This opinion will be unpublished and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:

Cheryl J. Marsolais, petitioner,





Richard G. Marsolais,



Filed April 30, 2002

Affirmed in part, reversed in part, and remanded; motions granted and denied

Huspeni, Judge*



Anoka County District Court

File No. F6893511


Phillip Gainsley, Suite 527, 701 Fourth Avenue South, Minneapolis, MN 55415-1810 (for respondent)


Jeffrey P. Hicken, Hicken, Scott & Howard, P.A., 300 Anoka Office Center, 2150 Third Avenue, Anoka, MN 55303 (for appellant)



            Considered and decided by Shumaker, Presiding Judge, Parker, Judge,* and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


On appeal from an amended judgment addressing the disposition of the marital homestead, appellant Richard G. Marsolais alleges the district court (1) should not have considered his expectancy interest in an inheritance in dividing the parties’ interest in the homestead; (2) overstated his interest in the property and, therefore, overstated the portion of that interest appellant should pay respondent Cheryl J. Marsolais; (3) should have granted appellant’s request for a continuance; and (4) abused its discretion in awarding respondent attorney fees.  We affirm in part, reverse in part, and remand.



            When the parties’ marriage was dissolved in March 1990, they stipulated that disposition of their homestead would be reserved.  Prior to the dissolution, they executed a mortgage in favor of appellant’s mother and brother.  The parties defaulted on the mortgage, and appellant’s mother and brother started foreclosure proceedings against both appellant and respondent in 1996.  In 1997, appellant’s mother died intestate leaving only two heirs, appellant and his brother.

            In May 1998, the district court, in an amended decree, awarded respondent all of the parties’ marital interest and one-half of appellant’s nonmarital interest in the homestead.  In October 2000, the court set out procedures for appraisal of the homestead, and ordered appellant to remit to respondent 25% of its value.  In October 2001, the district court entered a judgment, under the terms of which appellant was to pay to respondent 25% of the homestead’s appraised value of $250,000.  The court also awarded respondent $5,000 in attorney fees and ruled that appellant could not set off any amount of the homestead payment for waste or for his tax contributions.  This appeal resulted.




Appellant first contends that the district court erred in considering his expectancy interest in an inheritance when dividing the parties’ interest in the homestead.  This contention, however, addresses the May 1998 amended judgment.  In December 2001, this court granted respondent’s motion to dismiss that part of the appeal challenging the May 1998 amended judgment.


Appellant next contends that the district court abused its discretion in determining that respondent was entitled to a 25% interest in the former homestead.  Appellant argues that inasmuch as respondent was entitled to only half of appellant’s nonmarital interest, and appellant had only a 25% interest in the former homestead, the district court actually awarded all of appellant’s nonmarital interest to respondent.  Appellant’s argument is persuasive.

Regarding the division of both marital and nonmarital property in marriage dissolutions, a district court “has broad discretion * * * and will be reversed only for a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 296 (Minn. App. 1998) (citation omitted), review denied (Minn. Feb. 18, 1999).  For this court to conclude the district court abused its discretion, 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).

            In the May 1998 amended decree, the district court determined that the property was subject to a mortgage in favor of appellant’s mother, Roma Marsolais, and brother, James Marsolais.  The district court also noted that in 1996, Roma and James commenced a foreclosure action against both appellant and respondent, and that while respondent quitclaimed her portion of the fee title, appellant never “interposed an answer in the mortgage foreclosure proceeding and was subsequently declared in default * * * .”  Thus, at the time of the December 1998 amended decree, appellant’s only nonmarital interest in the former homestead was the interest he received when his mother passed away.  Immediately before Roma’s death, she and James each had a 50% interest in the property.  Upon Roma’s death, her 50% interest became an asset in her estate.  She had two heirs, James and appellant.  Thus, appellant received as his share of Roma’s estate a 25% nonmarital interest in the property.  James received the other one-half of Roma’s interest, thus making him a 75% owner of the property (his original 50% resulting from his equal ownership with his mother during her lifetime and his 25% ownership from his mother’s estate). 

Under the terms of the December 1998 amended decree, respondent was, indeed, entitled to one-half of appellant’s nonmarital interest in the former homestead property.  But one-half of a 25% interest is 12.5%.  The district court, in awarding respondent 25% of the value of the former homestead, actually awarded 100% of appellant’s nonmarital interest in that property.  Such an award would be in violation of Minn. Stat. § 518.58 (2000), which permits only an award of up to one-half of one spouse’s nonmarital property interest to the other spouse.  We reverse the award to respondent of 25% of the value of the former homestead, and remand for entry of an award to her of 12.5% of that value.


Whether to grant a continuance is “within the discretion of the trial court and its ruling will not be reversed absent a showing of clear abuse of discretion.”  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977) (citation omitted). 

Appellant contends the district court abused its discretion by not granting him a continuance, because the interests of fairness dictate that respondent’s judgment should be reduced by appellant’s contributions only after the court reaches a final figure for respondent’s share.  There is no evidence, however, that appellant ever moved for a continuance.  He may have asked for one at the August 28, 2001 hearing, but there is no transcript of that hearing available for review on appeal.  Thus, appellant has failed to meet his burden of showing an abuse of discretion by the district court in failing to grant a continuance.


“On review, this court will not reverse a [district] court’s award or denial of attorney fees absent an abuse of discretion.”  Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987) (citation omitted). 

            Appellant contends that the district court abused its discretion by awarding respondent attorney fees when it had no information on appellant’s finances and when, if appellant prevails on appeal, respondent herself will have contributed to litigation expenses.  We disagree.

The district court awarded attorney fees after a hearing in which the district court (referring to a May 1998 hearing in which appellant’s ability to pay support was being questioned) noted that appellant had failed to produce evidence of his earnings and wealth, and that if he had produced this information it would have been “against his interests.”  It is clear the award of attorney fees to respondent related not to the homestead litigation, but to appellant’s noncompliance and failure to support.  Thus, the district court did not abuse its discretion.


Respondent moved to strike portions of appellant’s brief and appendix dealing with the affidavit of Lawrence P. Marofsky, dated February 5, 2001.  Respondent claimed the affidavit was never properly part of the record except as part of a defective and unauthorized motion for reconsideration.  We agree, and grant respondent’s motion to strike this affidavit.  See Minn. R. Civ. App. P. 110.01 (defining record on appeal as documents filed in district court).

Respondent also moved for need and conduct-based attorney fees relying on Minn. Stat. § 518.14 (2000).  We find appellant’s appeal was meritorious and deny respondent’s motion for attorney fees on appeal.

            Affirmed in part, reversed in part, and remanded; motions granted and denied.


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