This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1290

 

 

In re the Marriage of:
Jon H. Engelking, petitioner,
Appellant,

vs.

Susan Katherine Engelking,
Respondent.

 

Filed May 18, 2004

Affirmed; motion denied

Wright, Judge

 

Washington County District Court

File No. F9-00-4502

 

 

Kathleen M. Picotte Newman, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Wells Fargo Financial Center, 7900 Xerxes Avenue South, Minneapolis, MN  55431 (for appellant)

 

D. Patrick McCullough, Lisa Watson Cyr, McCullough, Smith & Klempe, P.A., 905 Parkway Drive, St. Paul, MN  55106 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this maintenance-modification dispute, appellant-husband argues that the district court erred in ruling that the parties’ stipulated dissolution judgment precluded him from moving to reduce his maintenance obligation until he received a W-2 form showing that his income had decreased by at least $50,000.  Respondent-wife argues that husband’s appeal is untimely and seeks attorney fees on appeal.  We affirm, and we decline to award wife attorney fees in the absence of any billing explanation as to the legal services performed. 

FACTS

            The November 2001 stipulated judgment dissolving the marriage of appellant-husband Jon Engelking and respondent-wife Susan Engelking set forth husband’s income, awarded wife spousal maintenance, and stated that husband could not seek an income-based reduction of his spousal-maintenance obligation unless his “W-2 income” showed a decrease of at least $50,000.  Husband became unemployed in January 2003.  In February, husband moved to decrease his maintenance obligation.  By order dated May 23, 2003, the district court denied husband’s motion, concluding that the motion is procedurally barred because husband had not received a W-2 form showing that his income had decreased by at least $50,000.  The district court also ruled that if husband’s motion were properly before the district court, husband had failed to show a substantial change in circumstances rendering the existing spousal-maintenance award unreasonable and unfair.  After the denial of husband’s posthearing motion for amended findings, husband appeals.  Wife argues that the appeal is untimely and seeks attorney fees.

DECISION

I.

As an initial matter, we consider wife’s claim that we lack jurisdiction over this appeal because it is untimely.  Generally, an appeal of an order must be taken within 60 days after service of the notice of filing of the order.  Minn. R. Civ. App. P. 104.01, subd. 1.  Although a timely and proper motion for amended findings suspends the time to appeal the underlying ruling until resolution of that motion, a motion for reconsideration does not suspend the time to appeal.  Id., subd. 2(b) (regarding motions for amended findings); Limongelli v. GAN Nat. Ins. Co., 590 N.W.2d 167, 168 (Minn. App. 1999) (regarding motions for reconsideration).  Wife was served with notice of filing of the May 23 order on May 28, husband moved for amended findings, and the district court denied that motion, stating that it “constitutes a motion for reconsideration.”  Husband then appealed on September 8.  Wife argues that the district court’s ruling that husband’s motion for amended findings constituted a motion for reconsideration establishes that the appeal time was not suspended.  Because husband’s September 8 appeal was not taken within 60 days of the May 28 service of notice of filing of the May 23 order, wife contends that the appeal is untimely.  See Minn. R. Civ. App. P. 126.02 (stating that this court cannot extend time to appeal); Bongard v. Bongard, 342 N.W.2d 156, 158 (Minn. App. 1983) (stating that “[t]ime limits on appeals are jurisdictional”).

A posthearing motion suspends the time to appeal if the “face” of the motion shows it to be “a motion that is expressly allowed under [Minn. R. Civ. App. P. 104.01, subd. 2].”  Madson v. Minn. Mining & Mfg. Co., 612 N.W.2d 168, 172 (Minn. 2000) (holding that whether a motion has tolled the time for appeal is determined by the face of the motion, not its substance or merits).  It is undisputed that the face of husband’s motion sought amended findings.  Rule 104.01, subd. 2, lists a motion for amended findings among the motions that suspend the time to appeal.  Minn. R. Civ. App. P. 104.01, subd. 2(b).  Because husband’s motion suspended the time to appeal, this appeal is timely. 

II.

