This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






In Re the Marriage of:
Wayne Frederick Colvin, joint petitioner,


Tammi Marie Colvin, joint petitioner,


Filed February 6, 2001


Stoneburner, Judge


Ottertail County District Court

File No. F0971060



Jeffrey D. Skonseng, Charles A. Krekelberg, Krekelberg & Skonseng, P.L.L.P., 213 South Mill Street, Fergus Falls, MN 56537 (for appellant)


LaDonne R. Vik, Nilles, Hansen & Davies, Ltd., Suite 1800, 201 Fifth Street North, Box 2626, Fargo, ND 58108 (for respondent)



            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N




Appellant Wayne Colvin alleges that the district court improperly modified the parties’ dissolution stipulation by interpreting an unambiguous provision in the decree concerning disposition of the homestead.  Alternatively, Husband argues that if the provision is ambiguous, the district court should have held an evidentiary hearing to reexamine the appropriate allocation of all marital assets.  Husband also argues he is entitled to attorney fees.  Because the district court’s clarification of an ambiguous provision in the parties’ stipulation regarding the homestead did not justify reopening the entire property division, and the district court did not abuse its discretion in requiring Husband to pay his own attorney fees, we affirm. 



            Pursuant to Judgment and Decree dated June 26, 1997, Tammi Marie Colvin (Wife) and Wayne Colvin (Husband) dissolved their marriage.  The judgment and decree fully incorporated the couple’s Marital Termination Agreement (MTA).  In the MTA, the couple stipulated that Wife would receive the marital home under the following conditions:

The joint tenancy interest of the parties in the [marital home] shall be dissolved upon entry of a Decree of Dissolution, and Petitioner-Wife shall receive a new interest, in fee simple absolute, as of the entry of a Decree of Dissolution.


The [marital home] is subject to a mortgage * * * .  The principal balance on the [mortgage] was approximately $38,000.00 as of June, 1997.  Petitioner-Wife shall be solely responsible for making the payments of principal and interest on the mortgage debt * * * and shall hold Petitioner-Husband harmless thereon.


            The distribution of the [marital home] to Petitioner-Wife shall be subject to a first right of purchase in Petitioner-Husband at a fixed price of $36,000.00 for twelve years from the date of the decree of marriage dissolution. Said first right of purchase shall be exercisable by Petitioner-Husband only in the event Petitioner-Wife removes her residence from the above described property, or in the event Petitioner-Wife places the above described real property on the market for sale, either event occurring within twelve years of the date of the decree of marriage dissolution.


At the time of the divorce, the parties’ equity in the homestead was approximately $32,000 (home valued at approximately $70,000 subject to mortgage of approximately $38,000).

 In the summer of 1998, Wife moved to Fairmont, North Dakota.  The district court found (and Wife concedes) that this move triggered Husband’s right to purchase.  In the spring or early summer of 1999, Husband moved into the marital home and began making mortgage payments on the property.  He has never tendered the $36,000 provided for in the decree.  Husband requested that Wife transfer the deed for the property to him in exchange for his assumption of the mortgage, but Wife refused.  Husband brought an action against Wife to exercise his right to purchase the marital home and compel Wife to deliver the deed.  As of February 2000, the mortgage balance was approximately  $36,000.

The district court found that the provision for Husband’s exercise of his first right to purchase is ambiguous because it fails to clearly indicate who would assume any remaining balance on the mortgage in the event Husband exercised his right.  The district court concluded it would be inequitable to interpret the decree to require Wife to pay off the mortgage if Husband exercised his right of first purchase.  The district court ordered that Husband pay Wife the $36,000 provided for in the decree and assume the existing mortgage within 60 days of the date of the Order to exercise his right of first purchase.  Husband appeals the district court’s determination that in order to purchase the home he must assume the mortgage.



