This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-0417

A14-0428

In re the Marriage of:

Gregory Ross Wickenhauser, petitioner, 

Appellant, 

vs. 

Denise Esther Wickenhauser, n/k/a Denise Esther Peterson, 

Respondent (A14-0417),

and 

Greg Wickenhauser, 

Appellant,

vs. 

Trust B of the Delmar C. Peterson Living Trust dated October 4, 1991; et al., 

Respondents (A14-0428)

Filed April 20, 2015

Affirmed

Peterson, Judge

Sibley County District Court

File Nos. 72-FA-11-61, 72-CV-12-85

Kenneth R. White, Law Office of Kenneth R. White, P.C., Mankato, Minnesota; and

Raymond Walz, Walz Law Office, Redwood Falls, Minnesota (for appellant Gregory 

Ross Wickenhauser)

Tami L. Peterson, Eskens Peterson Law Firm, Chtd., Mankato, Minnesota (for 

respondent Denise Esther Wickenhauser)
2

Wade S. Davis, Stinson Leonard, Street LLP, Mankato, Minnesota (for respondents Trust 

B of the Delmar C. Peterson Living Trust, et al.)

Considered and decided by Peterson, Presiding Judge; Worke, Judge; and 

Connolly, Judge. 

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

In these consolidated appeals from judgments in a marital-dissolution action and a 

trust action, appellant-husband argues that the district court (1) erred in finding that 

respondent-wife has a nonmarital interest in a 136.61-acre parcel of farmland purchased 

by the parties from trusts created by wife’s family and in failing to apply the Schmitz

formula to the farmland; (2) erred in denying husband’s claim of a nonmarital interest in 

a grain-and-energy account; (3) undervalued an option to purchase property; and (4) erred 

in finding that husband failed to show damages as a result of the trusts precluding him 

from farming certain land in 2013. We affirm.

FACTS

Appellant-husband Gregory Ross Wickenhauser and respondent-wife Denise 

Esther Wickenhauser, n/k/a Denise Esther Peterson, were married in 1996. In 2010, 

husband began a marital-dissolution action. The parties stipulated to child-support and 

some property-division issues. 

In December 2011, a trial was conducted on some disputed issues, including the 

value of a 136.61-acre parcel of farmland (136-acre parcel) purchased by the parties from 

trusts created by wife’s family after the death of wife’s father and the value of an option
3

to purchase additional land from the trusts.

1

 During the marriage, the parties bought and 

sold a 200-acre parcel of farmland, referred to as the Carlson farm. Husband testified 

that before selling the Carlson farm, he, wife, and wife’s mother had agreed that he and 

wife would buy the 136-acre parcel and a 12.2-acre building site from the trusts.

In an amended order filed June 15, 2012, the district court made findings 

regarding the parties’ sale of the Carlson farm and purchase of the property from the 

trusts. The parties bought the building site during the same month that they sold the 

Carlson farm, and they bought the 136-acre parcel about seven months later. The 

appraised value of the 136-acre parcel was $2,200 per acre, and the parties paid $1,500 

per acre for a total purchase price of $204,915. The parties paid the purchase price with a 

down payment of $17,115 from the proceeds of the sale of the Carlson farm and a 

secured loan of $187,800. The titles to the two properties were conveyed by warranty 

deeds to husband and wife as joint tenants.

The district court also made findings regarding an option agreement executed by 

husband and wife in 2005. The option agreement granted husband and wife an option to 

purchase an additional 414 acres from the trusts. The option agreement expires in 2025 

or on the death of wife’s mother, whichever comes later. The option agreement provided 

for a purchase price of $1,500 through 2014 and for recalculation of the purchase price in 

2015 and every five years thereafter at a rate of 68% of the average price for bare-land 

sales in the surrounding area. The option agreement states that it runs to the benefit of 

husband and wife but that “[i]f the marriage of [husband and wife] is dissolved, any 

 

1

The land owned by wife’s family (the Peterson farm) was held in two trusts. 
4

rights [husband] may have under this agreement shall cease, and as to lands [husband and 

wife] have acquired, [wife] shall have the right to acquire the interest of [husband] as 

determined by the court handling the dissolution.” The option agreement granted wife’s 

siblings a right of first refusal permitting them to purchase the 136-acre parcel, the 

building site, and the 414 acres for $1,500 per acre through 2014 and as recalculated in 

2015 and every five years thereafter. 

