This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







In re:

Sherri Marie Serino,

n/k/a Sherri Marie Nelson, petitioner,





David Francis Serino,




Filed January 14, 2003

Affirmed in part and reversed in part
Klaphake, Judge


Ramsey County District Court

File No. F297313



Roger A. Christianson, James R. Brinegar, 101 East Fifth Street, Suite 2314, St. Paul, MN  55101 (for respondent)


Michael Ormond, Ormond Law Office, 529 S. 7th Street, Suite 300, Minneapolis, MN  55415-1804; and


Thomas W. Tuft, Valerie A.D. Arnold, Thomas Tuft Law Offices, 1590 White Bear Avenue, St. Paul, MN  55106 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Minge, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            This matter makes its third appearance before this court.  See Serino v. Serino, C9-99-1791, 2000 WL 821603 (Minn. App. June 27, 2000) (Serino I); Serino v. Serino, C6-01-809, 2001 WL 1609051 (Minn. App. Dec. 18, 2001) (Serino II).  In this appeal after remand, appellant David Serino argues that the district court exceeded its mandate on remand by addressing child support de novo and abused its discretion by refusing to enter judgment against respondent Sherrie Serino for certain mortgage payments or to hold her in contempt for failing to make those payments.  Appellant also asserts that the district court had no jurisdiction to award appellate attorney fees and thus abused its discretion by ordering payment of $3,000 in attorney fees.

            Because the district court’s review of child support was consistent with this court’s previous remand, we affirm.  Because the division of marital property became final when the district court’s decision on remand was not appealed, the district court did not have jurisdiction to re-open the property settlement and thus did not abuse its discretion by failing to do so or to hold respondent in contempt; we therefore also affirm the district court’s decision on the latter issue.

            Because the district court abused its discretion by awarding appellate attorney fees, we reverse the award of fees.


            1.         Child Support

            On remand, the district court’s duty is to “execute the mandate of the remanding court strictly according to its terms.”  Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988) (citation omitted).  Where the remanding court does not supply specific directions, the district court has discretion to handle the matter in a manner not inconsistent with the remand order.  Id

            In Serino II, this court remanded the child support issue, in light of the decision in Rogers v. Rogers, 622 N.W.2d 813 (Minn. 2001), which was issued by the supreme court two days after the district court issued its findings regarding child support.  Specifically, this court stated:

We remand to allow the district court to reconsider the propriety of applying the Hortis-Valento formula, and, if it applies the formula, to make the requisite findings under Rogers.  


Serino II at *2. 

            In making the child support award appealed in Serino II, the district court analyzed the amount of time each parent provided physical care for the child and determined the relative incomes of the party.  The child support award, which obligated respondent to pay appellant $178 a month based on the Hortis-Valento formula, was premised on the understanding that the Hortis-Valento formula was a form of guidelines support.

            Two days later, on March 8, 2001, the supreme court issued Rogers, requiring application of Hortis-Valento to be supported by an analysis of factors that permit deviation from the guidelines.  Rogers, 622 N.W.2d at 821.   Thus, in Serino II, this courtremanded the support issue to the district court to determine whether a deviation from the guidelines was appropriate and to justify such a deviation using the statutory factors. 

            Because the previous analysis used by the district court was premised on a different understanding of the law, the court in this latest remand necessarily had to engage in a de novo consideration of child support.  The district court quite properly considered the six statutory factors of Minn. Stat. § 518.551, subd. 5(c) (2002) and concluded that a deviation from the guidelines was not justified. 

            The district court enjoys considerable discretion in matters involving child support.  Rutten v. Rutten 347 N.W.2d 47, 50 (Minn. 1984).  Because its findings are reasonably supported by the record and are within the mandate on remand, we affirm the child support award.

            2.         Property Settlement

            Property settlements in dissolution actions are final and

may be revoked or modified only where the court finds the existence of conditions that justify reopening a judgment under the laws of this state, including motions under section 518.145, subdivision 2. 


