assign or reserve” uninsured medical costs. (Emphasis added.) Therefore, we also remand this issue to allow the district court to assign or reserve the child’s uninsured medical expenses.

III.

Father contends that the district court abused its discretion by denying his motion to appoint a parenting time expeditor. The district court has broad discretion in deciding visitation questions and will not be reversed absent a demonstrated abuse of that discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn.1995). On the request of either party, a court “may appoint a parenting time expeditor.” Minn.Stat. § 518.1751, subd. 1 (2000). The term “may” is permissive. Minn.Stat. § 645.44, subd. 15 (2000). Although father requested the appointment, on this record, father has not shown that the district court abused its discretion by denying his request.

DECISION

Because a district court, in awarding physical custody, must identify whether physical custody is sole or joint, and because the district court did not do so here, we remand for the district court to make that determination. On remand, the district court shall also address the issue of the child’s uninsured medical expenses as required by Minn.Stat. § 518.171, subd. 1(a). Finally, we affirm the denial of father’s request for a parenting time expeditor because we find no abuse of discretion by the district court.

Affirmed in part and remanded.

      . Even though father’s paternity action was brought under chapter 257 of Minnesota statutes, that chapter requires the use of chapter 518 to address, inter alia, child support determination. Minn.Stat. § 257.66, subd. 3 (2000). Therefore, the district court correctly used chapter 518 in resolving this dispute.

      . Mother attempted to challenge the district court's original order through her motion for amended findings or new trial. Normally, where there is no request for “rule 53 review” of a referee’s ruling, we apply a narrow scope of review, focusing on whether there is support in the record for the referee's findings of fact and whether the findings support the conclusions of law and the judgment. Kahn v. Tronnier, 547 N.W.2d 425, 428 (Minn.App.1996), review denied (Minn. July 10, 1996). We conclude that Kahn's narrow scope of review is inappropriate here because mother effectively gave the district court an opportunity to review its original order, and the district court issued an order that addressed mother's motion. We limit our conclusion, however, to the facts of this case.

      . Although it could be argued that some earlier caselaw indicates that discerning whether a physical-custody award is sole or joint requires an examination of the amount of time the parties spend with their child, Ayers and its progeny have superseded such cases.

      . We note that this case does not involve a parenting plan under Minn.Stat. § 518.1705.


author: R.A. RANDALL, Judge.

text:
    Mary Ann FINNE, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C6-01-2110.
    Court of Appeals of Minnesota.
    Aug. 6, 2002.

      Bradford Colbert, Assistant State Public Defender, St. Paul, MN, for appellant.
    Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Raymond F. Schmitz, Olmsted County Attorney, Rochester, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge, STONEBURNER, Judge, and FOLEY, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art VI, § 10.

   OPINION

R.A. RANDALL, Judge.

Appellant challenges the postconviction court’s refusal to grant a new trial based on lack of counsel at trial and the trial court’s refusal to suppress statements made in an interrogation following the appointment of a public defender. We find that appellant effectively waived trial counsel. However, the agents’ continued interrogation of appellant when they knew she was represented by counsel is not consistent with appellant’s constitutional right to fair representation of counsel. We affirm in part, reverse in part, and remand.

FACTS

In early 1999, following a series of controlled buys, appellant was arrested and charged with conspiracy to commit a first-degree controlled-substance crime and aiding the commission of a first-degree controlled-substance crime

Following her arrest, appellant was transported from the Dakota County Jail to the Olmsted County Jail. During this trip, BCA agent Susan Linkenmeyer questioned appellant regarding her involvement in the Olmsted County drug case. While being questioned, appellant requested an attorney and Linkenmeyer immediately ceased questioning.

Appellant appeared in court and a public defender was appointed to represent her. Approximately six days later, appellant, without contacting her court-appointed attorney, contacted agent Linkenmeyer for the purpose of setting up a conversation. Appellant wanted to do some informal plea bargaining on her own. On January 19, 1999, appellant was read her rights and was interviewed by Linkenmeyer and agent Jeffrey Hansen where she gave numerous statements later used at trial. Some of appellant’s statements were offered to the two agents to trade information for leniency.

The matter was originally scheduled for trial on August 23, 1999. Before the proceedings began, appellant asked to dismiss her public defender and obtain private counsel. The district court allowed appellant to dismiss counsel with the instruction that she could not again obtain a public defender if she failed to acquire private counsel. Appellant was also instructed to notify the district court by August 26, 1999, as to the identity of her attorney. Appellant did nothing on August 26. The matter was then continued to a September 21,1999, trial date.

On September 17, 1999, the trial court convened a pretrial hearing. At this hearing appellant represented that she had obtained private counsel. Appellant stated that her private counsel was not ready for trial on September 21, 1999, and that she did not know when he would be available. That same day the trial court contacted appellants’ claimed private counsel. He stated he had never heard of appellant.