The district court found:

17. In exchange for the right to purchase the 

remainder of the Peterson Farm at a discounted rate, the 

parties gave up the right to sell, at fair market value, the 

property they already owned and any they would acquire 

from the Trust, without first giving wife’s siblings a chance to 

purchase the property at the discounted rate.

. . . .

19. Wife understood that purchasing the land for 68% 

of the appraised value and by receiving the right to purchase 

the entirety of the farm at the reduced rate, she was giving up 

any right to any inheritance from the proceeds of the life 

insurance policy on her mother.

20. The land subject to the Option to Purchase has not 

been put up for sale. The Court finds it likely that wife’s 

siblings will exercise their right of first refusal if the land is 

put up for sale. 

While the dissolution action was pending, husband brought an action against 

respondent trusts and trustees seeking specific performance of his right to purchase real 

estate under the option agreement and his right to farm the 414 acres under a lease 

agreement. The dissolution and trust actions were tried jointly to the court. The district 

court then held two additional days of trial in the dissolution action to address issues of 
5

marital and nonmarital property designations, the parties’ farming rights, and property 

valuation and distribution.

Witnesses testified that the main purpose of the trusts was to keep the farm in 

wife’s family. Wife’s brother, respondent Darren Peterson, testified that the Peterson 

farm had been in the family since 1913 and that after his father died, the family began 

having discussions about how to keep the farm in the family. He testified that the first 

goal of the trust and option-to-purchase agreements was keeping the farm in the family 

and making sure that the opportunity to purchase was available to all family members. 

Respondent-brother Daryl Peterson testified that the number one goal of the trusts was to 

keep the farm in the family. Certified Public Accountant Charles Morken, whom the 

Peterson family consulted about setting up the trusts and option to purchase, testified:

I think the intent of the family was that it was to stay in 

the Peterson family. That’s kind of the core of the whole 

agreement, that it was really important to the family that it be 

kept in the Peterson family and they tried to do everything 

legally that they could to assure that end. 

Husband agreed that a purpose of the trusts was to keep the farm in the Peterson family 

and that he understood that if he and wife got divorced, the Peterson family would be 

able to get the land back. 

There was also evidence that the conveyance, option, and lease agreements were 

in lieu of an inheritance to wife. Husband testified:

Q. I’m wondering, did you think if [wife] got the farm she 

would also get some of the life insurance?

A. The life insurance, no.

Q. Why did you have that understanding?
6

A. Because that was the understanding, from what [wife] had 

told me, that they had decided. 

Wife testified:

Q. And then I will direct your attention to the bottom part of 

it where it appears that there is a note that life insurance 

would then be divided by four. Can you read the rest of that 

sentence, please?

A. Life insurance would be divided by 4, [wife’s] portion 

being used up front to reduce the per acre cost of the land.

Q. And so is it your understanding that your inheritance was 

always part of this land negotiation?

A. Yes. 

Daryl Peterson testified:

Q. And do you recall any discussions having to do with 

inheritance and [wife]?

A. Yes, the agreement was that [wife] would basically get 

her portion up front in lieu of the cheaper prices on the farm, 

cheaper agreement. 

By order filed May 7, 2013, in the dissolution action, the district court determined 

that any interest in the 414 acres under the option agreement exceeding $1,500 per acre 

was wife’s nonmarital property and that any value exceeding $1,500 per acre for the 136-

acre parcel was wife’s nonmarital property.

