This opinion will be unpublished and

may not be cited except as provided by

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







In re the Marriage of:

Ann Norton Toussaint,






Michael Ray Pedersen,




Filed June 15, 2004

Affirmed in part, reversed in part, and remanded;

motion denied
Klaphake, Judge


Goodhue County District Court

File No. F4-02-243



Lawrence Downing, Lawrence Downing & Associates, 330 Wells Fargo Center, 21 First Avenue Southwest, Rochester, MN  55902 (for respondent)


Shelly D. Rohr, Wolf, Rohr & Dolan, P.A., 400 North Robert Street, Suite 1860, St. Paul, MN  55101 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Michael Ray Pedersen appeals from the district court’s dissolution judgment, arguing that the court improperly awarded respondent Ann Norton Toussaint an interest in his nonmarital property.  By notice of review, respondent alleges that the district court abused its discretion by failing to award her attorney fees and costs.  Respondent also moves this court for fees and costs on appeal.

            Because the district court failed to make findings concerning the marital or nonmarital nature of the disputed property, we reverse the court’s order awarding the property to the parties as tenants in common and remand to the district court for further findings.  Because the district court had a reasonable basis for refusing to award respondent attorney fees, we affirm.  Because respondent has failed to show a basis for an award of attorney fees under Minn. Stat. § 518.14 (2002), we deny her motion.


            1.         Property Division

            The district court’s division of marital property will not be disturbed absent an abuse of discretion.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000).  This court reviews de novo a district court’s determination of whether property is marital or nonmarital, but defers to the district court’s findings of fact, unless they are clearly erroneous.  Id. at 412-13.  The party claiming that property is nonmarital has the burden of proving the necessary facts by a preponderance of the evidence.  Id. at 413.

            “Marital property” is “property, real or personal . . ., acquired by the parties, or either of them, . . . during the existence of the marriage relation.”  Minn. Stat. § 518.54, subd. 5 (2002).  “Nonmarital property” includes “property real or personal, . . . acquired by either spouse before, during or after the existence of their marriage.”  Id.  Nonmarital property includes the increase in value of nonmarital property when it is attributable solely to market conditions, such as appreciation.  Chamberlain, 615 N.W.2d at 413.  The income from nonmarital property or any increase in value due to the entrepreneurial decision making of one or both of the parties is considered to be marital property.  Swick v. Swick, 467 N.W.2d 328, 331 (Minn. App. 1991), review denied (Minn. May 16, 1991).

            Here, appellant purchased the disputed five-acre parcel prior to the marriage and the land remained unimproved through the dissolution valuation date.  Appellant, however, transferred the property into joint tenancy with respondent after they were married.  This change alone is not dispositive of whether the property is marital or nonmarital in nature.  “The mere act of transferring title from individual ownership to joint tenancy does not transform non-marital property into marital property.”  Pfleiderer v. Pfleiderer, 591 N.W.2d 729, 732 (Minn. App. 1999) (quotations omitted).  Nonmarital property remains nonmarital, even if commingled with marital property, if it is readily traceable.  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).  But if appellant did more than make a mere legal transfer of title, such as making a valid gift to respondent, the property could be deemed to be marital property.  See McCulloch v. McCulloch, 435 N.W.2d 564, 568 (Minn. App. 1989). 

            The district court’s findings as to the marital or nonmarital nature of the property are ambiguous.  The district court found that appellant “has an interest” in the vacant land, but does not specify the type of interest he has.  There is no finding regarding appellant’s interest in the property.  The district court further found “it is equitable to let the parties continue to own this property, although as tenants in common following the marriage termination” and awarded the parties an undivided one-half interest in the land, as tenants in common.  While nonmarital property can be invaded in the case of hardship, Minn. Stat. § 518.58, subd. 2 (2002), the court made a specific finding that “given [respondent’s] financial resources including the material property apportioned below, [respondent] is not suffering from an unfair hardship.” 

            The lack of clarity in the district court’s findings prevents us from determining the basis for the award of this vacant land as a tenancy in common.  We therefore reverse the award of this property and remand to the district court for further findings.

            2.         Attorney Fees

            Respondent appeals the district court’s failure to award her attorney fees and has moved this court for attorney fees on appeal.   The district court’s decision regarding attorney fees will not be overturned absent an abuse of discretion.  Burns v. Burns, 466 N.W.2d 421, 424 (Minn. App. 1991).  An award of attorney fees on appeal lies within the discretion of the appellate court.  LaChapelle v. Mitten, 607 N.W.2d 151, 167 (Minn. App. 2000), review denied (Minn. May 16, 2000).

            The court shall award need-based attorney fees if it finds that (1) an award of fees is necessary for the good-faith assertion of the party’s rights in the proceeding; (2) the party ordered to pay the fees has the resources to pay them; and (3) the party awarded fees does not have the resources to pay them.  Minn. Stat. § 518.14, subd. 1 (2002).  Upon a finding that a party unreasonably contributed to the length or expense of the proceeding, the court may also award conduct-based fees.  Id.

            Based on the record before us, the district court did not abuse its discretion by refusing to award attorney fees.  Respondent received a generous and liquid property settlement and permanent maintenance, which provide her with a resource for the payment of her attorney fees.  Further, the record does not provide a basis for conduct-related fees.  On remand, the district court may consider the issue of attorney fees, if the parties’ property division is changed.

            Finally, we decline to order an award of attorney fees on appeal, concluding that the record here does not support an award of either need- or conduct-based fees.

            Affirmed in part, reversed in part and remanded; motion denied.


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