This opinion will be unpublished and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:

Robert C. Lowes, petitioner,





Victoria S. Lowes,



Filed August 14, 2001

Toussaint, Chief Judge


Hennepin County District Court

File No. DW717547



Raymond M. Lazar, Judy Sally Engel, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN  55402-3397 (for appellant)



Judith L. Oakes, J. Oakes & Associates, 2589C Hamline Avenue North, Roseville, MN  55113 (for respondent)


            Considered and decided by Toussaint, Chief Judge, Halbrooks, Judge, and Lindberg, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            After appellant Robert D. Lowes ceased paying spousal maintenance, respondent Victoria S. Lowes moved for arrearages she claimed were due under the terms of the parties’ stipulated dissolution judgment.  The district court examined the terms of the parties’ 1992 stipulation and determined that it required appellant to pay spousal maintenance as long as his “cash compensation” exceeded $400,000 per year.  The district court further concluded that because a $2.1 million lump sum payment that appellant received in July 1999 “represented” two years of salary, it qualified as cash compensation for 1999, 2000, and 2001.  The district court thus ordered appellant to pay respondent $109,505 in past-due maintenance.

            Appellant thereafter moved for “amended findings or alternatively for a new trial.”  Respondent opposed the motion, arguing that it was an improper motion for reconsideration, and sought attorney fees under Minn. Stat. § 518.14, subd. 1 (2000).  The district court issued a second order denying appellant’s motion in its entirety and awarding respondent $1,500 in conduct-based attorney fees.

            Because the stipulation unambiguously requires appellant to pay spousal maintenance when his cash compensation exceeds $400,000 per year and because the district court did not err in finding that the $2.1 million falls within the definition of cash compensation, we affirm.  We also affirm the award of $1,500 in conduct-based attorney fees as within the district court’s discretion.



            The interpretation of a stipulation incorporated into a dissolution decree is a question of law, which this court reviews de novo.  VanderLeest v. VanderLeest, 352 N.W.2d 54, 56 (Minn. App. 1984).

            At the time of the parties’ divorce in 1992, appellant was a corporate executive, earning in excess of $400,000 per year.  Under the terms of the stipulation, appellant agreed to pay respondent $9,800 per month in spousal maintenance, to be adjusted biennially according to changes in the cost of living, until either party’s death, respondent’s remarriage, appellant’s “reaching 62 years of age if he has then fully retired,” or appellant’s “full retirement after he reaches 62 years of age.”  The parties further agreed:

If [appellant] knows definitely that his cash compensation will be less than $400,000 for a given calendar year, then * * * the amount of the monthly spousal maintenance payment shall be reduced by fifty cents ($0.50) for each dollar ($1.00) by which [appellant’s] cash compensation falls short of $400,000.


“Cash compensation” was defined by the parties as the sum of

(1) [Appellant’s] gross annual salary (exclusive of bonuses) as of December 31 of the calendar year in question; (2) the amount of [appellant’s] company car allowance, if any, as of December 31 of the calendar year in question; and (3) the gross amount of any annual cash bonus actually paid to [appellant] by his employer as current compensation for the calendar year in question.


            In June 1999, appellant claims that he was forced to resign from his position with Tricon Global Restaurants, Inc., after a new chief executive officer was hired.  Under the terms of his severance agreement with Tricon, appellant received various amounts, which respondent claimed totaled over $5 million, in benefits and compensation.  A portion of that sum, $2.1 million, was identified as follows in his severance agreement:

You will continue to receive a salary at your current rate of pay ($600,000 per annum), * * * up to [July 1, 1999,] your Termination Date.  After your Termination Date, you will no longer be entitled to any payments in respect of salary or incentive, except as otherwise described in this letter.


You will receive a lump sum payment within thirty (30) days following your Termination Date equal to $2.1 million which represents two years of salary and incentive (at your target).


This characterization of the $2.1 million payment was consistent with Tricon’s 1997 offer of employment to appellant, in which Tricon agreed to provide him with 24 months of “base salary continuation and target incentive” pay upon his termination from employment.

            Appellant argues that the district court erred in determining that the $2.1 million payment constituted “cash compensation” as that term is defined by the stipulated judgment.  We disagree.  The parties’ stipulation is unambiguous, and its meaning can be determined from the actual words used by the parties.  VanderLeest, 352 N.W.2d at 57.  “Cash compensation” was defined as the sum of gross annual “salary,” the amount of any company car allowance, and the gross amount of any annual cash bonus.  Given the undisputed evidence regarding the character of the $2.1 million payment as representing two years of “salary,” the district court did not err in determining that this payment fell within the plain meaning of “cash compensation” as that term is defined by the parties’ stipulation.

