This opinion will be unpublished and

may not be cited except as provided by

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







Gerianne Johnson,





Garold H. Winscher,



XYZ Corporation, et al.,




Filed April 8, 2003

Klaphake, Judge


Morrison County District Court

File No. C5001349



Gerald W. Von Korff, Pamela A. Steckman, Rinke-Noonan, 700 Wells Fargo Center, P.O. Box 1497, St. Cloud, MN  56302-1497 (for respondent)


Russell R. Cherne, Thomas W. Lies, Pennington & Lies, P.A., 1111 First Street North, P.O. Box 1756, St. Cloud, MN  56302-1756 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.


U N P U B L I S H E D   O P I N I O N


            Respondent Gerianne Johnson brought this partition action against appellant Garold Winscher and other unnamed defendants,[1] seeking division of real property known by the parties as the Gotvald property.  In 1997, while the parties were living together, Winscher conveyed one-half interest in the Gotvald property to Johnson by quit claim deed, making them joint tenants.

            Following a trial, the district court issued findings regarding each party’s contributions to the property in the form of cash or labor.  The court further found that the sale of the property would cause significant hardship to both parties and that a division of the property was a reasonable alternative.  The court ordered the property divided, with Johnson to receive the 20 acres that included the buildings and Winscher to receive the remaining 20 acres and an equalizing payment, or “owelty,” from Johnson.  Winscher appeals.

            Because the district court’s findings are not clearly erroneous and are reasonably supported by the evidence, and because the court properly exercised its equitable discretion in partitioning the property rather than ordering it sold, we affirm.



            Winscher argues that he conveyed one-half interest in the Gotvald property to Johnson based on the parties’ unwritten promise to be together for the rest of their lives, which is prohibited by the anti-palimony statutes, Minn. Stat. §§ 513.075, .076 (2002).  He insists that the mere fact that Johnson’s name is on the deed does not necessarily mean that she is entitled to half the value of the property.

            In In re Estate of Palmen, 588 N.W.2d 493 (Minn. 1999), the supreme court held that the jurisdictional bar imposed by the anti-palimony statutes applies “only when the ‘sole consideration for a contract between cohabiting parties is their contemplation of sexual relations * * * out of wedlock.’”  Id. at 495 (emphasis in original) (quoting In re Estate of Eriksen, 337 N.W.2d 671, 674 (Minn. 1983)).  Thus, the anti-palimony statutes do not prohibit cohabiting parties from owning property together or from recovering their contributions to property under traditional equitable or legal principles.  See, e.g., Palmen, 588 N.W.2d at 494-95 (allowing unjust enrichment claim to recover for cash expended, goods and services provided, and improvements made to log cabin retirement home, where parties agreed to share in labor and expense and where their contributions were independent of their living together in contemplation of sexual relations); Eriksen, 337 N.W.2d at 674 (allowing unjust enrichment claim based on parties’ agreement to join in purchase of home and where each party contributed equally to purchase and maintenance of home).  We therefore conclude that the anti-palimony statutes do not preclude or prohibit this partition action, which is based on each party’s contributions to the Gotvald property under a joint venture type of agreement.


            Winscher argues that the partition ordered by the district court was improper and that the property should be sold.  He criticizes the court’s decision to split the property and award Johnson the half with the buildings while he receives the other half and an owelty.

            Partition actions are statutory, but a district court is guided by principles of equity in its decisions.  Minn. Stat. §§ 558.01-.32 (2002); Swogger v. Taylor, 243 Minn. 458, 464-65, 68 N.W.2d 376, 382 (1955).  On appeal, a district court’s findings of fact will not be set aside unless clearly erroneous.  Beebout v. Beebout, 447 N.W.2d 465, 467 (Minn. App. 1989).

            Here, both parties testified regarding their contributions to the Gotvald property in the form of cash or labor.  The district court found that Johnson proved, through testimony and exhibits, total contributions of $70,805.  The court further found that Winscher failed to provide credible evidence of the exact amount of his contributions and adopted the figure offered by Johnson, $42,932.  The findings regarding these amounts are reasonably supported by the evidence and are not clearly erroneous.  See Minn. R. Civ. P. 52.01 (“Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”).

