This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-00-2138

 

In Re the Marriage of:

 

Sharon Kay Young Timlin, petitioner,

Respondent,

 

vs.

 

William Leo Timlin,

Appellant.

 

Filed July 31, 2001

Affirmed

Harten, Judge

 

Hennepin County District Court

File No. 220789

 

Paul F. Leutgeb, Paul F. Leutgeb, Ltd., 140 West 98th Street, Minneapolis, MN 55420 (for appellant)

 

Marilyn J. Michales, Rebekah M. Brown, Honsa & Michales, P.A., 5500 Wayzata Boulevard, Suite 1075, Minneapolis, MN 55416 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            In this post-trial dissolution proceeding, appellant alleges error of law in the denial of his motion to remove the district court judge and abuse of discretion in the imposition of sanctions on him and his attorney and in the award of permanent spousal maintenance to respondent.  Because we see neither error of law nor abuse of discretion, we affirm.

FACTS

 

In 1972, appellant William Timlin, then a career United States Air Force officer, married respondent Sharon Kay Young Timlin, then a homemaker.  The parties had four children; only the youngest is still a minor.  In 1990, appellant retired from the Air Force.  He was subsequently employed as a dental clinic manager at an annual gross salary of $42,640, and was involuntarily terminated in February 1998.

The marital dissolution action was commenced in March 1996 and assigned to a judge in November 1996.  In March 1998, the parties stipulated that appellant would have physical custody of the minor child, that respondent would receive $750 for that month, and that each party would disclose changes in employment status and receipt of money from any source.  They further stipulated that appellant would have title to and possession of the homestead until the youngest child finished high school and the homestead could be sold.  The sale proceeds would be used to reimburse respondent $40,000 for her nonmarital interest in the homestead and to provide each party with $10,000 for attorney fees; any equity would be divided between the parties.  The parties also stipulated that they would evenly divide appellant’s Air Force pension.  The parties’ incomes, child support, and spousal maintenance were reserved for further review.  Judgment was entered based on the parties’ stipulation.

In late 1998, respondent moved to compel appellant’s compliance with the judgment in regard to giving respondent and her attorney liens on the homestead.  Appellant, however, executed and filed a lien in favor of his own attorney, which was superior to any liens that could be acquired by respondent and her attorney.  The district court granted respondent’s motion to compel compliance and ordered appellant to execute mortgage documents necessary to secure respondent’s and her attorney’s interests in the homestead, to provide a statement of his employment and income sources, and to pay $2,000 of respondent’s attorney fees.

Appellant’s attorney failed to appear at the scheduled signing of the mortgage documents and appellant filed a petition for Chapter 7 bankruptcy.  Respondent brought another motion to compel compliance with the judgment and the order.  A few days after the hearing on that motion, the Social Security Administration (SSA) notified appellant that he would soon receive $15,048 in retroactive disability benefits and would receive $1,024 every month thereafter.  Appellant had not disclosed this potential source of income either to respondent or to the district court.

The district court issued another order, transferring title and possession of the homestead from appellant to respondent, directing appellant and the minor child to vacate the homestead with their clothing and personal effects, awarding respondent $598 in permanent spousal maintenance to be paid from appellant’s part of his Air Force pension, and sanctioning appellant’s attorney by ordering him to execute a release of his $10,000 mortgage on the homestead.

Appellant challenged the order in this court, seeking a writ of prohibition on the grounds that his bankruptcy stay precluded both the transfer of title and the spousal maintenance award.  This court concluded that the transfer of title to the homestead was precluded by the bankruptcy stay but that the spousal maintenance award was not affected.  After appellant’s discharge in the bankruptcy proceeding, the SSA notified him that he would be receiving $9,053 in retroactive benefits for his dependent child and would receive $512 monthly thereafter.  Appellant again did not disclose this to respondent or to the district court.

In Timlin v. Timlin, No. C7-99-607 (Minn. App. Oct. 26, 1999), we remanded the spousal maintenance issue for further findings because appellant had disclosed additional income during the pendency of the appeal, affirmed the sanction of appellant’s attorney, and awarded respondent $1,000 in attorney fees on appeal.  Just before the hearing on remand, appellant moved to remove the district court judge who had presided over the case for over three years.  Both the district court judge and the chief judge of the district denied appellant’s motion, finding it was both untimely and without merit.

