Opinion
Nos. C2-99-711, CX-99-746.
Filed January 18, 2000.
Appeal from the District Court, Hennepin County, File No. DC 169062.
R.D. Estes, David R. P. Houston, and Richard D. Goff, (for respondent Dale Barlage)
Susan M. Lach, John W. Lang, Elizabeth L. Plitzuweit, (for appellant Kathleen Wright)
Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
In these consolidated appeals, appellant Kathleen Wright Barlage n/k/a Kathleen Wright appeals from the district court's order finding that she is no longer entitled to an interest in all but four properties abandoned by the bankruptcy trustee near the time of the parties' dissolution and declining to award her attorney fees. Respondent Dale E. Barlage: (1) appeals the district court's finding that appellant's motion for new trial or amended findings of fact was not an improper motion for reconsideration; (2) contends the district court erred in construing the dissolution decree regarding the property abandoned by the trustee; (3) argues the district court erred in granting appellant permanent maintenance and in not considering the gifts from appellant's family members as a financial resource to her; and (4) argues the district court erred in denying his motion for attorney fees.
We affirm the district court's order with respect to each of respondent's claims and appellant's claim for attorney fees. We also affirm the district court's finding that respondent's interests in the Greenfield Farm, Grand Forks Property, Loeffler Parcel, and Hackett Parcel were either "foreclosed or cancelled by contract cancellation," leaving nothing to award. We, however, reverse the district court's finding that appellant lost her interest in the following real property: Rosholt Farm I II, Warroad Property, Dave Clark Farm, Cotton Property, and Palacio Del Sol; and the following personal property: Lewiston Properties
Limited Partnership, Mentor 1983 Research Limited Partnership, 100 shares Northwest Home Care Inc., Barlage-Doom General Partnership, DWI Partnership, Wayzata Bayview Limited Partnership, Days Inn Hotel, Somerset Wyoming Limited Partnership, Spring Creek Ranch Company, and Financial Services Inc. We remand to the district court for an order specifically listing all property in which the trial court's April 7, 1992 amended order granted appellant an interest and requiring respondent to account for the monies or other property or value received from the properties listed by the district court on remand.
FACTS
Respondent Dale E. Barlage and appellant Kathleen Wright Barlage were married on November 8, 1975. On April 7, 1992, the parties' marriage was terminated pursuant to a dissolution decree.
During portions of the marriage, the parties enjoyed a very high standard of living. Respondent was employed as a securities broker from 1975 through August 1989. In 1987 and 1988, respondent's gross income exceeded $500,000 per year. In the late 1980s, respondent became involved in a real estate venture and lost a substantial amount of money. Respondent also lost his employment in August 1989, and eventually filed for bankruptcy on April 10, 1990.
The petition for dissolution was filed on July 24, 1990, and the trustee for respondent's bankruptcy became an interested party in the dissolution proceedings. From July 23, 1990, to January 22, 1992, the bankruptcy trustee gave notice of abandonment of 13 different properties.
On January 31, 1991, the respondent and the trustee entered into a settlement agreement, and the trustee agreed to abandon several enumerated properties. In its April 7, 1992 amended order dissolving the parties' marriage, the trial court made the following property distributions: In paragraph 3, it awarded respondent the Jackson, Wyoming home and all of the personal property located there. The trial court then awarded appellant a "disproportionate" share of marital assets because it found that respondent had dissipated and transferred marital assets. In paragraph 4, the trial court awarded appellant: (1) the Wayzata home, (2) one-half equity in the real property owned by the parties, except the Jackson, Wyoming home; and (3) all items of personal property designated as "waived" by the trustee except the Wyoming residence personal property.
Finally, in paragraph 10, the trial court included a catchall provision that stated:
With respect to any property, or assets abandoned by the Trustee in bankruptcy of the Husband, Husband and Wife shall be entitled to a 50% joint interest in said abandoned property or assets.
The trial court specifically reserved the issue of maintenance due to the uncertainty of the parties' financial situations.
In November 1996 and April 1997, respondent bought out the security interest in eight properties previously abandoned by the bankruptcy trustee. The purchase agreement entered into by respondent for the transfer of these properties acknowledges that both respondent and appellant have an interest in the transferred property. Appellant, however, was not informed of respondent's transfers of the properties when they occurred.
On October 1, 1998, appellant filed a motion for maintenance and an award of 50% interest in the properties abandoned by the trustee. On December 21, 1998, the district court issued an order awarding appellant permanent maintenance of $3,900 per month and denying her request for 50% of the property abandoned in the bankruptcy.