            Although Winscher requested that the property be sold and the proceeds divided between the parties, the law favors partition in kind rather than a sale.  Minn. Stat. §§ 558.01, .14 (2002).  The party requesting a sale has the burden of proving that partition in kind cannot be made without great prejudice to the owners.  Swogger, 243 Minn. at 467, 68 N.W.2d at 384.  Here, the district court found that an order “requiring the sale of this property would cause significant hardship to both parties.”  The court explained that Johnson “houses her horses there” and “would have difficulty relocating,” and that Winscher “purchased the property * * * presumably because that is a location where he would like to reside.”  Again, we cannot conclude that the district court abused its discretion in ordering the property divided rather than sold.

            The court found that the property is “divisible by awarding equal shares of 20 acres with [Johnson] receiving the 20 acres with the home and [Winscher] receiving the remaining 20 acres.”  The court valued each parcel at $30,000, based on the statement in the appraisal that listed the value of the site at $60,000.  Post-trial, the court rejected Winscher’s challenge to the court’s valuation and indicated that its determination was “based on the limited evidence provided by the parties,” which included the appraisal of the property.

            Cases that allow partitions in kind generally involve property that can be divided into parcels of relatively equal size, value, and type.  See, e.g., Kauffman v. Eckhardt, 195 Minn. 569, 570, 263 N.W. 610, 610 (1935) (allowing partition of two separate, roughly equal farms with building sites on both); Pigeon River Lumber Co. v. McDougall, 169 Minn. 85-86, 87, 210 N.W. 850, 851 (1926) (ordering partition of two tracts of same general character and roughly same value).  Where a “partition cannot be made equal between the owners without prejudice to the rights or interests of some, the court may require compensation to be made (owelty) to equalize partition.”  Anderson v. Anderson, 560 N.W.2d 729, 731 (Minn. App. 1997) (citations omitted) (upholding partition in kind with owelty when equal division cannot be made without great prejudice to owners but a sale is likewise disadvantageous), review dismissed (Minn. May 28, 1997).  The owelty ordered here was intended to equalize the partition in kind, because Johnson received the 20 acres that included the house and barn, while Winscher received the other 20 acres of bare land.  We cannot conclude that the district court’s decision to partition the property and order an owelty to Winscher was an abuse of discretion.[2]


            Winscher argues that under the theory of unjust enrichment, he is entitled to an award for the time, labor, and money he invested in the Freedhem property, which was owned by Johnson when the parties met and which she sold so that the parties could build on the Gotvald property.

            In connection with his unjust enrichment claim, Winscher asserted that he contributed over $25,000 in labor and materials to improving the Freedhem property so that Johnson could sell it.  At trial, however, Winscher agreed that some of his claimed expenses were not related to improvements to the property and were incurred for other expenses, such as purchasing feed, lick tanks, or paying vehicle insurance.  Winscher further agreed that he calculated the 262 hours that he claimed for the use of his skid loader to remove rubbish at the Freedhem property based on the number of hours the loader was running, regardless of whether it was used on the Freedhem property or elsewhere.  And the district court rejected Winscher’s other claimed contributions, determining that some were intended as gifts to Johnson or that Winscher failed to prove the value of his contributions.  Given Johnson’s testimony that she considered his assistance to be a gift or that his contributions were made prior to the parties’ agreement to sell the Freedhem property and build at the Gotvald property, we cannot conclude that the district court’s rejection of Winscher’s unjust enrichment claim was error or an abuse of discretion.


            By notice of review, Johnson challenges the district court’s deletion of one of its initial findings regarding the proceeds of the insurance settlement for hail damage to the property, which she claims Winscher unlawfully retained for his own use.  At trial, Winscher testified that these proceeds, which were received in 1998, were used to repair the hail damage and that the balance was used to pay the parties’ expenses or to purchase other items, such as a van.  Because the claims in this partition action were limited to actual improvements made to the property by the parties and because the evidence established that the parties used the insurance proceeds for living and other expenses, the district court properly rejected Johnson’s claim to part of those proceeds.

            We therefore affirm the district court’s findings and decision to partition the property and order an owelty.


[1] Minn. Stat. § 558.02 (2002) states that the summons in a partition action shall include all named parties, as well as any unnamed parties with a potential interest in the property.  Hence, “XYZ Corporation, et al.” are listed as defendants.


[2]  The district court ordered an owelty payment of $33,840.  This amount was based on the parties’ respective contributions to the total investment, 62% for Johnson and 38% for Winscher.  Given the property’s current appraised value of $168,000, the court found that Johnson was entitled to 62%, or $104,160, and that Winscher was entitled to 38%, or $63,840.  From Winscher’s share, the court deducted $30,000 for the value of the 20 acres that he was awarded.