            Appellant further argues that even if the district court did not err in considering this lump-sum payment as “salary” or “cash compensation,” the district court erred by prorating that payment over a two-year period, thus obligating him to pay spousal maintenance for the years 1999, 2000, and 2001.  Appellant insists that respondent’s right to receive maintenance under the stipulation is based on his “gross annual salary * * * as of December 31 of the calendar year in question” and that this language leaves no room to interpret the $2.1 million payment as having been received in any year other than 1999.

            In reaching its decision, the district court examined the stipulation to ascertain the parties’ intent:

            The Decree states that Respondent will forego the opportunity to receive maintenance based on all types of in-kind income, all types of cash income that does not constitute “compensation,” such as dividends, interest, etc., and all types of cash compensation other than the trio listed therein.  * * *  In return, Respondent received the right to have her maintenance tied into the salary and bonuses of a highly paid senior corporate officer until he retired at or after age 62, but with a limitation that she receive no more than $9,800 per month as adjusted by COLA’s.  * * *  [T]here is nothing in the Decree to suggest that Respondent gave up so many normal sources for spousal maintenance, such as interest and dividends, and at the same time willingly assumed the risk that [appellant’s] employer would compute a number “representing” two years of salary, pay it all at one time, and thus substantially reduce or even eliminate her ability to obtain maintenance in any year but the year in which the lump sum payment was made.  That was not the bargain.  Rather, the parties’ bargain required [appellant] to pay maintenance commensurate with a senior executive salary, and during all of 2000 and the first few months of 2001, [he] will continue to enjoy a senior executive level salary.


We agree with the district court’s reading of the parties’ stipulation.  Any attempt to restrict this $2.1 million payment to the year in which it was actually paid would frustrate the intent of the parties and allow appellant to avoid his maintenance obligation simply because he was paid in a lump sum, rather than over a period of two years.

            We therefore affirm the district court’s determination that, under the terms of the parties’ stipulation, this $2.1 million payment constitutes cash compensation for the years 1999, 2000, and 2001.


            Appellant challenges the district court’s award of $1,500 in conduct-based attorney fees under Minn. Stat. § 518.14, subd. 1 (2000).  Respondent requested these fees after appellant moved for amended findings or a new trial.  In making the award, the district court determined that appellant

unreasonably contributed to the length and expense of this proceeding by attempting to impeach his own witness in a post-trial context, and by attempting to interject new facts and arguments and/or expand the record in the context of a motion for amended findings or a motion for reconsideration.  If the Court erred, that error must be determined based on the record and arguments advanced at the initial October 2000 hearing.  Respondent should not have been forced to expend attorney’s fees to fend off [appellant’s] attempt to expand the record and interject new arguments.  That was unreasonable and certainly increased the length and cost for all concerned.


In its previous order, the district court denied both parties’ motions for fees because neither party had shown that he or she needed fees or that the other party had unreasonably contributed to the length and expense of the proceeding.

            Appellant argues that under Minn. Stat. § 518.14, subd. 1, a need-based fee award is a prerequisite to an award of “additional,” conduct-based fees.  This issue “was not argued to, or addressed by, the district court and we do not address it here.”  Geske v. Marcolina, 624 N.W.2d 813, 818 n. 5 (Minn. App. 2001); see also Mize v. Kendall, 621 N.W.2d 804, 807 n. 3 (Minn. App. 2001), review denied (Minn. Mar. 27, 2001).

            Appellant further argues that he did not act unreasonably by bringing his motion for amended findings or for a new trial, that he did not attempt to introduce new evidence or arguments, and that his motion had a legitimate basis in the law.  A showing of bad faith is not required to support an award of conduct-based fees, but the complained of conduct must have occurred during litigation.  Geske, 624 N.W.2d at 818-19.  The district court here awarded fees because it believed appellant’s motion unnecessarily contributed to the length and cost of these proceedings.  After reviewing the record, we cannot conclude that the district court abused its discretion in deciding to award conduct-based attorney fees.  See Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991) (award of attorney fees is discretionary and will not be disturbed absent abuse of that discretion).

            We therefore affirm the district court’s award of attorney fees.


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.