Both parties filed motions for new trial or amended findings of fact. In response to appellant's motion, the district court altered its findings and determined the trial court's dissolution decree granted appellant a 50% interest in the items of real and personal property covered by paragraph 10 and a 75% interest in the properties referenced in paragraph 4. The district court, however, found that it would be inequitable to perfect appellant's interest in the properties because of the length of time that had passed and respondent's extension of new consideration to repay the liens on eight of the properties. The district court, therefore, awarded appellant a 50% interest in four of the properties. The district court did not alter its findings regarding maintenance.
Both parties appealed from the district court's February 22, 1999 order.
DECISION
I. Propriety of Motion for Amended Findings
Respondent argues appellant's motion for new trial or amended findings of fact filed on January 15, 1999, was an improper motion for reconsideration and insufficient to toll the running of the time for an appeal. See Carter v. Anderson, 554 N.W.2d 110, 113 (Minn.App. 1996) (holding a motion for amended findings that does no more than reargue a prior motion is really an impermissible motion for reconsideration), review denied (Minn. Dec. 23, 1996).
Under Minn.R.Civ.P. 52.02, a party may file a motion for amended findings. "The purpose of a motion for amended findings `is to permit the district court a review of its own exercise of discretion.'" Lewis v. Lewis, 572 N.W.2d 313, 315 (Minn.App. 1997) (quoting omitted), review denied (Minn. Feb. 19, 1998)).
A proper motion for amended findings must both identify the alleged defect in the challenged findings and explain why the challenged findings are defective. Lewis, 572 N.W.2d at 315. An explanation of why findings are allegedly defective should address the relevant standard for amending findings . Id. at 316.
Upon a review of the record, we conclude appellant's motion for amended findings was proper. Although appellant repeats some of the arguments she made in her initial motion, her motion for amended findings clearly points out why she believed the district court's order was erroneous and explains that if the court's interpretation were given effect, several marital assets would not have been awarded to either party. See id. (stating a proper motion for amended findings must both identify the alleged defect in the challenged findings and explain why the challenged findings are defective).
A. New evidence
Respondent next contends the district court erred in allowing appellant to support her motion for amended findings and/or new trial with "new evidence" — an affidavit of counsel which was not part of the district court record. Appellant responds that the affidavit is not "new evidence," but merely a summary of the information in the court file. The affidavit submitted by appellant states that there is no evidence in the court file that would have given the trial court notice that respondent's bankruptcy trustee had abandoned several properties on January 22, 1992. We find no merit in respondent's argument and agree that the affidavit did not present new evidence.
B. Evidentiary hearing
Respondent argues the district court erred in not holding an evidentiary hearing to evaluate the evidence submitted in appellant's affidavit regarding the trial court's knowledge of the timing of the abandonment of the property by the bankruptcy trustee. Because we conclude the affidavit did not present new evidence, respondent's contention is meritless. Moreover, we conclude he has waived this argument for purposes of appeal. In his post-trial motion, respondent never requested an evidentiary hearing based on appellant's motion for amended findings and/or new trial . See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding this court will not generally consider issues raised for the first time on appeal).
II. Parties' Interest in Abandoned Property
A. Interpretation of paragraph 10
Respondent contends the district court erred in its interpretation of paragraph 10 of the trial court's April 7, 1992 amended dissolution decree and, therefore, improperly determined appellant's interest in the abandoned property. This paragraph states:
10. With respect to any property, or assets abandoned by the Trustee in bankruptcy of the Husband, Husband and Wife shall be entitled to fifty percent interest in said abandoned property or assets.
In interpreting this paragraph in its February 22, 1999 order, the district court concluded that although all of the property at issue had been abandoned by the trustee by January 22, 1992, the trial court was not aware the property had already been abandoned when it issued its amended judgment and decree on April 7, 1992. Thus, the district court concluded the trial court was not aware the real property awarded to appellant under paragraph 4 of the dissolution decree had not been abandoned by the trustee, and this property was included in paragraph 10. Additionally, the district court concluded numerous items of real and personal property had not been specifically awarded to either party and, therefore, fell under paragraph 10.
Respondent contends the correct interpretation is that paragraph 10 represents a response by the trial court to the parties' dispute over the ownership of a specific list of properties abandoned by the trustee. According to respondent, the properties at issue were listed in respondent's settlement agreement with the bankruptcy trustee and partially listed in paragraph 17 of the dissolution decree.
Respondent explains that because the trial court's original judgment and decree included an abbreviated version of the properties listed in the respondent's settlement, respondent filed a post-trial motion for amended findings granting him 100% ownership of the property abandoned by the trustee and listed in the settlement agreement. Appellant responded by requesting joint ownership in the property. Following these post-trial motions, the trial court issued an amended dissolution order which included paragraph 10.
