This opinion will be unpublished and

may not be cited except as provided by

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







In re

Sandra Ann Benson, petitioner,





Bernard Leslie Benson,



Filed March 23, 2004


Forsberg, Judge*


Hennepin County District Court

File No. DC 259172



William L. H. Lubov, Lubov & Associates, LLC, 820 North Lilac Drive, Suite 210, Golden Valley, MN 55422 (for appellant)


A. Larry Katz, Robert W. Due, Susan A. Daudelin, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Klaphake, Presiding Judge; Randall, Judge; and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N




In this dissolution matter, appellant challenges the valuation date, the amount of her cash payment, and the denial of her motion for attorney fees.   Because we see no abuse of discretion, we affirm.


Appellant Sandra Benson and respondent Bernard Benson were married for about 20 years, from 1981 to 2002.  It was the second marriage for each of them; they had no children together.  Through respondent’s employment at Merrill Lynch, they accumulated about $13 million in assets.

The parties reached a settlement agreement in their dissolution action in mid-April 2002; judgment based on that settlement was filed in May 2002.  It provided that “values set forth for the cash and securities accounts . . . and the retirement accounts . . . shall be adjusted for gains and losses from October 31, 2001, to the date of distribution, which shall occur on or before [Saturday,] June 1, 2002.”

But distribution actually occurred on July 31, 2002.  The net value of the parties’ assets had decreased by $748,862 during June and July 2002.  The district court subsequently found that, because distribution had occurred on July 31, 2002, that date was the valuation date.  Appellant now argues that this finding was an abuse of discretion and that the district court further abused its discretion in setting the amount of her living-expense payment and in denying her motion for attorney fees.



1.         Valuation Date


The district courts have broad discretion in dividing property and setting reasonable valuation dates.  Desrosier v. Desrosier, 551 N.W.2d 507, 510 (Minn. App. 1996).  The district court found that the actual distribution date, July 31, 2002, was the valuation date.  Appellant contends that the correct valuation date was June 1, 2002.

The district court found ambiguity in the judgment’s provision that values were to be adjusted “to the date of distribution, which shall occur on or before June 1, 2002.”   Appellant argues that the judgment was not ambiguous.[1]   But the ambiguity was self-evident at the time the district court noted the ambiguity, on September 27, 2002.  The judgment provided two things:  (1) valuation was to be as of the date of distribution, and (2) the date of distribution was to be on or before June 1, 2002.  The second point was manifest error:  distribution did not take place “on or before June 1, 2002.”  The first point, therefore, was ambiguous:  if the valuation was the date of distribution, it could not be on or before June 1, and if valuation was on June 1, it could not be on the date of distribution.

To resolve the ambiguity it found, the district court looked at parol evidence.  Parol evidence may be admissible if a decree is ambiguous.  See Erickson v. Erickson, 449 N.W.2d 173, 178 (Minn. 1989) (admitting parol testimony and a letter to resolve ambiguity).  Specifically, the district court considered three letters written by appellant’s counsel to respondent’s counsel.

The first letter was written on Wednesday, May 29, 2002, i.e., three days before the distribution date of Saturday, June 1, 2002, given in the settlement agreement.  This letter mentions both a partial distribution, which is to occur in the immediate future, and a final distribution, which is to occur later:  “[W]e need to resolve these issues prior to a final distribution.  That, however, should not delay a partial distribution . . . .”  The letter makes it clear that appellant did not expect the final distribution to occur on June 1, 2002.  Her counsel wrote:

[T]he valuation date is the date of distribution.  I have no problem with initially utilizing April 30, 2002 as the first stage of the distribution; however, we will need updated statements on all accounts current to the date of actual distribution . . . accounts for April, May and, if necessary, June, 2002 and account statements . . . to the date of distribution for all other accounts.


 The second letter was written on Tuesday, June 11, 2002, ten days after the putative date of distribution. This letter does not reflect any expectation that final distribution should have occurred ten days earlier; it is concerned with ongoing calculations:  “[O]nly market force gains and losses are to be taken into consideration from October 31, 2001 to the present [i.e., the date of final distribution] in dividing the accounts.”  Therefore, at least until June 11, 2002, appellant was not acting as if final distribution should occur or had occurred on June 1, 2002.