Following another hearing on the parties’ substantive motions, the district court issued an order (1) requiring appellant to pay respondent $250 in permanent monthly maintenance, (2) requiring the homestead to be sold on July 1, 2001, and net proceeds to be used to meet expenses of the sale, to satisfy the existing mortgage, to compensate respondent for her $40,000 nonmarital interest, and to pay all respondent’s unpaid attorney fees and judicial liens, in that sequence, and giving the balance to respondent, and (3) awarding respondent $3,000 in conduct-based attorney fees and reducing to judgment the unpaid $1,000 in attorney fees awarded to respondent by this court. 

Following entry of the amended judgment, appellant filed a notice of appeal.[1]  He contends that it was an error of law to deny his motion for the removal of the district court judge and that the district court abused its discretion in imposing sanctions and in awarding spousal maintenance.[2]

D E C I S I O N

 

1.         Motion to Remove

 

The denial of a post-trial recusal motion is within a district court’s discretion and will not be reversed absent clear abuse of that discretion.  Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986). 

Minn. R. Civ. P. 63.03 governs post-trial removal of judges.

           

A judge or judicial officer who has presided at a motion or other proceeding may not be removed except upon an affirmative showing of prejudice on the part of the judge or judicial officer.

 

The district court judge here was assigned to the case in November 1996 and had presided over numerous proceedings by the time appellant first sought his removal in January 2000.  Appellant therefore has the burden of showing prejudice on the part of the district court.  He alleges that several of the district court's rulings show prejudice.

Chief among these was the order directing appellant and the parties’ child, then age 16, to vacate the homestead.  Appellant argues that this order put himself and the child on the street with nothing to eat and no means of surviving in a Minnesota winter.  Numerous factors, however, defeat appellant’s argument.  (1) Appellant did not even allege prejudice until almost a year after the order.  (2) Appellant and the child have never vacated the homestead.  (3) The district court’s decision now on appeal provides, in accord with the parties’ original stipulation, that appellant may retain possession of the home until the youngest child finishes high school.  (4) The order that appellant vacate the homestead was the district court’s response to appellant’s having violated the stipulation by giving his attorney a lien on the homestead superior to the liens of respondent and her attorney.  (5) This court’s decision that the bankruptcy stay precluded the transfer of title to the homestead was not evidence of the district court’s prejudice, but rather evidence of the district court’s subsequently acknowledged misunderstanding of bankruptcy law.[3]

            Appellant claims that the district court showed prejudice by not awarding child support, but the record reveals no adverse decision on a motion for child support.  Appellant also contends that awarding any equity in the homestead to respondent shows judicial prejudice.  The record, however, reveals that there may be little or no equity: the homestead was purchased for about $119,000; the mortgage is  $88,791; respondent has a $40,000 nonmarital interest, and respondent’s attorney has a $10,000 lien. Awarding to respondent what equity there may be does not show judicial prejudice.

            Appellant has not made the affirmative showing of prejudice Minn. R. Civ. P. 63.03 requires for the removal of a presiding judge.

2.         Sanctions

            An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2000), “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied  (Minn. Feb. 18, 1999).

            Minn. Stat. § 518.14, subd. 1, gives the court discretion to award attorney fees “against a party who unreasonably contributes to the length or expense of the proceeding.”  The district court provided at least eight findings that support its award of $3,000 in conduct-based attorney fees.

             The district court found that (1) “[s]ince the entry of the Judgment and Decree, [appellant] has failed to comply with Court Orders;” (2) appellant was warned his false allegations of misconduct against respondent and her attorney would not be permitted and was ordered to pay respondent $2,000 in attorney fees but failed to do so; (3) appellant’s counsel was sanctioned for failing to comply with the order and obtaining a security interest in the homestead that would be superior to respondent’s and her attorney’s interests; (4) appellant’s motion to remove the district court judge was “untimely and without merit;” (5) appellant’s refusal to attend a deposition on medical grounds was “one more attempt by [appellant] to subvert the judicial process;” (6) appellant had failed to timely disclose his social security disability benefits, including a $16,000 retroactive payment in January 1999 and $13,000 in dependent benefits for the minor child between April 1999 and March 2000; (7) “[d]ue to [appellant’s] repeated failure to disclose his income and resources and failure to comply with discovery, this [c]ourt cannot conclude that [appellant] has revealed all of his financial resources;” and (8) although the court had previously warned appellant not to make “unfounded allegations of fraudulent conduct” against respondent and her attorney, appellant continued to do so. 