Because interpretations of dissolution decrees should render them "reasonable, effective, and conclusive," Palmi v. Palmi, 273 Minn. 97, 104, 140 N.W.2d 77, 82 (1966), we conclude the district court correctly interpreted paragraph 10. The district court's interpretation that paragraph 10 applies to the properties not yet abandoned by the trustee or already abandoned, but not yet known to the trial court, insures all of the parties' property is awarded. It also harmonizes with paragraphs 3 and 4 of the decree, which make specific awards of property to the parties. Finally, it takes into account the bankruptcy proceeding's removal of many items of the parties' property from the trial court's jurisdiction and the fact that the trial court was unaware of the abandonment of the property when paragraph 10 was crafted.
B. Appellant's interest in abandoned property
The district court found appellant had a 75% interest in the properties listed in paragraph 4 of the dissolution decree and 50% interest in the properties covered by paragraph 10 of the dissolution decree. But it found that appellant's failure to assert her interests after the dissolution and respondent's actions to re-acquire eight of the properties prevented the court from perfecting respondent's interest in the property. The district court also noted that appellant's interests in the Greenfield Farm, Grand Forks Property, Loeffler Parcel, and Hackett Parcel "were either foreclosed or cancelled by contract cancellation leaving nothing to award via" paragraph 10 of the trial court's decree.
We agree with the district court's interpretation of the trial court's amended decree as it pertains to the parties' interests in the properties awarded in paragraphs 4 and 10 of the decree. We also agree with the district court's conclusion that the cancellation of contracts for deed on the Greenfield Farm and Loeffler Parcel and the mortgage foreclosures on the Hackett Parcel and Grand Forks Property left no property interests to be awarded pursuant to paragraph 10 of the trial court's April 7, 1992 decree.
Moreover, we recognize the complexity of this case and the time and careful consideration given to it by the district court. Nevertheless, we are constrained to conclude the question of whether the doctrine of laches barred appellant's action to assert her interest in the properties abandoned by the trustee, including those in which respondent has recently re-acquired interests, was not before the district court.
The focus of appellant's motion was to clarify the distribution of property in the April 7, 1992 amended dissolution decree. The district court was not required to consider the belated nature of appellant's action or the parties' rights as co-tenants at this time. We, therefore, reverse the district court order to the extent it found laches barred appellant's interest in the property. We remand for an order specifically listing all properties in which appellant is entitled to an interest and requiring respondent to account for the monies or other property or value received from the properties listed by the district court on remand.
III. Permanent Maintenance
A. Need for award
Respondent contends the district court made several errors in granting appellant permanent maintenance. First, respondent argues the district court's approach to maintenance was fundamentally flawed because the district court was "under the mistaken impression that this was a motion for modification of maintenance" and, therefore, improperly placed the burden of proving that maintenance was not required on the respondent. He also contends the district court reverted to the concept of alimony and granted appellant maintenance based on her status as a former spouse rather than need.
Awards of spousal maintenance are governed by Minn. Stat. § 518.552 (1998). Minn. Stat. § 518.552, subd. 1, provides:
In a proceeding for dissolution of marriage * * * the court may grant a maintenance order for either spouse if it finds that the spouse seeking maintenance:
(a) lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or
(b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment * * *.
No single factor is dispositive for determining the type or amount of maintenance. Erlandson v. Erlandson, 318 N.W.2d 36, 39 (Minn. 1982). Essentially, the court must balance the financial needs of the spouse seeking maintenance against the financial condition of the spouse from whom maintenance is sought. Jensen v. Jensen, 409 N.W.2d 60, 61 (Minn.App. 1987).
Although the district court mentioned in its February 22, 1999 order that it was considering a motion for modification of maintenance, we find no indication it placed the burden on respondent to prove maintenance was not required. Rather, in light of the district court's extensive findings regarding both parties' expenses and incomes, this appears to be a harmless clerical error. See Minn.R.Civ.P. 61 (stating harmless error to be ignored). The district court found, and respondent does not disagree, that appellant is totally disabled by progressive systemic sclerosis and, therefore, unable to earn any income. Her monthly expenses, including living assistance, are $7,600. The district court also found that the major piece of marital property awarded to appellant, the homestead, was foreclosed upon and lost shortly after the dissolution decree "through no fault of [appellant]." No other piece of income-producing property was awarded to appellant. Thus, appellant clearly meets the statutory standard for receiving maintenance. See Minn. Stat. § 518.552, subd. 1.
B. Standard of living
Respondent claims the district court erred in evaluating appellant's needs in light of the parties' pre-bankruptcy standard of living. He asserts that by utilizing the monthly expenses the trial court found for appellant as a starting point, the district court's determination was based on the pre-bankruptcy standard of living rather than the parties' standard of living at the time of the dissolution.
