This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Diane LaRae Kvande,

f/k/a Diane LaRae Burnham,





Albert David Burnham,



Filed June 20, 2000

Affirmed; motion denied

Harten, Judge


St. Louis County District Court

File No. FX-98-600388


Sally L. Tarnowski, Johnson Killen Thibodeau & Seiler, P.A., 811 Norwest Center, 230 West Superior Street, Duluth, MN 55802 (for respondent)


Michael S. Husby, 750 U.S. Bank Place, Duluth, MN 55802 (for appellant)


            Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court’s order designating the settlement proceeds from a collateral action as marital property and the denial of his motion to reconsider that decision.  We affirm.



            Appellant Albert Burnham and respondent Diane Burnham were married in 1983 and their marriage was dissolved in 1998.  As part of the dissolution, the district court found that

[appellant] is a party to a pending lawsuit against the University of Minnesota-Duluth apparently relating to his prior employment there, but from the record before this Court, the precise nature of this litigation and the relief sought is unclear.  However, to the extent he seeks an amount of past wages that are attributable to the period of the marriage, such claim is a marital asset. 


The court concluded that


[s]uch portion of any settlement or award in [appellant’s] pending litigation * * * [that] may be allocated to lost wages which would have been earned during the period of the marriage of the parties * * * will be split equally between the parties * * *. 


During the parties’ marriage, appellant had brought a 42 U.S.C. § 1983 action against his employer, the University of Minnesota—Duluth (the university), and its chancellor,[1] for removing a photograph of appellant from a university display case.[2]  Appellant moved to revise his second amended complaint to include damages for lost wages.  But the federal district court never ruled on appellant’s motion because, in the interim, the parties agreed to settle for $65,000.  The settlement agreement signed by appellant and the university’s treasurer and chancellor provides:

[Appellant] forever release[s] and discharge[s] the University and [the chancellor] of and from any and all manner of action or actions, causes of action, claims, suits, judicial or administrative proceedings, fees, damages, attorney fees and costs * * *. 


* * * *


[T]his Agreement releases all asserted and unasserted claims up to the date of this Agreement in order that the parties may avoid further litigation. 


Respondent claimed one-half of the $65,000 settlement, alleging that the settlement included damages for lost wages accrued during the marriage.  The district court granted the motion and found that

it was the intention of the settling defendants that monies paid to [appellant] should foreclose any alleged liability to him for lost wages, including such as may have accrued to him during the period of the parties’ marriage.  


Appellant moved for reconsideration.  The district court denied the motion on procedural and substantive grounds.  This appeal followed. 



1.         Settlement Proceeds

            Appellant argues that the district court clearly erred by not designating the settlement proceeds as nonmarital property.  We need not defer to the district court’s legal determination as to the marital or nonmarital nature of property, but we must affirm the underlying findings of fact unless they are clearly erroneous.  Freking v. Freking, 479 N.W.2d 736, 739 (Minn. App. 1992).  A party seeking to have settlement proceeds designated as nonmarital property has the burden of proving that the settlement was calculated to compensate for a nonmarital interest.  Ward v. Ward, 453 N.W.2d 729, 732 (Minn. App. 1990), review denied (Minn. June 6, 1990). 

            Appellant contends that the settlement did not include payment for lost wages because the university was not a named defendant at the time of the settlement.  But the settlement agreement “forever release[d] and discharge[d] the University and [the chancellor]” from liability.  (Emphasis added.)  Appellant gave up his right to sue the university for lost wages; he clearly contemplated this right in his revised complaint.

            As support for his argument, appellant cites two affidavits from his attorney in the federal action.  But the district court concluded that

[i]n reaching this conclusion and making this finding the court has carefully considered the affidavits of counsel who represented [appellant] in the underlying litigation * * *.  Construing the language of the settlement document, which refers to “asserted and unasserted” claims, this court can only conclude the settling defendants were mindful of the potential of a claim by [appellant] for lost wages and * * * that such claims by [appellant] were forever foreclosed. 


            * * * *


The court is just as convinced the leverage of the wage loss claim was in the mind of [appellant’s] representatives as negotiations were undertaken to resolve the litigation.  Clearly that leverage, at the very least, played a significant role in the making of the payment and the amount thereof.


Appellant’s revised complaint contradicts his attorney’s assertion that the settlement agreement was not intended to compensate appellant for lost wages.  The revised complaint explicitly states that appellant intended to pursue a claim for lost wages.  See Van de Loo v. Van de Loo, 346 N.W.2d 173, 176 (Minn. App. 1984) (the purpose of the settlement proceeds controls their characterization as marital or nonmarital property).  We find no clear error in the district court’s designation of the $65,000 as the parties’ marital property.   

2.         Motion to Reconsider       

Appellant argues that the district court erred by denying his motion to reconsider under Minn. R. Gen. Pract. 115 because that rule, by its own terms, does not apply to family law matters.  Before the adoption of rule 115.11, motions to reconsider were not authorized.  See Carter v. Anderson, 554 N.W.2d 110, 113 (Minn. App. 1996), review denied (Minn. Dec. 23, 1996).  If rule 115 is inapplicable, as appellant argues, then his motion to reconsider was unauthorized under longstanding caselaw.

            Moreover, the district court held that: 

[E]ven if the procedural impediments [under rule 115] to [appellant’s] motion did not exist, and it were appropriate for this Court to entertain his motion, the result to [appellant] would be the same. 


We note that appellant does not challenge the district court’s provisional adverse ruling on the merits.  See, e.g., Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (issues not briefed on appeal are waived).  We conclude that the district court did not err by denying appellant’s motion for reconsideration.[3]


            Affirmed; motion denied.

[1] The eighth circuit upheld the dismissal with prejudice the university and the chancellor in his official capacity and the denial of summary judgment for the chancellor in his individual capacity.  Burnham v. Ianni, 119 F.3d 668 (8th Cir. 1997).

[2] The photograph showed appellant holding a .45 caliber military pistol and wearing a coonskin cap.

[3] We deny respondent’s motion to exclude affidavits and exhibits filed with the trial court.  See Minn. R. Civ. App. P. 110.01 (defining the record as the papers filed in the trial court, the exhibits, and the transcript).