I.          Stipulated Decree

When a marital dissolution judgment and decree is entered pursuant to a stipulation, the stipulation merges into the judgment and decree.  Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997).  Stipulations are binding contracts.  Id. at 521.  Absent ambiguity, a judgment and decree is a final distribution of the marital property.  Jensen v. Jensen, 440 N.W.2d 152, 155 (Minn. App. 1989).  The district court may not modify a final division of property, but it may clarify provisions of a dissolution decree or stipulation so long as it does not alter the parties’ substantive rights.  Redmond v. Redmond, 594 N.W.2d 272, 275 (Minn. App. 1999).

Whether a stipulated dissolution decree is clear or ambiguous is a legal question, which this court reviews de novo.  Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn. App. 1986); see Anderson v. Archer, 510 N.W.2d 1, 3 (Minn. App. 1993) (“Because the interpretation of a written document is a question of law, we do not defer to the district court’s interpretation of a stipulated provision in a dissolution decree.”); see also Untiedt v. Grand Labs, Inc., 552 N.W.2d 571, 574 (Minn. App. 1996) (stating whether a contract is ambiguous is a question of law), review denied (Minn. Oct. 15, 1996).

Here, the language of the stipulation is ambiguous because it fails to clearly indicate whether Husband will assume the mortgage if he exercises his first right of purchase or whether Wife must maintain the mortgage after Husband buys the home.  See Landwehr v. Landwehr, 380 N.W.2d 136, 138 (Minn. App. 1985) (indicating a writing is ambiguous if reasonably susceptible to more than one interpretation when judged by its language alone).  Husband reads the language of the stipulation as allowing him to purchase the marital home for the fixed price of $36,000, free and clear of the mortgage.  Conversely, Wife reads the provision as contemplating Husband’s assumption of the mortgage upon purchase of the marital home, giving her $36,000 to invest in a new home.  “Disagreement between the parties as to the interpretation of a [stipulation] may be tantamount to a finding of ambiguity.”  Erickson v. Erickson, 449 N.W.2d 173, 178 (Minn. 1989).  Because the parties’ interpretations conflict and both readings of the provision are plausible, we conclude that the stipulation is ambiguous and affirm the district court’s determination on that issue.

Where astipulated decree is ambiguous, the district court may clarify the ambiguous provision and such clarification does not constitute a modification of the decree.  Stieler v. Stieler, 244 Minn. 312, 319, 70 N.W.2d 127, 131 (1955); see Hanson v. Hanson, 379 N.W.2d 230, 232 (Minn. App. 1985) (acknowledging where terms of judgment and decree are ambiguous or indefinite, the district court may clarify or interpret such terms).  Interpretation of an ambiguous stipulation is a factual question.  See Trondson v. Janikula, 458 N.W.2d 679, 682 (Minn. 1990) (recognizing where a contract is ambiguous, the district court’s resolution of ambiguity is treated as a finding of fact); see also Anderson, 510 N.W.2d at 3-4.  On appeal, the district court’s finding is upheld unless clearly erroneous.  Minn. R. Civ. P. 52.01; see, e.g., Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975) (defining “clearly erroneous” as “manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole”).  When deciding whether a finding of fact is clearly erroneous, this court views the evidence in the light most favorable to the district court’s findings.  Trondson, 458 N.W.2d at 682.

Here, the district court heard testimony from the parties.[1]  Wife testified that she believed Husband would assume the mortgage in the event he purchased the marital home under the stipulated provision.  The district court gave credit to her testimony, finding it was supported by the fact that Wife received custody of both children, including a “special needs” child, and we must defer to the district court’s assessment of witness credibility.  Landwehr, 380 N.W.2d at 139.[2]  The district court also noted that while Husband received nothing from the marital home in the stipulated decree, he had no child-support obligation for the children.[3]  Wife had custody of both children and the district court found that it was unfair to require Wife to pay off the mortgage with the $36,000 that Husband would pay her in the event he exercised his right to purchase.  The district court also determined that Husband’s permanent purchase price of $36,000 represented a “cap” on Wife’s equity.  After listening to testimony and reviewing the extrinsic evidence, the district court determined that Husband must assume the mortgage if he exercised his right to purchase the marital home:

the parties intended that [Wife] shall be paid $36,000 as her equity in the marital home and, therefore retain her ability to provide a home for the children * * * [Husband] shall assume the mortgage now existing on the homestead and release [Wife] from said mortgage.