Findings of fact, conclusions of law, order for judgment, and judgment and decree 

of dissolution were filed on September 11, 2013. The findings and conclusions are 

consistent with those in previous orders. The September 11 judgment also addressed

funds in the South Central Grain and Energy (SCGE) account. The parties stipulated that 

each party would receive $102,628.50 from the account for 2009 crop proceeds received 

after husband and wife’s separation. Husband claimed that the $506,870.98 balance 
7

remaining in the account after the April 23, 2010 valuation date was income that he 

earned by farming in 2010 and 2011. But the district court found that husband failed to 

trace the money in the account to income earned during 2010 and 2011 and rejected 

husband’s claim that the account balance was a nonmarital asset. 

Husband moved for amended findings. The district court granted the motion in 

part, but none of the amended findings are at issue in this appeal. 

In the trust action, the district court directed that “if [husband] chooses to proceed 

with the exercise of the option to purchase, he may do so.” The court found that husband 

failed to prove that he incurred damages as a result of not being allowed to farm the 414-

acre parcel under the lease agreement in 2013.

Husband filed separate appeals in the dissolution and trust actions. This court 

consolidated the appeals. 

D E C I S I O N

I.

“District courts have broad discretion over the division of marital property and 

appellate courts will not alter a district court’s property division absent a clear abuse of 

discretion or an erroneous application of the law.” Sirek v. Sirek, 693 N.W.2d 896, 898 

(Minn. App. 2005). When dividing property, a district court abuses its discretion when it 

resolves the matter in a manner “that is against logic and the facts on record.” Rutten v. 

Rutten, 347 N.W.2d 47, 50 (Minn. 1984). “This court will affirm the district court’s 

division of property if it had an acceptable basis in fact and principle even though this 

court might have taken a different approach.” Passolt v. Passolt, 804 N.W.2d 18, 25 
8

(Minn. App. 2011) (quotation and alterations omitted), review denied (Minn. Nov. 15, 

2011). A property division must be just and equitable but need not be mathematically

equal. Sirek, 693 N.W.2d at 900.

Property acquired by spouses during marriage is presumed to be “marital 

property.” Minn. Stat. § 518.003, subd. 3b (2014). This presumption can be “overcome 

by a showing that the property is nonmarital property” because the property was 

“acquired as a gift, bequest, devise or inheritance made by a third party to one but not to 

the other spouse.” Id., subd. 3b(a). We independently review the district court’s 

determination of whether property is marital or nonmarital, but we defer to the district 

court’s underlying findings of fact. Baker v. Baker, 753 N.W.2d 644, 649 (Minn. 2008).

A district court’s valuation of an asset is a finding of fact, which we will not set 

aside unless it is clearly erroneous. Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn. 

2001). Although a district court need not determine the exact value of an asset, it must 

reach a value “within a reasonable range of figures.” Id. (quotation omitted).

136-acre Parcel

Husband argues that because the 136-acre parcel was conveyed by warranty deed 

to husband and wife as joint tenants, the statutory requirement that an inheritance be 

given “to one but not to the other spouse” was not satisfied, and the district court erred in 

determining that wife has a nonmarital interest in the property. The joint tenancy does 

not conclusively show that the parcel is entirely marital property. See McCulloch v. 

McCulloch, 435 N.W.2d 564, 568 (Minn. App. 1989) (stating that “merely transferring 
9

title from individual ownership to joint tenancy does not transform non-marital property 

into marital property” (quotation omitted)).

The most important factor in determining whether a gift is 

marital or nonmarital is the donor’s intent. To constitute a 

valid gift inter vivos, the donor must intend to make a gift, the 

property must be delivered and the donor must absolutely 

dispose of the property. Although the issue of intent typically 

concerns whether the donor intended a gift at all, it logically 

follows that the identity of the donee also turns on the donor’s 

intent. Questions of intent are fact questions. Donative intent 

is demonstrated by the surrounding circumstances, including 

the form of the transfer. 

Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997) (citations omitted).