            The dissolution judgment states that “[husband] will not be allowed to bring a motion to decrease spousal maintenance based on a decrease in his W-2 income unless his W-2 income for the year preceding the motion to modify support has decreased by at least $50,000.00.”  The district court denied husband’s February 2003 motion to reduce maintenance, stating that “under the clear and unambiguous terms of the stipulation, [husband] may not move the Court to modify his maintenance obligation until after he has compiled his total earned income for the preceding calendar year.”  Accordingly, the district court ruled that husband is precluded from seeking to reduce his spousal-maintenance obligation until he receives a W-2 form showing that his income has decreased by at least $50,000.  Husband argues that the judgment should be interpreted to refer to his W-2 income for the 12 months preceding the motion.  He contests the district court’s reading of the provision, claiming that it improperly substitutes “calendar year” for “year.” 

A document is ambiguous if it could reasonably have more than one meaning.  Landwehr v. Landwehr, 380 N.W.2d 136, 138 (Minn. App. 1985).  Whether a document is clear or ambiguous is a legal question, which we review de novo.  Anderson v. Archer, 510 N.W.2d 1, 3 (Minn. App. 1993) (existence of clarity of stipulated judgment is legal question); Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn. App. 1986) (existence of ambiguity of stipulated judgment is a legal question).  We conclude that “W-2 income” cannot reasonably be interpreted to mean anything other than the income shown on a W-2 form.  When husband moved to modify his spousal-maintenance obligation, he had not received a W-2 form establishing that his income had decreased by at least $50,000.  Accordingly, we affirm the district court’s reading of the unambiguous provision to preclude husband’s current motion. 

Because the provision is not ambiguous, we need not address the parties’ disputes as to the proper construction of the provision if it were ambiguous.  Similarly, because husband’s motion was premature, we do not address the parties’ disputes as to whether husband established changed circumstances and whether the district court abused its discretion by receiving certain documents into evidence. 

III.

            Wife seeks $10,151 in need-based and conduct-based attorney fees on appeal under Minn. Stat. § 518.14, subd. 1 (2002).  She also argues that attorney fees are appropriate under Minn. Stat. § 549.211 (2002).  Seeking attorney fees on appeal generally requires that the party seeking fees submit

specific descriptions of the work performed, the number of hours spent on each item of work, the hourly rate charged for that work, and evidence concerning the usual and customary charges for such work, or if the basis for the fees is other than hourly, information by which the court can judge the propriety of the request.  Where appropriate, copies of bills submitted to the client, redacted if necessary to preserve privileged information and work-product, may be submitted with the motion.

 

Minn. R. Civ. App. P. 139.06 advisory comm. cmt. (1998).  Husband argues that wife failed to submit sufficient information to permit us to determine the appropriate amount of fees because the billing records submitted lack any explanation of why the particular amounts were billed.[1]  Wife’s attorney contends that all of the billing explanations are subject to the attorney-client privilege. 

            The burden of showing the applicability of the attorney-client privilege is on the party asserting it.  See Leininger v. Swadner, 279 Minn. 251, 256, 156 N.W.2d 254, 258 (Minn. 1968) (stating “whether a communication is privileged is a question of fact and that ‘[w]hen upon a discovery motion a party litigant claims privilege, the burden rests on him to present facts establishing the privilege’” (quoting Brown v. St. Paul City Ry. Co., 241 Minn. 15, 34, 62 N.W.2d 688, 701 (1954))).  Wife makes a single, conclusory assertion that the privilege applies to all of the descriptive information on all of the billing sheets.  But descriptive information in billing statements is not per se privileged.  City Pages v. State, 655 N.W.2d 839, 844-45 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003).  We cannot evaluate the applicability of the attorney-client privilege without wife’s in camera disclosure of the descriptive information that was redacted from the billing statements.  Wife has not provided this court with sufficient information to demonstrate that the privilege applies.  We, therefore, deny her motion for attorney fees. 

            Affirmed; motion denied.



[1]  Husband also claims that wife’s attorney-fee submissions are defective because they omit support for certain fee-related assertions made by wife.  Any initial lack of support for those assertions, however, was addressed by the affidavit wife submitted as a reply to husband’s response to the attorney-fee motion.