On September 21, 1999, the second trial date, appellant again appeared without counsel and repeated to the trial court that she had hired private counsel. The trial court had earlier that day spoken to appellant’s “private counsel.” That attorney told the trial court that, yes, he had now been contacted, but he had earlier requested a retainer from appellant, and despite appellant’s statements that “her relatives had money,” no one had actually come into his office on appellant’s behalf and negotiated an up-front retainer. Thus, the attorney took the position that he still had not been retained as appellant’s private counsel.

The trial court again continued the trial, now to the week of October 11, 1999, to enable appellant to continue to attempt to hire private counsel and to allow that counsel adequate time to prepare for trial. Simultaneously, the trial court appointed appellant’s original public defender to serve as standby counsel. A representative from the public defender’s office, who was present at the pretrial hearing, conveyed to the court that the public defender’s office was willing to take over full representation if appellant so desired. Appellant made no statements that she so desired.

On October 18, 1999, the trial court convened a pretrial hearing. At that hearing the trial court informed appellant that the court intended to proceed with trial on October 19, 1999. The trial court again informed appellant that it had had numerous contacts with appellant’s claimed private counsel. Private counsel had at that time conveyed to the court that as he had not been retained, he did not represent appellant. Appellant, responding to questions from the county attorney, indicated that she had not hired private counsel and still had not made a formal request for a public defender. When asked if that was her decision, appellant stated, “[n]o it’s not my decision. The situation I’m in.” The trial court ordered appellant to proceed pro se.

Between October 19 and October 27, 1999, appellant represented herself at trial. Following the trial, appellant was found guilty of both charges. Appellant subsequently petitioned for postconviction relief. The postconviction court vacated appellant’s conviction of aiding the commission of a controlled-substance crime in the first degree, but denied relief on all other claims. This appeal followed.

ISSUES

1. Did the postconviction court err in finding that appellant validly waived her right to trial counsel?

2. Did the postconviction court err in denying appellant’s motion for postconviction relief based upon the trial court’s refusal to suppress appellant’s statements to law enforcement after appellant had been given a court-appointed attorney?

ANALYSIS

An appellate court’s review of a postconviction proceeding is limited to ascertaining whether there is sufficient evidence to sustain the court’s findings. Hale v. State, 566 N.W.2d 923, 926 (Minn.1997). An appellate court affords “great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.” Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001) (citation omitted).

I. Waiver of counsel

The Sixth and Fourteenth Amendments to the United States Constitution guarantee criminal defendants the right to an attorney. Gideon v. Wainwright, 372 U.S. 335, 343-45, 83 S.Ct. 792, 795-97, 9 L.Ed.2d 799 (1963). The U.S. Supreme Court has stated: Faretta v. California, 422 U.S. 806, 819-820, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975). This right to an attorney, however, may be waived if the waiver is competent and intelligent. Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Whether a waiver of a constitutional right is valid depends “upon the particular facts and circumstances surrounding that case, including the background experience, and conduct of the accused.” Id. at 464, 58 S.Ct. at 1023. “It is the duty of the trial court to ensure a knowing and intelligent waiver of the right to counsel.” State v. Krejci, 458 N.W.2d 407, 412 (Minn.1990). “A defendant’s refusal, without good cause, to allow appointed counsel to continue representation may by itself be sufficient to find a valid waiver.” State v. Worthy, 583 N.W.2d 270, 277 (Minn.1998) (citations omitted).

The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. * * * The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.

Appellant argues that the postcon-viction court erred when it found that appellant waived her right to counsel after appellant dismissed her public defender and failed to hire a private attorney. We disagree. Appellant, throughout the history of this case, had numerous chances to avail herself of representation, court appointed or private. Appellant was given at least two continuances to obtain private counsel. Despite these continuances, and appellant’s assurances to the court that a privately retained attorney was ready, willing, and able to represent her, one never was. Respondent claims that appellant’s refusal to accept a public defender, and her continued insistence to the district court that she was getting private counsel, was simply a ploy to stall her trial date. Their reasoning is that appellant knew as long as she had not been tried or had not pleaded guilty, she could not be called to testify at the trial of any alleged co-conspirator. Given appellant’s sophistication and general knowledge of the legal system, we do not discount respondent’s argument on this issue. The record is clear that appellant was given numerous opportunities to avail herself of representation by a public defender. Beginning with the January 12, 1999, appointment of a public defender, through the September 21, 1999, appointment of standby counsel, and continuing to the eve of trial, public defense counsel indicated a willingness to represent appellant. The facts in this case mirror the situation in State v. Brodie, where the supreme court stated:

This is not a case in which the record is silent on whether defendant knowingly and voluntarily waived his right to counsel. Defendant was in fact given counsel and he then “fired” counsel. The record is clear that defendant knew that he did not have a right to a different public defender but would have to represent himself if he did not accept the services of the public defender.