The attorney who was involved in the sale of the 136-acre parcel and who drafted 

the option and lease agreements testified that all of these transactions were part of an 

estate-planning process intended to keep the farm in the Peterson family. Several other 

witnesses testified that the main goal of the trusts was to keep the Peterson farm in the 

Peterson family. The option agreement expressly provides for the termination of any 

rights husband has under the agreement and any interest he has in lands acquired under 

the agreement upon dissolution. Although the 136-acre parcel was not acquired under the 

option agreement, the option agreement was drafted at about the same time that husband 

and wife purchased the 136-acre parcel, and the right of first refusal in the option 

agreement applies to the 136-acre parcel. This evidence and the evidence that the 

conveyance, lease, and option agreements were in lieu of an inheritance to wife are 

sufficient to overcome the presumption of marital property and support the district court’s 
10

conclusion that any value in the 136-acre parcel in excess of $1,500 per acre is wife’s 

nonmarital property.

Husband argues that even if the district court properly concluded that wife has a 

nonmarital interest in the 136-acre parcel, the matter should be remanded for application 

of the Schmitz formula because marital assets were used to purchase the parcel. Under 

the Schmitz formula,

the increase in the value of nonmarital property attributable to 

the efforts of one or both spouses during their marriage, like 

the increase resulting from the application of marital funds, is 

marital property. Conversely, an increase in the value of 

nonmarital property attributable to inflation or to market 

forces or conditions, retains its nonmarital character.

Nardini v. Nardini, 414 N.W.2d 184, 192 (Minn. 1987) (applying Schmitz v. Schmitz, 309 

N.W.2d 748, 750 (Minn. 1981)).

Husband’s argument ignores the fact that husband’s and wife’s ownership of the 

parcel was encumbered by wife’s siblings’ right of first refusal. On the valuation date 

and the date of the final district court order in the dissolution action, wife’s siblings had 

the right to purchase the 136-acre parcel for $1,500 per acre, and the district court found 

it was likely that they would have exercised that right if the property was sold. The 

finding that wife’s siblings likely would have exercised the right of first refusal is 

supported by Darren Peterson’s testimony that, if the property were sold, one of the 

siblings, more than likely him, would buy it. Daryl Peterson agreed that one of the 

siblings would buy it and testified that he would attempt to buy it. Thus, as the district 

court stated in the memorandum accompanying its order recognizing wife’s nonmarital 
11

interest in the 136 acres, “if the parties were to attempt to sell the 136 acre parcel at this 

time, they would be required to first offer it to one or more of [wife’s] siblings for 

$1,500.00 per acre.” Consequently, regardless of any increase that there may have been 

in the market value of the 136 acres, the parties could not sell the property for more than 

$1,500 per acre. Under these circumstances, we cannot conclude that the district court 

erred in not applying the Schmitz formula to any increase in the property’s value. 

Husband also argues that under Schmitz, the debt should have been allocated to 

both the marital and nonmarital interests because “[t]he mortgage was incurred in order 

to secure the entire asset, not just the marital portion.” But the $1,500-per-acre purchase 

price was paid only for the marital interest in the property. Any value in excess of $1,500 

per acre was what wife received as a nonmarital interest. The mortgage debt was secured 

by both the marital and nonmarital interests in the property, but it was incurred in order to 

purchase only the marital interest. The district court did not err in allocating the entire 

mortgage debt to the marital interest.

II.

SCGE Account

Husband argues that the district court erred in denying his claim that he had a 

nonmarital interest in the SCGE account. Because the account was held by the parties 

during the marriage, husband had the burden of proving the nonmarital character of funds 

in the account. See Senske v. Senske, 644 N.W.2d 838, 841-42 (Minn. App. 2002)

(explaining that if property is acquired in exchange for both marital and nonmarital 

property, the party seeking to prove its nonmarital character must trace an identifiable 
12

portion of the property to a nonmarital source); see also Prahl v. Prahl, 627 N.W.2d 698, 

705 (Minn. App. 2001) (concluding that a portion of property was nonmarital where 

party identified the value of the property at the time of the marriage).