In support of his contention that this is a legal error, respondent cites the dissent in Otis v. Otis, 299 N.W.2d 114 (Minn. 1980), for the proposition that maintenance should be set at a sum "which will maintain [the wife] at a standard of living commensurate with what she and her husband enjoyed at the time of the dissolution." Id. at 118 (Otis, J., dissenting) (emphasis added) (citations omitted). But, Otis is merely stating a general principle. It does not deal with the situation in which the parties' standard of living dropped significantly at the time of the dissolution. Additionally, Minn. Stat. § 518.552, subd. 2(c), provides that in making a maintenance award, the court should consider the standard of living established during the marriage. Moreover, the requirement that the district court consider both parties' incomes and expenses at the time it is making its award ensures that the maintenance obligor's income and ability to pay maintenance will be considered when a maintenance obligation is set.
In the instant case, the district court clearly indicated the level of maintenance he granted appellant did not approach the standard of living she had enjoyed during the marriage. We find no error in the district court's evaluation of appellant's needs.
C. Gifts from family members
Following the parties' dissolution, appellant received regular cash contributions from her father and brother. Respondent argues that the district court should have considered the money appellant received from her father and brother as part of appellant's financial resources in determining the amount of his spousal-maintenance obligation. In support of his argument, he relies on this court's decision in Barnier v. Wells, 476 N.W.2d 795 (Minn.App. 1991), and the unpublished decision of Rich v. Rich, No. C8-96-2593, 1997 WL 406645 (Minn.App. July 22, 1997). Under the circumstances here, we find these cases unpersuasive.
In Barnier, the court held that if a gift is regularly received from a dependable source, it may properly be used to determine the amount of an obligor's child-support obligation. Barnier, 476 N.W.2d at 797. No published decision has extended Barnier from the child-support setting to the spousal-maintenance setting.
Respondent's citation of Rich also provides no assistance. Rich concerned a situation where the husband continually disobeyed the district court's orders to pay support and misrepresented his income. Rich, 1997 WL 406645, at *4. We, therefore, held the district court did not abuse its discretion in including regular gifts from his parents as income in determining his spousal-maintenance obligation. Id. The obligor's efforts to disguise income and avoid support payments distinguish it factually from the instant case. Moreover, in Rich and Barnier, the courts focused on the financial position of the obligor, not the potential obligee.
Respondent's reliance in oral argument on Bissell v. Bissell, 291 Minn. 348, 191 N.W.2d 425 (1971), is also misplaced. In Bissell, the supreme court held the district court did not abuse its discretion when it modified the wife's alimony after she received regular gifts from a meretricious relationship. Id. at 352, 191 N.W.2d at 427-28. In the instant case, we are not considering a modification of maintenance or a meretricious relationship; rather, we are concerned with establishing maintenance.
Moreover, gifts are not listed as income under Minn. Stat. § 518.54, subd. 6 (1998), despite numerous examples of periodic compensation. As we noted in Barnier, regular gifts cannot be classified as enforceable obligations, and "an expected gift is not always a resource subject to child support." Barnier, 476 N.W.2d at 797. We conclude the distinction drawn between support obligors and obligees is also logical in the context of maintenance obligations. As the district court correctly observed, parents do not have a legal obligation to support their adult children, and including gifts from a parent in an obligee's income shifts the maintenance burden from the obligor spouse to the obligee's parent.
D. Respondent's income
Finally, respondent contends the district court improperly used gross income, rather than net income, in determining his ability to pay spousal maintenance. Based on the financial information provided by respondent, appellant's expert determined that he had gross annual income of $130,000. However, the expert concluded this amount was "tax-free" due to large losses carried forward from respondent's business. The expert testified the losses were so great that respondent's income would be tax-free for the foreseeable future.
We conclude the district court did not err in considering respondent's substantial losses carried forward in determining his ability to pay maintenance. Respondent did not contest the court's factual conclusion regarding his tax situation, and the court is given discretion to rely on the testimony of expert witnesses. See Jorschumb v. Jorschumb, 390 N.W.2d 806, 812 (Minn.Ct.App. 1986) (stating the district court is given discretion to weigh the evidence and determine the credibility of witness testimony, and this court will not substitute its judgment), review denied (Minn. Aug. 27, 1986). Moreover, the record demonstrates respondent provided inadequate documentation for the expert to determine a precise net income figure. Thus, respondent cannot complain about the district court's award of maintenance. See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn.App. 1987) (stating that appellant cannot complain where inadequate documentation leads, at least in part, to the district court's decision regarding maintenance).
III. Attorney Fees
Both parties argue the district court erred in denying them attorney fees. An award of attorney fees in dissolution cases rests within the broad discretion of the district court and will not be disturbed absent a clear abuse of discretion. Lappi v. Lappi, 294 N.W.2d 312, 316 (Minn. 1980).
We conclude the district court was within its discretion to deny the parties' requests for fees. There is evidence in the record supporting the district court's conclusion that neither party was financially able to pay the other's fees. See Minn. Stat. § 518.14, subd. 1 (1998) (providing a court may award fees if it finds "the party from whom fees * * * are sought has the means to pay them").