State v. Brodie, 532 N.W.2d 557, 557 (Minn.1995). Here, as in Brodie, appellant was given a public defender and then released that public defender, knowing full well that she would be expected to represent herself should she fail to hire private counsel. We conclude the postconviction court did not err in its finding of a valid waiver of trial counsel by appellant.

II. Suppression

Appellant argues that the postconviction court erred in refusing to grant a new trial based upon the trial court’s refusal to suppress statements taken during the custodial interrogation of January 19, 1999, which took place after a public defender had been appointed. We agree.

Both the United States and Minnesota constitutions guarantee that persons charged with a criminal offense shall have the right to assistance of counsel in their defense. U.S. Const, amend. VI; Minn. Const, art. I, § 6. It is settled that Minnesota strongly disapproves of in-custody interrogations if the defendant is represented by counsel and counsel has not had the opportunity to be present at questioning. State v. Renfrew, 280 Minn. 276, 280, 159 N.W.2d 111, 113 (1968); State v. Fossen, 312 Minn. 414, 423, 255 N.W.2d 357, 362 (1977); Giddings v. State, 290 N.W.2d 595, 597 n. 3 (Minn.1980). The Minnesota Supreme Court in State v. Lefthand succinctly stated this disapproval:

Of grave concern to us here is what we can only perceive as an emerging pattern of conduct, calculated to subvert the intent of our criminal rules which is to “provide for the just, speedy determination of criminal proceedings.” * * * Justice is a process, not simply a result. Where the prosecution persists in skirting our rules and disregarding our admonitions, we are left with no option but to reverse.

State v. Lefthand, 488 N.W.2d 799, 802 (Minn.1992) (quotation omitted).

To be suppressed, this court must examine the “egregiousness of the government’s action in total.” State v. Ford, 539 N.W.2d 214, 225 (Minn.1995). Here, we find the Ford decision and State v. Miller, 600 N.W.2d 457 (Minn.1999) instructive.

In Ford, a defendant, following the appointment of counsel, initiated contact with the police, waived his rights, and made numerous incriminating statement to officers. Ford, 539 N.W.2d at 223. While the defendant had been appointed counsel earner that day, defense counsel was not notified of the interrogation. Id. The court, applying the Lefthand standard, concluded that because the prosecutors were not aware of the interrogation, and the defendant waived his rights, the government action did not consist of sufficiently egregious conduct to warrant a new trial. Id. at 223-24.

In Miller, a defendant who had not formally been charged with a crime, was questioned without counsel present. Miller, 600 N.W.2d at 461. This police interrogation was authorized by the prosecutor who, while the interview was taking place, spoke to defense counsel and instructed an officer to refuse to cease the interview and refuse to allow counsel to speak with his client. Id. at 461. The court concluded that the government’s conduct, taken in the totality of the circumstances, and specifically the ethical violation of the prosecutor, was sufficiently egregious to implicate concerns about the fair administration of justice and to warrant suppression of the defendant’s statements. Id. at 468.

Appellant argues that governmental action in this instance was sufficiently egregious to warrant suppression, arguing that the officers, unlike in Ford and Left-hand, knew that appellant was represented by an attorney. The postconviction court relied heavily on the trial court’s findings at the pretrial omnibus hearing, which stated, “[i]t is not clear from the record that either BCA agent involved in questioning Defendant knew that she was represented by an attorney.” The post-conviction court found that appellant had not proven by a fair preponderance of the evidence that the trial court was in error. We disagree.

Appellant’s testimony at the omnibus hearing indicated it was common knowledge that the BCA agents knew she was represented by counsel. Her testimony is supported by statements made in both the transcript of the interrogation and in testimony at the omnibus hearing. In the transcript of the interrogation appellant mentions her lawyer at least twice during the conversation:

Appellant: She knows that I’ve come up to talk to somebody, cuz you know I told her that my lawyer was supposed to be comin in (inaudible) tonight after I talked to you (inaudible).
Agent Hansen: Oh, your lawyer?
Appellant: I-I first of all wanted to know, um (inaudible) and all of us (inaudible) you guys downtown (inaudible) anything. And uh (inaudible) I probably, honestly, I’m gonna talk to my lawyer.
Agent Linkenmeyer: (Inaudible)
Appellant: If I’m — if I’m — well if I’m looking at, um, getting — if I’m looking at-at facing something that I’m gonna be convicted of, I’m gonna be in violation of my probation, and I’m gonna do some time.