The district court found:

42. It was common practice for [husband] to hold the 

cash balances in the cooperative accounts and withdraw the 

funds at later dates, often in subsequent years.

. . . .

44. [Husband] acknowledged that the [SCGE] account 

is directly derived from crops. At trial, he read his deposition 

testimony acknowledging that he did not know from which 

crop year the funds in the [SCGE] account derived. When 

asked which year the crops were grown for the account 

balance, he testified that he believed it came from his 2010 

and 2011 crops. He also testified that he did not know 

whether or not the account balance derived from crops grown 

in 2009.

. . . .

46. Furthermore, from the years 2001 through 2011, 

[husband] reported that the farming operation lost 

approximately $19,000.00 a year on average during those 

years. In 2010 and 2011 (the last two years that [husband] 

farmed), his tax returns report a loss of $21,937.00 and again 

of $14,714.00 respectively. If [husband] had paid the person 

who custom farmed the land in 2010 and 2011, the net profits 

would have been -$22,807 for 2010 and -$18,949 for 2011. 

These losses are also much less pronounced than they 

otherwise would have been because of the discounted rent on 

the lease property and the fact that [husband] and [wife] 

ultimately paid far less than the actual value for the farm 

equipment and ethanol stock purchased from Dorothy 

Peterson after her husband’s death. [Husband’s] reported 

income to both the IRS and the Court supports the 

presumption that the values in the [SCGE] account were 
13

accumulated wealth and not income derived after the parties’ 

separation.

47. If the parties had stopped farming in 2008, 2009 or 

2010, [they] would have realized the significant residual 

account balances in the cooperative accounts. That 

accumulated wealth would have clearly been a marital asset. 

The same is true of the account balance at the end of 2011. It 

is not a one year profit for [husband’s] efforts. It is the result 

of years and years of accumulation of wealth during the 

parties’ marriage. The fact that the amount of the marital 

assets was not fully apparent until after the parties’ farming 

operation ended in 2011 does not somehow transform the 

funds into non-marital assets.

. . . .

50. The Court received 75+ pages of statements at 

trial from SCGE, which purport to be a record of the parties’ 

transactions dating back to 2008. Based upon those 

statements, the Court is unable to ascertain whether any sums 

may be attributable to particular crop years. As a result, the 

Court must find that the [SCGE] assets are the result of 

accumulation of wealth throughout the parties’ 17 year 

marriage and, as such, are marital assets subject to equitable 

division between the parties.[

2

]

These findings are supported by the evidence and are sufficient to support the denial of 

husband’s claim to a nonmarital interest in the SCGE account.

III.

Husband argues that either his right to exercise the option to buy the 414 acres 

should have been specifically enforced in the trust action or the district court should have 

found that the option was a marital asset with value. Husband argues that “[i]f [he] is 

 

2 Husband argues on appeal that “[t]he extensive records from South Central Grain 

demonstrated that the $647,000 was the result of 2010 and 2011 grain production.” But 

he does not explain how the records demonstrate this.
14

allowed to close on the option, he secures the 414 acres in his name” and “then has the 

right to dispose of that property as he sees fit in the future.” “Specific performance is an 

equitable remedy . . . addressed to the sound discretion of the [district] court. . . .” 

Lilyerd v. Carlson, 499 N.W.2d 803, 811 (Minn. 1993) (quotation omitted). Because the 

dissolution action was pending when husband began the trust action and the option 

agreement provided for the termination of husband’s rights under the option agreement 

upon dissolution, the district court did not err in declining to specifically enforce 

husband’s right to exercise the option.

Husband is incorrect in arguing that if he is allowed to close on the option, he will 

have the right to dispose of the property as he sees fit. In the dissolution action, the 

district court found:

22. If either party exercises the option, they will be 

required to pay $1,500.00 an acre for the property purchased. 