            We conclude that the district court did not abuse its discretion in awarding respondent $3,000 in conduct-based attorney fees.

3.         Spousal Maintenance

            For this court to conclude that the district court abused its broad discretion with respect to an award of spousal maintenance, the district court’s findings of fact must be “against logic and the facts on [the] record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).  Appellant challenges the district court’s award of $250 monthly in permanent spousal maintenance.

            The district court found that appellant now receives $1,048 monthly in social security benefits, $620 in military pension income, and $524 in dependent benefits for the minor child (a total of $2,192 monthly), and that he has received about $29,000 in retroactive social security benefits since 1999.  The district court also found that appellant is physically capable of employment and that his earning capacity is $42,640 annually based on his most recent employment.  Appellant’s expenses for himself and the minor child were $2,296.

The district court found that respondent’s monthly income is $620, her half of appellant’s military pension.  Respondent, an epileptic, is unable to drive; she lives with her parents, for whom she provides care.  Respondent’s monthly expenses were found to be $1,494.  The district court also found that “[respondent’s] standard of living has been reduced substantially due to [appellant’s] conduct throughout these proceedings” and that appellant’s expenses will decrease when the child completes high school.  These findings are not “against logic and the facts on the record” and they support the maintenance award of $250 monthly.

            Nonetheless, appellant argues that respondent should be able to obtain Social Security Disability benefits or SSI benefits.  But he provides no support for the view that a court must consider a party’s potential to receive benefits as a factor in awarding maintenance.  Moreover, Minn. Stat. § 518.552, subd. 4 (2000), provides that appellant may seek to modify maintenance if respondent’s circumstances change.[4]  We conclude that the district court did not abuse its discretion in awarding respondent $250 in monthly maintenance.

            There was no error of law in the denial of appellant’s motion to remove the district court judge and no abuse of discretion in the sanctions or in the spousal maintenance award.

            Affirmed.



[1] Respondent also filed a notice of review raising three issues: (1) the district court abused its discretion in denying her motion for an order requiring the immediate sale of the homestead; (2) the district court abused its discretion in setting the amount of spousal maintenance; and (3) she is entitled to attorney fees on appeal. But she argues none of these issues in her brief and simply asks this court to “affirm this case on all issues.” Therefore, she has waived issues (1) and (2).  See State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997) (“a reviewing court will deem waived those arguments made in a postconviction petition but not raised in a party’s appellate brief”), review denied (Minn. June 11, 1997).  Respondent later filed a separate motion for attorney fees on appeal in accord with Minn. R. Civ. App. P. 139.06, subd. 1.  This motion will be addressed by separate order.

 

[2] After oral argument, appellant’s counsel filed with this court a “Motion for Extraordinary Relief” alleging that representations and actions of respondent’s counsel during oral argument precluded a fair review by this panel and asking that a new panel be designated for immediate rehearing or in the alternative that sanctions be imposed on respondent’s counsel.  Minn. R. Civ. App. P. 140.01 provides that “[n]o petition for rehearing shall be allowed in the court of Appeals.”  Accordingly, appellant’s motion is denied.  Respondent moves (1) to have stricken from the appendix to appellant’s motion for extraordinary relief those pages that are not part of the record on appeal, (2) for an order estopping appellant from all further motions not in compliance with the Minnesota Rules of Civil Appellate Procedure and the Minnesota statutes, and (3) for attorney fees incurred in responding to appellant’s motion.  We grant the motion to strike pursuant to Minn. R. Civ. App. P. 110.01; we deny as redundant the motion for an order, and we will address by separate order the motion for attorney fees.

 

[3] Far from finding the district court prejudiced, this court noted that “[t]he evidence demonstrates that [appellant’s] attorney pointedly disregarded the judgment and the court’s November 1998 order” and referred to “the district court’s careful and thoughtful actions in handling this difficult case.”  Timlin, No. C7-99-607 at 8.

 

[4] Both on appeal and before the district court, appellant has repeatedly argued that respondent receives support in the form of gifts from her parents.  However, as the district court found, respondent does not have any vested or enforceable right to receive money from her parents and no income can be attributed to her from  that source.