Agent Hansen corroborates the transcript testifying during the omnibus hearing that he and Agent Linkenmeyer had discussed who appellant’s probation officer and her public defender were. At the omnibus hearing, Agent Hansen testified:

Q: Your report also goes on to state that there was a discussion between you and your colleague Agent Linkenmeyer about who my client’s probation officer was and who her public defender was.
A: We asked Mary Finne that during the interview, yes.
Q: I’m sorry?
A: We asked Mary Finne those questions during the interview.
Q: And is your recollection same as mine? I don’t see that in the transcript or didn’t hear it in the tape.
A: That’s correct.
Q: So that was done again at what time?
A: I believe that was done right away in the beginning of the interview and for some reason that tape may have not been recording at that time. As you can tell through the transcript, it started and stopped numerous times.

The state argues that because these statements were made within the “general topic” of a potential probation violation on another Olmsted County case, the agents believed the lawyer mentioned was involved in the previous case. We cannot conclude that the agent’s inquiry into the status of appellant’s probation on another matter and appellant’s statements regarding “her attorney” have to be the same issue. We agree with the state’s position that her references to “probation” most likely included her previous unrelated matter because, by definition, she was not on probation for this drug case at issue, as it had not even gone to trial yet. But that same deference to the state’s argument cannot be given to appellant’s statements to Linkenmeyer and Hansen regarding her attorney. At the time of this interrogation, appellant had had a court-appointed attorney on this case for a week. The agents knew she had been to court for at least an initial appearance on this case. During the January 19, 1999, interrogation of appellant, where she mentioned her attorney at least twice, on no occasion did either of the two agents try to clarify appellant’s statements as to whether she was talking about her attorney from this case or some attorney on some other case. Further, the record is clear that one of the agents involved in the questioning of appellant, agent Linkenmeyer, was responsible for transporting appellant from the original apprehension site, Dakota County, to the Olmsted County Jail. During that transportation, agent Linkenmeyer immediately and properly ceased questioning appellant when appellant requested to speak to an attorney. We find it hard to believe that this same agent, speaking to appellant eleven days later, would believe that when appellant referenced her attorney she was speaking about some other totally unrelated matter, without at least clarifying the issue of “what attorney on what case.”

DECISION

1. The district court reached the proper conclusion that appellant had made a valid waiver of her right to an attorney. On that issue, the district court is affirmed.

2.Taking the record as a whole, and recognizing the strong emphasis Minnesota puts on representation by an attorney, we conclude this issue is controlled by the sum of Lefthand, Ford, and Miller. Thus, the postconviction court erred when it held that appellant had not met her burden to show that the trial court should have excluded the January 19, 1999, statements from trial. We reverse on this issue, and remand for a new trial.

Affirmed in part, reversed in part, and remanded.

      . Appellant was originally apprehended in Dakota County on the Olmsted County charges at issue.

      . The district court informed appellant:
      And I did indeed check with Mr. Kurzman, who did indicate that yesterday, so far as I could tell, for the first time he had actually spoken with you, Ms. Finne, and there had been a discussion about you hiring him, and that hasn’t actually been accomplished yet with no money having changed hands. But it's possible I suppose that you could hire him.


author: GORDON W. SHUMAKER, Judge.

text:
    In the Matter of the WELFARE OF J.J.R.
    No. C7-01-1998.
    Court of Appeals of Minnesota.
    Aug. 6, 2002.

      John M. Stuart, State Public Defender, Charlann E. Winking, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Lamar Piper, Watonwan County Attorney, Todd L. Kosovich, Assistant Wa-tonwan County Attorney, Saint James, MN, for respondent.
    Considered and decided by HARTEN, Presiding Judge, SHUMAKER, Judge, and PARKER, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. IV, § 10.

   OPINION

GORDON W. SHUMAKER, Judge.

Appellant J.J.R. appeals from the district court’s denial of his motion to withdraw his plea of guilty, arguing that his motion was timely and that there was no factual basis for the plea. Because the motion was proper and because there was an insufficient factual basis for the plea, we reverse and remand.

FACTS

The state filed a delinquency petition against 14 year old appellant J.J.R., charging him with second-degree criminal sexual conduct for having sexual contact with a minor female and with third-degree criminal sexual conduct for engaging in oral sexual penetration with a minor male.

Under a plea agreement, J.J.R. admitted to one amended charge of fifth-degree criminal sexual conduct. The district court received JJ.R.’s counseled “PETITION TO ENTER AN ADMISSION PURSUANT TO JUVENILE RULE OF PROCEDURE 8.04.”

In his petition, J.J.R. acknowledged that he received, read, and understood the delinquency petition and knew specifically what offenses he was charged with. His admission in the plea petition was as follows:

I am admitting that I committed the following offenses based on the following factual basis: Did on or about July 12, 1999, in the City of St. James, County of Watonwan, State of Minnesota, have nonconsensual contact with R.J.B. and L.L.C.