Minn. Stat. § 518.64, subd. 2(e) (2002).  Minn. Stat. § 518.145, subd. 2 (2002), permits reopening of a judgment for reason of mistake, inadvertence, surprise, excusable neglect, fraud, newly discovered evidence, or where the judgment is void, reversed, or vacated. 

            Appellant argues that because Conclusion of Law, paragraph 19, of the August 19, 1999 judgment was never formally appealed or amended, it continues in effect and must be enforced.  In Serino I, however, this court directed the district court on remand to “recalculate the property distribution in light of appellant’s nonmarital interest” in his pension asset.  Serino I at *2.  This court went on to state:

The [district] court should ensure that its findings regarding the apportionment of property awarded to each party are accurate and may modify those findings accordingly.  See Minn. Stat. § 518.58, subd. 1 (1998) (court shall make just and equitable division of marital property, after making findings regarding division of property).


Id.  This court also affirmed the district court’s denial, at that point, of appellant’s request that respondent reimburse him for the mortgage payments.  Id. at *3.

            Although property divisions are final, no judgment is final until the period for appeal has passed.  “The reconsideration of a case on remand (and a subsequent appeal) is a continuation of the original proceeding.”  Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720 (Minn. 1987) (citation omitted).  The judgment here was appealed; the matter was remanded with specific instructions to the district court.  Thus, the district court had continuing jurisdiction to adjust the judgment in accordance with the instructions of the appellate court.  See id.  The instruction here was specific: the district court was ordered to recalculate the property distribution to ensure that it was fair and equitable in light of the award to appellant of substantial non-marital property. 

            On remand, the district court remained within the parameters of the remand.  The division of marital property was re-examined and readjusted.  The district court made specific reference to the post-decree judgment payments and concluded that in light of the substantial marital property, a division that included excusing respondent from reimbursing appellant was fair and equitable.

            The reconsideration of a case on remand and a subsequent appeal are considered to be a continuation of the original proceeding, but there are well-delineated limits.  “Issues determined in a first appeal will not be relitigated in the trial court nor re-examined in a second appeal; however, issues not determined in the first appeal may, on remand, be litigated.”  Id. (citation omitted).  Here, when appellant attempted to raise the reimbursement issue in his second appeal, this court concluded that the issue was beyond the mandate on remand, which only permitted the district court to make a fair and equitable distribution of marital property.  Serino II at *3.  Thus, by not requesting review of that portion of the decision in Serino I, appellant waived the right to raise the reimbursement issue and it became final.

            Appellant further argues that the court abused its discretion by failing to hold respondent in contempt for nonpayment of the mortgage obligation.  Because the district court, on remand from Serino I,revised its judgment to exclude the requirement that respondent reimburse appellant, there is no basis for contempt.  In dissolution actions, civil contempt proceedings are tailored to secure future compliance with a court order in a manner that vindicates the rights of the other party.  Tatro v. Tatro, 390 N.W.2d 461, 464 (Minn. App. 1986).  Because of the revision of the property award, there is no future right here to vindicate.

            3.         Attorney Fees

            A party seeking attorney fees for an appeal should apply to the appellate court for an award.  See Minn. R. Civ. App. P. 139.06 1998 advisory comm. cmt.; Johnson v. City of Shorewood, 531 N.W.2d 509, 511 (Minn. App. 1995), review denied (Minn. July 7, 1995).  The party seeking fees must make a motion in accordance with rule 127.  Minn. R. Civ. App. P. 139.06, subd. 1.  The appellate court “may grant on its own motion an award of reasonable attorneys’ fees to any party.”  Id.  The court may choose to remand the issue to the trial court for determination of the fees * * * or may refuse such a suggestion, and make the determination itself.”  Minn. R. Civ. App. P. 139.06 1998 advisory comm. cmt. (citations omitted). 

            The district court specified that the award here was for attorney fees incurred for the appeal in Serino II.  Without instruction from the appellate court, this was an improper exercise of the district court’s discretion.  See Johnson v. Johnson, 627 N.W.2d 359, 364-65 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001).  We therefore reverse the award of attorney fees. 

            Affirmed in part and reversed in part.