The purchase price for the entire property is $661,500.00 

($1,500.00 X 441 acres = $661,500.00).[3]

23. According to the terms of the Option Contract, 

[wife] will acquire [husband’s] rights in the Option Contract 

as part of this divorce.

24. Given the Court’s finding that any value in excess 

of $1,500.00 per acre is [wife’s] nonmarital interest, there is 

no net gain or marital property to [husband] should he choose 

to exercise an option. [Husband] has not tendered payment 

for the property. If he were to buy the property, he would be 

required to then immediately sell to [wife] the same property 

for his purchase price. As a result, the decision to exercise 

the option would result in a zero sum gain in marital assets 

for the parties.

 

3

The reference to 441 acres is to total acres, but the parcel is referred to as 414 acres 

because only 414 acres are tillable.
15

In his reply brief, husband states that there is no evidentiary support for the factual 

assertion in wife’s brief that wife would likely sell the property to her family members 

for $1,500 an acre if husband exercised the option to buy and wife was then awarded the 

property in the dissolution. But the district court’s analysis does not assume that wife 

would sell the property. The district court’s determination that wife would be allowed to 

buy the property from husband for $1,500 an acre is based on the clause in the option 

agreement stating that if the parties’ marriage is dissolved, wife shall have the right to 

acquire husband’s interest as determined by the court handling the dissolution. 

IV.

Husband sought damages because the trusts precluded him from farming the 

leased land in 2013. As a general rule, damages in the form of lost profits

may be recovered where they are shown to be the natural and 

probable consequences of the act or omission complained of 

and their amount is shown with a reasonable degree of 

certainty and exactness. This means that the nature of the 

business or venture upon which the anticipated profits are 

claimed must be such as to support an inference of definite 

profits grounded upon a reasonably sure basis of facts.

Cardinal Consulting Co. v. Circo Resorts, Inc., 297 N.W.2d 260, 266 (Minn. 1980) 

(quotation omitted). The fact that some damages have occurred must “be established to a 

reasonable certainty.” Imperial Developers, Inc. v. Seaboard Sur. Co., 518 N.W.2d 623, 

626 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994). “Uncertainty as to the fact

of whether any damages were sustained at all is fatal to recovery. . . .” Cardinal 

Consulting Co., 297 N.W.2d at 267 (quotation omitted). “Damages which are remote and 
16

speculative cannot be recovered.” Jackson v. Reiling, 311 Minn. 562, 563, 249 N.W.2d 

896, 897 (1977).

The district court found that husband could have mitigated his damages by 

working as a machinist and farmer earning $17.75 per hour, which equals $36,920 per 

year, and that his damages for not being able to farm the leased land in 2013 would be 

equal to or less than $36,920 per year. Husband disputes the mitigation finding. Even if 

the evidence does not support that finding, the district court found that husband would 

have lost money by farming the leased land in 2013. Husband and wife’s tax returns for 

years 2005 through 2011 showed an average annual loss of $6,443 per year. Based on 

those tax returns and the testimony of husband’s accountant, the district court found that 

husband would not have made a profit farming the land in 2013. 

Husband argues that the district court erred in relying on the income reported in 

his tax returns and should have credited the evidence he presented. But this court defers 

to the district court’s determination of the weight and credibility of evidence. Hasnudeen 

v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996). Also, husband testified:

Q. Do you remember in your deposition when I asked you

historically how you would go about determining your past 

profits, losses, and net income that you told me that you 

would need to turn to your tax returns in order to be able to 

determine that, correct?

A. I believe so.

Q. And you said that your tax returns were the source of the 

information that would be accurate, correct, to determine that 

information?

A. Yes.

Q. And I guess what I’m getting at here, is just to confirm 

that you think that your tax returns are the indicator of how 
17

much profit, loss, net profit, income, expenses would be, 

correct? Yes or no.

A. Yes. 

Because the evidence supports the district court’s finding that husband would not have 

made a profit farming the leased land in 2013, we affirm the zero damages award.

Affirmed.