The oral record of the plea hearing reveals a brief colloquy:

[DEFENSE ATTORNEY]: [H]ave we discussed this plea agreement?
[J.J.R.]: Uh-huh.
[DEFENSE ATTORNEY]: Have we gone over the petition?
[J.J.R.]: Yes.
[DEFENSE ATTORNEY]: Have we discussed it with your mother?
[J.J.R.]: Yes.
[DEFENSE ATTORNEY]: Are you in agreement with it and is that your signature on it?
[J.J.R.]: Uh-huh, yes.
[DEFENSE ATTORNEY]: What else do we require, your Honor?
THE COURT: Nothing further. I’m going to defer to [the prosecutor].
[PROSECUTOR]: The State is satisfied, your Honor.

The predisposition report prepared after J.J.R. pleaded guilty quotes J.J.R. asserting his innocence:

Not guilty only accepted pled [sic] bargain on advice of attorney as he didn’t feel he could win this type of case. He (Rolando Campos) believes me! Took the lesser of 2 evils. To [sic] scared to trust a none [sic] caring system. Lots of people in prison and jails who are innocent and not freed till years later. Only those with money win. Public defenders don’t get money to investigate and really defend the poor people. Committed no offense. Blackstad’s and Con’s real offenders and system fails me. Who is going to right the wrong done to me!

After a disposition hearing on January 25, 2000, the district court adjudged J.J.R. delinquent and placed him on probation, subject to various conditions.

On July 25, 2001, J.J.R. moved to withdraw his admission on the grounds that there was no factual basis for it and that the statement of J.J.R.’s rights was inadequate.

The court denied the motion, finding that J.J.R., his attorney, and JJ.R.’s mother “engaged in detailed discussions” about the charges and that J.J.R. admitted the charge of fifth-degree criminal sexual conduct. The court ruled that the motion was untimely and the state would be prejudiced if J.J.R. were permitted to withdraw his plea because:

[t]his crime and the evidence are now two years old. The victims would now be forced to relive the abuse that occurred by testifying at trial after they were spared this trauma by plea agreement.

J.J.R. appeals from the district court’s denial of his motion for leave to withdraw his plea.

ISSUES

1. Did the district court err by ruling that appellant’s motion to withdraw his plea of guilty was untimely when the applicable rule allows such a motion at any time?

2.Was appellant’s plea lacking in factual basis when the record fails to show appellant’s admission of facts that would support the establishment of each essential element of the crime that he admitted?

ANALYSIS

Timeliness

A motion to withdraw a plea of guilty must be timely under the rules of criminal procedure. Minn. R.Crim. P. 15.05, subd. 1. But in a juvenile proceeding,

[t]he court may allow the child to withdraw a guilty plea * * * at any time, upon showing that withdrawal is necessary to correct a manifest injustice.

Minn. R. Juv. P. 8.04, subd. 2(B) (emphasis added).

Because the plain language of the controlling rule places no restrictions on the timing of a motion to withdraw a plea of guilty, the district court erred in denying the motion as being untimely. See Smigla v. Schnell, 547 N.W.2d 102, 104 (Minn.App.1996) (when words of a rule are clear and unambiguous, we must give effect to their plain meaning).

Factual Basis for Plea

When a juvenile offers to admit a crime, the district court “shall not accept” the plea unless “there is a factual basis for the guilty plea.” Minn. R. Juv. P. 8.04, subd. 1(A). To be valid, the plea must have been entered intelligently, voluntarily, and accurately. State v. Ecker, 524 N.W.2d 712, 716 (Minn.1994). To be accurate, the plea must be supported by a proper factual basis. Id. Although the district court need not personally conduct an interrogation to establish a factual basis for a plea, it is the court’s responsibility to ensure that an adequate factual basis is shown in the record. Id.

J.J.R. admitted criminal sexual conduct in the fifth degree. That crime is committed if a “person engages in noncon-sensual sexual contact.” Minn.Stat. § 609.3451, subd. 1(1) (1998). For purposes of this crime, “sexual contact” involves various types of intimate touching when done with sexual or aggressive intent. MinmStat. § 609.341, subd. 11(a) (1998).

There are four essential elements of criminal sexual conduct in the fifth degree:

1. intentional touching of an intimate area (as specified by MinmStat. § 609.341, subd. 11(a));
2. lack of consent of the victim;
3. the touching was done with sexual or aggressive intent; and
4. date and place of the act.

10 Minnesota Practice, CRIMJIG 12.52 (1999).

The law requires that the person entering an admission verify sufficient facts on the record to support the conclusion that his conduct falls within the charge to which he is offering to plead guilty. State v. Vieburg, 404 N.W.2d 312, 314 (Minn.App.1987). See also State v. Vernlund, 589 N.W.2d 307, 310 (Minn.App.1999) (factual basis for plea must be disclosed on the record).

To be an accurate plea, that is, one supported by facts that demonstrate the existence of the essential elements of the crime, J.J.R. would have had to admit one or more types of touching that fit the definition of sexual contact. He admitted only “nonconsensual contact.” That admission does not fit any category of the requisite statutory definitions. He also would have to admit that the contact was to an intimate area and made with sexual or aggressive intent. He said nothing about the intention behind his contact, nor did he even admit that it was intentional.