Only after the fall in the assets’ value during June 2002 was known did appellant claim June 1, 2002, as the final distribution date.  On July 16, 2002, appellant’s counsel wrote, “[a]ny loss on the accounts that have occurred subsequent to June 1, 2002 are the responsibility of [respondent] and we expect that [appellant] will be compensated accordingly.” The district court found in these three letters “clear and convincing evidence that [appellant’s] counsel was interpreting the contract in the manner for which respondent now contends, until such time as the valuation of the stock assets dropped.”

Appellant contends the district court “misconstrued” her counsel’s letters. But appellant’s construction of the passages on which the district court relied is unpersuasive.  She claims that her counsel asked for account statements for June 2002, to determine if the assets’ value changed on June 1, 2002.  But June 1, 2002, was a Saturday; the assets’ value could not have changed on that day.  Appellant also claims that, when her counsel equated “valuation date” and “date of distribution,” he meant the date of the first stage of distribution, April 30, 2002.  But on May 29, 2002, her counsel said that he needed updated statements “to the date of actual distribution,” not to April 30, 2002.  The district court did not misconstrue appellant’s counsel’s letters.

Evidence supports the finding that July 31, 2002, was the valuation date; that finding was not an abuse of discretion.

2.         Living Expense Payment

            The judgment provided that appellant would receive, from one of the parties’ accounts, the sum of $1,718,773 adjusted for gains and losses from October 31, 2001, to the date of distribution. Between those dates, respondent deposited $285,869 into the account: $173,249 from his employment income and $112,619 interest and dividend income from assets allocated to him.  Respondent also withdrew $459,658, of which $157,200 was paid to appellant as spousal maintenance.  The district court found (1) that respondent was entitled to the same amount for living expenses as appellant received for maintenance, i.e., $157,200; (2) that $314,400 (appellant’s spousal maintenance and respondent’s living expenses) was a legitimate expenditure from the account; and (3) that the remaining $145,258 withdrawn was respondent’s excessive expenditure. 

Appellant was entitled to 40% of the excessive expenditure, or $58,103.  But prior to this order, respondent’s accountant had determined that respondent’s excessive expenditure was $129,209 and had paid appellant 40% of that amount, or $51,684. The district court therefore found appellant was entitled to the difference, or $6,419.  

Appellant argues that she is entitled to payments of $62,880, or 40% of the amount allocated to respondent for his own living expenses, and of $45,048, or 40% of the interest and dividend income.  Neither argument has merit.  The district court did not abuse its discretion in deciding that respondent, after paying appellant spousal maintenance, was entitled to use his earning and investment income to pay his own living expenses in an amount equal to her spousal maintenance. 

3.         Attorney Fees

            The relief appellant seeks from this court is “reasonable attorney and accounting fees and costs incurred in the prosecution of her case.”  However, she moved for attorney fees only once, at the September 13, 2002 hearing, when she asked for $5,000.  No request for attorney fees beyond this amount was ever presented to the district court and is therefore not properly before this court.

In its order of September 27, 2002, the district court denied appellant’s motion for $5,000 in attorney fees:  “Except for the portion of the motion related to the household goods, respondent has the more justifiable position.  Both parties have more than sufficient funds to pay for their own representation in connection with this motion.”  Appellant does not dispute this; instead, she argues that respondent’s conduct has unreasonably contributed to the length and expense of these proceedings.  But the record does not support this.  Appellant accuses respondent of failing to return items of personal property; the record shows that the district court found that neither party had fully complied with the division of property.  The only source to which appellant cites for her assertion that respondent withheld accounting statements is appellant’s attorney’s affidavit.  Appellant accuses respondent of miscalculations, but again, the record shows that miscalculations occurred with both parties.  The district court did not abuse its discretion in denying appellant’s motion for $5,000 in conduct-based attorney fees.







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

[1] We note that the parties’ disagreement as to the interpretation of the judgment may itself be tantamount to a finding of ambiguity.  Erickson v. Erickson, 449 N.W.2d 173, 178 (Minn. 1989).