Sufficient evidence exists to support the district court’s interpretation of the stipulation.  The marital home has a value of approximately $70,000.  The most recent information indicates it has a current mortgage of $35,000.  Under Husband’s interpretation of the stipulation, Wife must satisfy the remaining mortgage balance of $35,000 with the $36,000 from Husband under the decree.  As a result, Husband would receive an equity interest of $70,000 in the marital home, free and clear of any mortgage.  Wife and children would be left with $1,000 and no home.  The district court found that this is not what the parties intended, and evidence in the record reasonably supports the district court’s determination. 

Interpretation of an ambiguous decree is a question of fact and because we view the evidence most favorably to the district court’s finding, we cannot say that the district court clearly erred in determining that Husband must assume the mortgage.

II.                Evidentiary Hearing

Husband argues that if he must assume the mortgage upon purchase of the marital home, then the district court should have held an evidentiary hearing because it modified the stipulated decree.  Contrary to Husband’s assertion, however, an evidentiary hearing is not necessary because the district court merely clarified an ambiguity in the parties’ stipulated decree.  See Edelman v. Edelman, 354 N.W.2d 562, 564 (Minn. App. 1984) (“[T]he interpretation or clarification of an ambiguous divorce decree d[oes] not constitute a modification of the decree.”).  By simply resolving an ambiguous provision, the district court did not modify the parties’ decree or impair their substantive rights.  See Redmond, 594 N.W.2d at 275 (recognizing district court may clarify provisions without modifying property division or altering parties’ substantive rights under the decree).  Because the district court did not modify the parties’ decree, an evidentiary hearing to reallocate all marital assets was unnecessary.

III.             Attorney Fees

Husband argues that he is entitled to attorney fees “at both the trial and appellate court levels.”  The district court determined that each party was responsible for his or her attorney fees.  “Generally, the award for attorney fees lies in the discretion of the court.”  Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987).  A decision whether or not to award attorney fees will not be upset absent an abuse of discretion.  See id.; see also Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977) (stating that allowance of attorney fees in family court rests almost entirely in the discretion of the district court); Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987) (recognizing decision whether to award attorney fees “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion”).  Cf. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (“There must be a clearly erroneous conclusion that is against logic and the facts on record before this court will find [an abuse of] discretion.”).  Here, nothing convinces us that the district court abused its broad discretion in refusing to award attorney fees.

Husband also claims he is entitled to attorney fees on appeal.  A party seeking attorney fees on appeal must submit such a request by written motion.  Minn. R. Civ. App. P. 139.06, subd. 1.  Husband failed to submit a written motion as required under the rule, and therefore we decline to grant Husband’s request for fees on appeal.



[1] After determining that the stipulation was ambiguous, the district court considered extrinsic evidence to determine the meaning of the ambiguous stipulation provision.  If a written stipulation is ambiguous, extrinsic evidence may be admitted to resolve the ambiguity.  Erickson, 449N.W.2d at 178.  Where extrinsic evidence is admitted, the meaning of ambiguous language becomes a question of fact.  Landwehr, 380 N.W.2d at 140; see Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (Minn. 1979) (noting where stipulation is ambiguous and construction depends on extrinsic evidence in addition to the written stipulation, a question of fact exists).

[2] Although the parties later decided that one of the children would reside with Husband, this was never formalized in any court proceeding.

[3] At oral argument, Husband argued that the district court erred in considering child or medical support in its decision because the stipulation provided that the parties would reserve the issue of child support and that Husband would maintain medical insurance on the parties’ two children.  While the stipulation indicates Husband would maintain medical insurance for the children and that the issue of child support was reserved, Husband points to nothing in the record indicating that he pays Wife child support.  Nevertheless, even if he does pay child support or has custody of one of the two children, as well as maintaining medical insurance, we are not convinced that the district court clearly erred in determining that Husband must assume the mortgage upon purchase of the marital home.