There are various ways in which a juvenile might “admit” sufficient facts to support a legitimate plea. Among those ways would be a nonleading, question-and-answer interrogation about particular essential facts; the juvenile’s own narrative that includes essential facts; a reference to factual allegations in a charging document or in police reports or other records, coupled with the juvenile’s ■ express and specific acknowledgement of the truth and accuracy of facts constituting the essential elements of the crime; or a written delineation of essential facts that the juvenile acknowledges or adopts as being correct.

Here, particular facts are provided in the delinquency petition. But those are allegations. J.J.R. did not admit the facts alleged in the petition but rather he admitted only the inadequate conclusion of “non-consensual contact.”

The omission of a factual basis for a plea destroys the accuracy of the admission. Moreover, in this case, before the disposition, J.J.R. in effect retracted his admission and reasserted his innocence, alleging that he pleaded guilty only because his attorney said he could not win his case. We do not assume merit in this allegation, but a proper and specific factual basis disclosed on the record likely would have cured any doubt about the allegation.

The district court erred by denying J.J.R.’s motion to withdraw his plea. The admission was invalid because it was inaccurate, and the motion to withdraw was proper. J.J.R. is entitled to withdraw his plea and the state is entitled to reinstate the original delinquency petition.

Because of our holding, we need not address the remaining issues J.J.R. raised on appeal.

Reversed and remanded.

      . Minn. R. Juv. P. 8 uses the term "plea of guilty." Caselaw has sometimes referred to a plea of guilty as an "admission.” See, e.g., In re Welfare of C.D.N., 559 N.W.2d 431 (Minn.App.1997), review denied (Minn. May 20, 1997); In re Welfare of D.S.S., 506 N.W.2d 650 (Minn.App.1993). The terms are used interchangeably in this opinion.

      . Even if J.J.R. was attempting to enter an Alford plea, the basis for such a plea is lacking See State v. Goulette, 258 N.W.2d 758, 761 (Minn.1977) (holding that plea of guilty may be accepted, even if accused protests that he is innocent, if court concludes that the evidence would support a jury verdict of guilty and the plea is voluntarily, knowingly, and understandingly entered).


author: TOUSSAINT, Chief Judge.

text:
    Helmut J. ULLRICH, Petitioner, Respondent, v. NEWBURG TOWNSHIP BOARD, Appellant.
    No. C1-02-565.
    Court of Appeals of Minnesota.
    Aug. 6, 2002.

      David A. Joerg, Law Offices of David A. Joerg, Preston, MN, for respondent.
    Joseph L. Hammell, Rippe Hammell & Murphy, Caledonia, MN, for appellant.
    Considered at Special Term and decided by TOUSSAINT C.J., and KALITOWSKI and ANDERSON, JJ.
   SPECIAL TERM OPINION

TOUSSAINT, Chief Judge.

FACTS

Respondent Helmut J. Ullrich petitioned appellant Newburg Township Board for the establishment of a cartway under Minn.Stat. § 164.08 (2000). On December 1, 2001, appellant denied respondent’s petition to establish a cartway to his property. Respondent challenged the denial of the petition in a mandamus proceeding in district court. See Horton v. Township of Helen, 624 N.W.2d 591, 594 (Minn.App.2001) (holding that a petition for writ of mandamus is appropriate to appeal a township’s denial of a petition to establish a cartway pursuant to Minn.Stat. § 164.08), review denied (Minn. June 19, 2001).

By order on February 6, 2002, the trial court granted respondent’s petition for a writ of mandamus and directed appellant to establish a cartway. This appeal is taken from the February 6 order. This court questioned whether judgment should be entered on an order that grants a petition for a writ of mandamus and, if so, whether the proper appeal is from the judgment. The parties and the trial court administrator submitted memoranda.

DECISION

A mandamus action is a “special proceeding.” Moritz v. Town of Burns, 292 Minn. 165, 166 n. 1, 193 N.W.2d 620, 621 n. 1 (1972). Except as otherwise provided by statute, an appeal may be taken from a final order, decision, or judgment affecting a substantial right made in an administrative or other special proceeding. Minn. R. Civ.App. P. 103.03(g). In Moritz, the supreme court noted that an order dismissing a mandamus action is appeal-able as a final order affecting a substantial right made in a special proceeding. Mor itz, 292 Minn. at 166 n. 1, 193 N.W.2d at 621 n. 1.

When a petition for mandamus is granted, the mandamus statute contemplates that a judgment will be entered. The statute provides:

A plaintiff who is given judgment, shall recover the damage sustained, together with costs and disbursements, and a peremptory mandamus shall be awarded without delay. An appeal from the district court shall he to the court of appeals in mandamus as in other civil cases.

