This opinion will be unpublished and may

not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-958

 

 

In Re The Marriage of:

Phillip Bruce Dahlen, petitioner,

Respondent,

 

vs.

 

Margaret N/M/N Dahlen,

Appellant.

 

 

Filed October 24, 2000

Affirmed; motion denied

Lansing, Judge

 

 

Hennepin County District Court

File No. DW242185

 

 

Theresa A. Capistrant, Nelson L. Peralta, Peterson, Fishman, Livgard & Capistrant, PLLP, 3009 Holmes Avenue South, Minneapolis, MN 55408 (for respondent)

 

Margaret Dahlen, P. O. Box 582531, Minneapolis, MN 55458 (pro se appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            On appeal from an amended marital-dissolution judgment, Margaret Dahlen challenges the court’s jurisdiction to amend the original judgment after expiration of the appeal period and the court’s award of attorneys’ fees to Phillip Dahlen.  Because the district court had jurisdiction to enforce the original judgment and did not abuse its discretion in awarding attorneys’ fees, we affirm.  We deny Phillip Dahlen’s request for attorneys’ fees on appeal.

FACTS

Margaret Dahlen and Phillip Dahlen’s 1999 dissolution judgment provides that each of them retains, as tenants in common, equal right, title, and interest in their marital home.  The judgment further provides for Phillip Dahlen’s exclusive possession of the home until it is sold and requires each of them to cooperate in listing and selling the home.  The Dahlens are equally responsible to pay the principal, interest, taxes, and insurance, and all utilities, except the telephone bill, for which Phillip Dahlen is solely responsible.  The judgment also defines “net proceeds” for purposes of sale and orders the net proceeds to be divided equally.  The Dahlens had previously agreed to all of these provisions in a marital termination agreement, and the district court incorporated these provisions into the dissolution judgment.

Before the June 1999 dissolution judgment, the Dahlens listed the home for sale at $249,000 and later reduced it to $239,000 and then to $212,000.  By July 1999, when the home had still not sold, Phillip Dahlen found a real estate agent willing to list the home, but at a further reduced price of $195,900.  Margaret Dahlen refused to list it for that amount unless Phillip Dahlen would guarantee her $70,000 from the sale proceeds.

Phillip Dahlen moved for the exclusive right to sell the home.  The court granted the motion, ordered Phillip Dahlen to list the home at $195,000, and further ordered the listing price to be reduced by $10,000 for every 90-day period the home remained on the market.  The court denied Margaret Dahlen’s request to list the home at $212,000 or to guarantee her $70,000 from the sale. 

In December 1999, Phillip Dahlen signed a purchase agreement for $186,000, scheduled the closing, and informed Margaret Dahlen of the closing date.  After Margaret Dahlen failed to appear for the closing, the district court, on Phillip Dahlen’s ex parte motion, ordered an amended judgment that transferred title to Phillip Dahlen to allow the closing to go forward.  As her portion of the proceeds, Margaret Dahlen received $63,582, one-half the net sales price minus attorneys’ fees and costs caused by her failure to appear at the first closing.

Margaret Dahlen appeals from the amended judgment, contending the district court (1) lacked authority to amend the property division in the dissolution judgment and that the court-approved procedures affected her substantive rights, effectively awarded Phillip Dahlen maintenance, and violated her due process rights to notice of the closing and transfer of title; (2) erred in deducting closing costs from her share of the net proceeds; and (3) erred in awarding Phillip Dahlen attorneys’ fees.

D E C I S I O N

I

            In a marital dissolution, property divisions are final and can be modified only under limited statutory circumstances, including fraud, duress, or mistake.  Angelos v. Angelos, 367 N.W.2d 518, 520 (Minn. 1985); see Minn. Stat. § 518.145, subd. 2 (addressing the reopening of dissolution judgments).  Absent these limited circumstances, a district court does not have authority to amend the judgment after it has been entered and the time for appeal has expired.  Mikkelsen v. Mikkelsen, 286 Minn. 520, 522, 174 N.W.2d 241, 243 (1970).  But a district court may issue orders to implement, enforce, or clarify the provisions of a decree, providing it does not alter either party's substantive rights.  Kornberg v. Kornberg, 542 N.W.2d 379, 388 (Minn. 1996); Redmond v. Redmond, 594 N.W.2d 272, 275 (Minn. App. 1999).

Margaret Dahlen contends that the procedures the district court imposed to accomplish the sale of the home impermissibly amended the judgment and altered her substantive rights by depriving her of a right to an appraisal and by decreasing the amount she was entitled to receive from the sale.  The record does not support either argument.

First, the dissolution judgment retained title in both Phillip and Margaret Dahlen as tenants in common, required each of them to cooperate in the listing and sale of the property, and carefully outlined a method for distributing the net proceeds from the sale.  The Dahlens were unable to proceed cooperatively on the sale of the house.  Margaret Dahlen refused to list the home for sale at $195,900 and was unable to produce evidence to persuade the court that the home must be listed at $212,000.  The district court found that her positions were unreasonable and ordered the home listed at $195,000.  It is this reduction that Margaret Dahlen points to as a violation of her right to have a neutral appraisal.  But the judgment requires a neutral appraisal only if Phillip Dahlen purchases Margaret Dahlen’s interest in the home and the Dahlens are unable to agree on its market value.  The judgment does not require a neutral appraisal to set a sales price for a general market sale.

More than 18 months after the original listing, the home sold for $186,000.  Market forces established a fair and reasonable selling price for the Dahlens’ home, and the district court’s actions were necessary to effectuate the judgment by providing for the sale of the home.  The district court’s amendments to accomplish the sale did not impermissibly diminish Margaret Dahlen’s substantive rights under the judgment.  See Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991) (recognizing that court’s power to enforce property division does not constitute improper modification of judgment); Hanson v. Hanson, 379 N.W.2d 230, 233 (Minn. App. 1985) (amending judgment to fairly implement dissolution decree did not impermissibly redistribute property).

