This opinion will be unpublished and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:

Jerome J. Jarosch, petitioner,





Peggy Ann Jarosch,




Filed July 30, 2002

Reversed and remanded
Foley, Judge


Ramsey County District Court

File No. F398945



Ronald B. Sieloff, Sieloff and Associates, P.A., Yankee Square Office III, 3460 Washington Drive, Suite 214, Eagan, MN  55122 (for appellant)


Stephen M. Lindlof, 2580 White Bear Avenue, Suite 103, St. Paul, MN  55109 (for respondent)


            Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            On appeal after remand, appellant Jerome J. Jarosch argues that the district court erred or abused its discretion by (1) awarding respondent Peggy Ann Jarosch attorney fees incurred during the prior appeal; (2) calculating his nonmarital interest in the homestead and ordering him to pay respondent an amount greater than that to which the parties agreed on remand; and (3) increasing, rather than terminating, appellant’s maintenance obligation.  Because the district court miscalculated the nonmarital interest in the homestead, determined the amount of maintenance by using an incorrect income figure for appellant, and erred by awarding respondent fees and costs incurred in connection with the prior appeal, we reverse and remand.


            In Jarosch v. Jarosch, No. C4-00-1317, 2001 WL 506582 (Minn. App. May 15, 2001) (Jarosch I), this court reversed and remanded on a number of issues, including spousal maintenance and calculation of the nonmarital interest in the homestead.  A district court may not vary the mandate of an appellate court or decide issues beyond those remanded.  Harry N. Ray, Ltd. v. First Nat’l Bank of Pine City, 410 N.W.2d 850, 856 (Minn. App. 1987).

            1.         Spousal Maintenance

            Appellant argues that the district court abused its discretion by increasing his spousal maintenance obligation by 354%, from $366 per month to $1,296.80.  Appellant makes several claims, including that he should not be penalized for respondent’s failure to provide evidence regarding her current income and expenses.  The critical issue, however, involves the district court’s determination of the appropriate amount of maintenance, which requires an examination of appellant’s income and ability to pay maintenance.

            On remand, the district court determined that respondent has a reasonable need for maintenance of $1,296 per month, considering her reasonable monthly expenses of $1,981 and her net monthly income of $684.20.  The court then determined that because appellant’s net monthly income is $3,696.71 and because his reasonable monthly expenses are $2,195, he has excess income of $1,474.71.  The court therefore concluded that appellant has the ability to pay spousal maintenance in the amount of $1,296.

            But the district court used a net income figure of $3,696.71 for appellant, a figure that was expressly rejected by this court in Jarosch I,rather than the $2,582.42 figure that this court affirmed in Jarosch I as the correct income figure.  Jarosch I, 2001 WL 506582, at *4 (concluding that district court “did not err in using [appellant’s] current pay stubs [from 1999] rather than his [1998] tax return” and determining that his net monthly income was $2,582.42).  Thus, the district court on remand abused its discretion in determining that appellant has the ability to pay $1,296.80 in maintenance because he does not, as the district court found, have $1,474.71 in excess income.  Rather, when the proper net income figure of $2,582.42 is considered, appellant’s excess income totals only $387.42, given his reasonable monthly expenses of $2,195.  We therefore reverse the district court’s determination of the amount of spousal maintenance and remand with directions to set maintenance at an equitable amount, considering respondent’s income and needs and appellant’s actual ability to pay. 

            2.         Nonmarital Interest in Homestead

            Appellant challenges the district court’s determination regarding the value of his nonmarital share of the homestead.  He insists that because the parties agreed on remand that the amount due to respondent out of the proceeds from the sale of the homestead was $4,871.30, the district court erred in calculating this amount to be $6,080.49.

            Examination of the district court’s calculations reveals the source of the disparity between the two figures.  The district court made a mathematical error when it failed to subtract the amount of repairs and principal loan reduction, $2,956.46, from the selling price of the homestead after subtracting the closing costs ($135,000 minus $10,237.26).  Thus, the net value of the property should equal $121,806.28, rather than $124,762.74, which was the figure reached by the district court.  Had the court properly subtracted the amount of repairs and mortgage principal reduction paid to appellant, it ultimately would have reached the figure calculated by respondent, $4,871.30.  Because the court erred in its calculations, we reverse on this issue and remand with directions to modify the judgment accordingly.[1]

            3.         Attorney Fees

            Finally, appellant challenges the district court’s award of fees and costs to respondent in the total amount of $4,558.75.  The district court awarded respondent attorney fees of $4,256.25, which represents 60% of the total fees incurred “for the time of appeal from July 27, 2000 to February 14, 2001.”  The district court also awarded respondent $500 for the cost of the bond, $250 for the cost of the appellate filing fee, $20 for certified copies, and $1,235 in transcript costs, for a total cost and attorney fee award of $4,558.75.

            As noted by appellant, this court’s decision in Jarosch I did not discuss attorney fees or otherwise remand the issue of attorney fees to the district court.  Thus, such an award was beyond the scope of this court’s decision in Jarosch I, which remanded the case back to the district court.

            Perhaps more troubling, however, is the fact that none of these fees was incurred for services performed before the district court.  Rather, the amount awarded represents 60% of the attorney fees incurred by respondent in connection with her appeal in Jarosch I.  This was error.

            A district court generally lacks authority to award attorney fees for services performed before the appellate courts, and a “claim for attorney fees on appeal is properly addressed to the appellate courts.”  Johnson v. City of Shorewood, 531 N.W.2d 509, 511 (Minn. App. 1995), review denied (Minn. July 7, 1995).  In addition, the request for fees “must be in the form of a motion and include sufficient documentation to enable the appellate court to determine the appropriate amount of fees.”  Minn. R. Civ. App. P. 139.06, subd. 1; In re Marriage of Crockarell, 631 N.W.2d 829, 837 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).  We therefore conclude that the district court erred in awarding attorney fees for services incurred in connection with respondent’s appeal in Jarosch I.

            Appellant also challenges the district court’s award of appellate court costs to respondent.  Appellate costs are available only if a party files a notice for the taxation of costs with the appellate court within 15 days of a successful appeal.  Minn. R. Civ. App. P. 139.03.  When a party fails to timely file such a notice, it waives its right to costs for that appeal.  Id.  We further conclude that the district court erred in awarding costs to respondent in connection with her appeal in Jarosch I.

            Reversed and remanded.


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

[1]  Appellant also argues that because the proceeds of the sale of the homestead have already been divided by agreement of the parties and confirmed by a March 9, 2000, order by the district court, then there is no res remaining to be distributed.  However, by statute, a court may “order a partial distribution of marital assets * * * upon the request of both parties, provided that the court shall fully protect the interests of the other party.”  Minn. Stat. § 518.58, subd. 3(b) (2000).  Merely because the proceeds of the sale have been distributed for attorney fees and adjustments for the overpayment of spousal maintenance does not render respondent’s ongoing claim to a portion of those proceeds moot.