Minn.Stat. § 586.09 (2000) (emphasis added).

A review of the caselaw reveals that “[historically, there has been little uniformity in the manner in which an aggrieved party has sought review by an appellate court in mandamus proceedings.” Schiltz v. City of Duluth, 449 N.W.2d 439, 440 (Minn.1990).

Early caselaw held that an order directing a peremptory writ of mandamus is appealable. See State v. Teall, 72 Minn. 37, 39, 74 N.W. 1024, 1024 (1898); State ex rel. Matthews v. Webber, 31 Minn. 211, 211, 17 N.W. 339, 339 (1883); see also McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn.1989) (citing State v. Teall in dicta). But in an opinion following Teall and Web-ber, the supreme court concluded, after examining the existing caselaw, that the “approved and correct procedure” is to appeal from the judgment or an order denying a motion for a new trial. State v. McKellar, 92 Minn. 242, 245-46, 99 N.W. 807, 808 (1904). The court also said that an appeal from an order directing a peremptory writ of mandamus can only be sustained by construing such an order as an “irregular judgment,” which is a practice that “should not be encouraged.” Id.

A later opinion cites McKellar and notes that the correct practice is to enter a formal judgment as in ordinary civil actions. State ex rel. Boldt v. St. Cloud Milk Producers Ass’n, 200 Minn. 1, 4, 273 N.W. 603, 605 (1937). Neve rtheless, the court accepted the appeal as taken from an “irregular judgment.” Id.

In a subsequent case, the supreme court noted that in Boldt, the appeal from the order granting the writ of mandamus was accepted as taken from an irregular judgment. Independent Sch. Dist. of White Bear Lake v. City of White Bear Lake, 208 Minn. 29, 30, 292 N.W. 777, 778 (1940). But the court also noted that the Boldt opinion points out the correct practice, which is to enter a judgment as in other cases. Id. The court concluded that where the writ is allowed, the judgment should so provide, and an appeal, if any, should be from the judgment. Id., 292 N.W. at 778-79.

Because Minn.Stat. § 586.09 and the caselaw provide that a judgment should be entered if a writ of mandamus is granted, the proper appeal is from a judgment entered pursuant to the February 6 order. Generally, an appeal taken from a judgment before its entry is premature. Schaust v. Town Bd. Of Hollywood Township, 295 Minn. 571, 572, 204 N.W.2d 646, 648 (1973). But because appellant reasonably relied on caselaw construing an order granting a writ of mandamus as an “irregular judgment,” we will allow this appeal to proceed. The trial court administrator shall enter a judgment pursuant to the February 6 order.

Appeal to proceed.


author: HARTEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Michael John AREND, Appellant.
    No. C2-02-672.
    Court of Appeals of Minnesota.
    Aug. 6, 2002.
    Mike Hatch, Attorney General, St. Paul, MN; and Raymond F. Schmitz, Olmsted County Attorney, James E. Haase, Assistant County Attorney, Rochester, MN, for respondent.
    Tina Liebling, Rochester, MN, for appellant.
    Considered and decided by HARTEN, Presiding Judge, WILLIS, Judge, and FOLEY, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

HARTEN, Judge.

Appellant challenges the district court’s decision to award him one day of jail credit for each day he spent in the Sentence to Serve program because when he served an earlier sentence, each day in the program counted as two days off that sentence. Because we find that the district court’s decision accurately reflects the time appellant spent in custody, we affirm.

FACTS

On 9 February 1999, appellant Michael Arend, who was on probation for gross misdemeanor DWI, admitted to an Olmsted County corrections officer that he had cocaine in his possession. Based on that admission, the district court revoked appellant’s probation and executed his DWI sentence. While serving the DWI sentence, appellant participated in the local Sentence to Serve program (STS). Each day appellant participated in STS counted as two days off his DWI sentence. The district court explained the program using the following example:

Defendant Smith is sentenced to 90 days in jail. Assuming no disciplinary problems, he would actually serve 60 days. Smith reports to jail and does 30 days of straight time. He then goes into the sheriffs STS program, and does 15 days of STS work. Those 15 days count as 30 days against his 60. The 60 days are satisfied in 45 days; 30 of straight time, and 15 of double-credit STS days. Smith is out of jail 45 days after he entered.

Appellant served 30 days on STS and received 60 days off his DWI sentence.

Appellant pleaded guilty to the 9 February controlled substance possession offense. The district court diverted appellant’s sentence under Minn.Stat. § 152.18 (1998) and placed him on probation. On 1 August 2000, the district court vacated the diversionary order and sentenced appellant to the custody of the commissioner of corrections for one year and one day. The district court then stayed appellant’s sentence upon the following conditions: that appellant serve 210 days in an adult detention center with credit for good .time and time served and abstain from drugs and alcohol.