Second, Margaret Dahlen has not provided a factual basis for her claim that the amendment affected her substantive rights to the proceeds from the home sale.  The district court’s amendment did not change the proportion of Margaret Dahlen’s interest in the home’s value—she was still awarded one-half of the net proceeds, and the amended judgment did not change the definition of net proceeds.  Accordingly, we reject Margaret Dahlen’s argument that the district court altered her substantive rights by amending the dissolution judgment.

Margaret Dahlen raises three additional presale issues.  She contends that the equal responsibility for utilities was inequitable and that she had inadequate notice of the closing and of the court’s transfer of title to Phillip Dahlen.

The payment of home maintenance costs and monthly payments of principal, interest, taxes, and insurance, and utilities was provided for in the original dissolution judgment and was not changed in the amendment.  Margaret Dahlen did not appeal from the judgment and consequently cannot belatedly raise these issues.  See Marzitelli v. City of Little Canada, 582 N.W.2d 904, 907 (Minn. 1998) (stating appeal time is jurisdictional).  Furthermore, the district court resolved the issue Margaret Dahlen specifically raises, the inequity of equally sharing utility payments.  The district court ordered Phillip Dahlen to reimburse Margaret Dahlen for any utility payments when only Phillip Dahlen resided in the home.

The record does not support Margaret Dahlen’s claim that she received inadequate notice of the closing.  The record demonstrates that Phillip Dahlen's attorney wrote directly to Margaret Dahlen more than one week before the scheduled closing.  Correspondence between Phillip Dahlen's attorney and Margaret Dahlen's attorney similarly reflects that Margaret Dahlen was aware of the closing date.  In addition, the day before the closing, the district court itself admonished Margaret Dahlen's attorney to make sure that Margaret Dahlen attend the closing or the court would give Phillip Dahlen authority to close on his own.

Finally, Margaret Dahlen contends that the district court's January 5, 2000, order amending the judgment and decree by transferring title to Phillip Dahlen was an impermissible ex parte order.  We disagree.  The district court determined in its July 29, 1999, order that because the Dahlens were unable to cooperate, Phillip Dahlen should have the exclusive right to sell the house.

The court’s actions after the July 1999 hearing and order were a series of administrative steps to accomplish the sale.  The day before the closing, in a conference call that included Margaret Dahlen’s attorney, the court stated that if Margaret Dahlen did not appear at closing, Phillip Dahlen was authorized to sign for both parties or, alternatively, could contact the court.  When Margaret Dahlen did not appear at the closing, attempts were made to contact both her and her attorney.  When neither could be reached, the district court signed and faxed to the closing an order granting Phillip Dahlen the authority to sign the closing papers.  The closing agent, in consultation with Hennepin County’s Torrens division, determined that the order was insufficient and an amended judgment was necessary.  The district court accordingly amended the judgment.

Margaret Dahlen was represented in the July hearing and the conference call before the closing when the district court stated that alternative procedures would be used if Margaret Dahlen did not appear at the closing.  The remaining steps were required by her failure to appear and the lack of success in the attempts to contact her.  The court’s implementation actions did not violate Margaret Dahlen’s due-process rights.

II

            Margaret Dahlen contends that the district court erred in deducting closing costs from the sale of the home in calculating the net proceeds.  The Dahlens agreed and the judgment provided that net proceeds constituted the “usual and customary expenses of sale such as attorneys’ fees, points, broker’s commissions, assessments, expenses of updating the abstract, and other normal costs of closing.”  The district court did not change the parties’ definition of net proceeds in the amended judgment.

On December 28, 1999, before the closing, Phillip Dahlen's attorney sent Margaret Dahlen the closing statement indicating the total net balance of approximately $130,025 from the home’s sale.  The net proceeds were calculated according to the Dahlens’ marital termination agreement as incorporated into the dissolution judgment.  The district court did not err in deducting closing costs in calculating the sale’s net proceeds.

III

            The district court has discretion to award attorneys' fees under Minn. Stat. § 518.14, subd. 1 (1998), and its award will not be disturbed absent an abuse of that discretion.  Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987).  An award of attorneys’ fees is appropriate when one party has unreasonably contributed to the length or expense of the proceeding.  Redmond, 594 N.W.2d at 276.

            The record supports Phillip Dahlen’s argument that Margaret Dahlen refused to cooperate in the listing and sale of the home.  The district court did not, therefore, abuse its discretion in awarding Phillip Dahlen $518 in attorneys’ fees incurred as a result of Margaret Dahlen’s failure to appear at the closing.

Phillip Dahlen also requests his attorneys’ fees incurred on appeal, claiming Margaret Dahlen’s appeal is frivolous and brought solely to harass him.  A party seeking attorneys’ fees on appeal must submit such a request by written motion.  Minn. R. Civ. App. P. 139.06.  Phillip Dahlen did not submit a written motion as required under the rule.  We recognize that fees may be granted within this court’s discretion on its own motion.  Id.; Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994).  We are not persuaded, however, that Margaret Dahlen’s appeal was wholly frivolous or meant to harass, and we therefore decline to grant fees on appeal.

We also decline to address Margaret Dahlen’s claims relating to the disbursement of jointly owned stock and the sale of the Dahlens’ piano.  Our review of the record suggests that these issues have been resolved.  But whether or not the issues are resolved, they are beyond the scope of review as set forth in this court’s special-term order limiting appeal to issues relating only to the amended judgment.  See Dahlen v. Dahlen, No. C0-00-536 (Minn. App. May 9, 2000).

Affirmed; motion denied.