On 18 December 2001, appellant admitted violating the terms of his probation and requested execution of his drug possession sentence. The district court issued an order executing appellant’s sentence and committing appellant to the commissioner of corrections for one year and one day with credit for time served. The district court gave appellant jail credit for the time “he actually spent incarcerated in * * * tjjail,” 216 days, a total that included the 30 days spent in STS as 30 days. Appellant was denied credit for an additional 30 days for time earlier served under the STS program. This appeal followed.

ISSUE

Did the district court err in giving appellant one day of jail credit for each day he participated in the STS program?

ANALYSIS

Appellant argues that the district court erred by not crediting the full “bonus” for time he earned by participating in the STS program. Under the STS program, appellant earned two days off his DWI sentence for each day he worked. He worked 30 days and received 60 days off his sentence. In executing the controlled substance sentence, the district court gave appellant 30 days jail credit for the 30 days he participated in STS. Appellant seeks the additional 30 days STS credit that he earned off his DWI sentence for credit on his drug possession sentence. In other words, appellant seeks 60 days of jail credit for the 30 days he participated in STS under the DWI charge, for a total of 246 days credit against the one-year-and-one-day controlled substance sentence.

“The granting of jail credit is not discretionary with the trial court.” State v. Parr, 414 N.W.2d 776, 778 (Minn.App.1987) (citation omitted), review denied (Minn. Jan. 15, 1988).

Awards of jail credit are governed by principles of fairness and equity and must be determined on a case-by-case basis. A defendant has the burden of establishing that he is entitled to jail credit for a specific period of time.

State v. Bradley, 629 N.W.2d 462, 464 (Minn.App.2001) (citations omitted), review denied (Minn. 15 Aug. 2001). We have not addressed whether time earned under a local STS or a similar program counts as future jail credit.

Under Minnesota law, a defendant is entitled to jail credit for “all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed.” Minn. R.Crim. P. 27.03, subd. 4(B); see also Minn.Stat. § 609.145, subd. 1 (2000). Additionally,

[j]ail credit shall reflect time spent in confinement as a condition of a stayed sentence when the stay is later revoked and the offender is committed to the custody of the Commissioner of Corrections. Such credit is limited to time spent in jails, workhouses, and regional correctional facilities.

Minn. Sent. Guidelines III.C.3. The district court credited appellant 30 days for the 30 days he worked for STS. The additional 30 days appellant now seeks as jail credit was not time spent in custody as required by the sentencing guidelines, but an additional credit created by STS for the purposes of that program.

The sentencing guidelines state that “[j]ail credit shall be awarded at the rate of one day for each day served.” Minn. Sent. Guidelines III.C.4. The comment to this guideline further states that “each day or portion of a day in jail should be counted as one full day of credit.” Minn. Sent. Guidelines cmt. III.C.05. Giving appellant two days of jail credit for one day he spent participating in STS would violate this principle.

Appellant contends that courts do not adhere to a literal interpretation of the rule one of day jail credit for one day in custody. He relies on State v. Jackson, 557 N.W.2d 552 (Minn.1996) (court awarded a full day of jail credit even though only a portion of the day was spent in custody). In Jackson, the supreme court followed the sentencing guidelines because the guidelines explicitly allow a full day of jail credit for a part of a day spent in custody. 557 N.W.2d at 553-54. There is no plausible support for appellant’s argument that he should receive 30 days of additional jail credit when he did not spend even a part of that time in custody.

Appellant also argues the denial of jail credit violates the fundamental fairness doctrine of the Fourteenth Amendment because he was told that he would earn two days for each day in STS. He relies on State v. Akers, 636 N.W.2d 841 (Minn.App.2001). In Akers, a county zoning office told appellant that he had until a certain date to clear unlicensed vehicles from his property. Before that date, police executed a search of appellant’s property with a warrant based on the unlicensed cars. Id. at 842. We held that the search violated fundamental fairness because the state misled appellant about the consequences of keeping the vehicles on his property. Id. at 843-44. Appellant’s reliance on Akers is misplaced. Here, appellant presents no evidence that the state told him that time earned off his DWI sentence through STS would count as future jail credit on a different offense. As the district court correctly noted, appellant received the full benefit of the bargain because he was given 60 days off his DWI sentence. The district court did not violate fundamental fairness under the Fourteenth Amendment.

DECISION

The district court correctly allowed appellant 216 days of jail credit.

Affirmed.

      . The legal authority for the local STS program and its “bonus” sentence credit was neither presented nor litigated by the parties. It is therefore not before us.

      . The parties agree that appellant served 216 days in confinement. The record is unclear as to how they arrived at the 216 days. The record is confusing as to the number of days, if any, that appellant served concurrently, on the DWI and controlled substance offenses prior to the order executing appellant’s year- and-one-day sentence. When appellant was serving his STS time, he had not yet been convicted of the controlled substance offense.