This opinion will be unpublished and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

A03-1621

 

In re the Marriage of:

Nancy Ng Quan, petitioner,

Appellant,

 

vs.

 

Dennis Arthur Quan,

Respondent.

 

Filed September 7, 2004

Affirmed

Halbrooks, Judge

 

 

Ramsey County District Court

File No. F3-00-1384

 

Nancy N. Quan, c/o Michael Bergman, 83 Wallace Street, Somerville, MA 02144 (pro se appellant)

 

Timothy W.J. Dunn, 1150 US Bank Center, 101 East 5th Street, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Minge, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            In this proceeding to enforce certain obligations in the judgment dissolving the parties’ marriage, pro se appellant was ordered to compensate respondent for certain property that he was supposed to receive but did not.  Appellant challenges several of the district court’s factual findings, as well as the district court’s denial of attorney fees.  Because we conclude that the court’s findings are not clearly erroneous and that the court did not abuse its discretion in declining to award attorney fees, we affirm. 

FACTS

            The marriage of appellant Nancy Ng Quan and respondent Dennis Arthur Quan was dissolved by judgment entered on July 8, 2002.  In the judgment, the district court divided the parties’ assets, including both real and personal property.  Only three of those distributions are relevant to this appeal.  First, the district court found that several items of personal property, including four 24K gold children’s bracelets, two soft gold children’s rings, and 30 American silver dollars from the turn of the century, were in the parties’ safe when respondent left the home on September 2, 1996.  The judgment awarded those items to respondent.  Second, the judgment ordered appellant to arrange for the sale of five pieces of real property, including the “Belle Vista Village golf course lot” and the “Southwind Condo timeshare,” and that she provide information to respondent on her progress.  Upon completion of those sales, the judgment instructed the parties to equally divide the proceeds.  Third, the judgment awarded respondent certain financial assets, including several annuities totaling $18,007.76. 

Neither party moved to amend these portions of the judgment, and neither party appealed.  Consequently, the judgment became final 60 days after its entry.  See Minn. R. Civ. App. P. 104.01, subd. 1 (stating that “an appeal may be taken from a judgment within 60 days after its entry”); see also Servin v. Servin, 345 N.W.2d 754, 757-58 (Minn. 1984) (recognizing that after the time to appeal an original judgment has expired, the issues decided in the judgment that are not later amended or modified are final).

In February 2003, respondent brought a post-judgment motion, requesting relief based on appellant’s failure to comply with the judgment.  Respondent argued that appellant failed to deliver the four gold children’s bracelets, the two gold children’s rings, and the 30 silver dollars awarded to him in paragraph 8(c) of the judgment.  Respondent valued the bracelets at $2,000, the rings at $1,000, and the silver dollars at $3,000, and he requested judgment in that amount.  Respondent also alleged that appellant failed to deliver other items that were awarded to him under paragraph 8(c), and he sought the value of that property as well.  Additionally, respondent requested an order directing appellant to immediately list the Belle Vista property and the Southwind Condo, as required under the judgment, and sought attorney fees.   

In April 2003, appellant brought a motion and counter-motion requesting relief, including that the district court (1) deny respondent’s motion in its entirety, (2) issue an order directing that “until such time as the Belle Vista Village lot and South Wind Condo timeshare interests are sold, Respondent be responsible for and pay one-half of all insurance, property tax, fees, assessments, and other charges relating to the parties’ joint ownership and sale of the properties,” (3) order that “the PFL Life insurance annuity, jointly owned by the parties, be divided . . . equitabl[y],” and (4) award appellant attorney fees.

The district court held a hearing to address the parties’ motions.  Based on appellant’s contention that “everything was in fact turned over,” the court directed appellant “to search her home for the items claimed to be missing and to inquire about the items by asking her children or anyone who had access to the home and safe, if they could assist her in finding the items.”  The district court also stated that if appellant could not find the items, she should address their value in an affidavit.  Appellant subsequently submitted her own affidavit, along with the affidavits of her children and two other family members.

By order dated August 28, 2003, the district court made several findings relevant to this appeal.  First, the court found that appellant had not acted promptly in selling the Belle Vista lot and the Southwind condo, nor had she provided timely information to respondent regarding the sales.  Accordingly, the court ordered appellant to “list and proceed in a reasonable manner to sell” those properties, and to provide proof to respondent within seven days that “listing is current” and to provide additional written updates every six weeks regarding “all details of listing, offers and sale.”  Pending sale, the parties were ordered to share equally the expenses associated with those properties. 

Second, with regard to the personal property awarded to respondent under paragraph 8(c) of the judgment, the court stated:

[Appellant] submitted her own post-hearing affidavit.  She said she made a search and did not find additional items and asserted that Respondent is “lying or confused.”

 

[Appellant] submitted additional affidavits from the parties’ sons, Dennis and Christopher, from Glen Quan, Respondent’s brother, and Ernest Quan, Respondent’s uncle.  These affidavits, together with the affidavit of [appellant], are focused on relitigating dissolution issues, criticizing [appellant’s] trial counsel and include negative personal comments about Respondent.

 

It is undisputed that Respondent left the family home September 2, 1996 and did not return.  The household contents, including the safe, were under the sole control of [appellant] after September 2, 1996.

 

. . . .

 

The Court finds that the jade pendants, platinum wedding ring and 4 diamond men’s ring were delivered to Respondent.  The Court finds that Respondent added claims for jade wristbands, mint proof sets and loose gems, which the Court will not add to the prior order.  Respondent will be awarded his claimed values as follows:

 

$2,000 – 4 children’s bracelets;

$1,000 – 2 children’s rings; and

$3,000 – 30 silver dollars

$6,000                TOTAL.

 

The district court also corrected two “typographical errors” in paragraph 8(c) of the judgment.

            Finally, with regard to appellant’s request for an equitable division of the PFL life insurance annuity, the court found that this annuity was presently called the “Trans America Life Insurance annuity” and that the judgment had awarded that annuity to respondent.  The court declined to award attorney fees to either party.  This appeal follows.

D E C I S I O N

I.

Appellant challenges several of the district court’s findings.  We will not set aside the district court’s findings of fact unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  To establish that findings are clearly erroneous,

the party challenging the findings must show that despite viewing [the] evidence in the light most favorable to the [district] court’s findings (and accounting for an appellate court’s deference to a [district] court’s credibility determinations and its inability to resolve conflicts in the evidence), the record still requires the definite and firm conviction that a mistake was made.

 

Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000). 

Because we must view conflicting evidence in the light most favorable to the district court’s findings, challenging findings by simply marshalling evidence that could support findings other than those made by the district court is inadequate to show the challenged findings to be clearly erroneous.  Id.  Instead, the challenger must address why the evidence upon which the district court based its findings is inadequate to support those findings.  See id. (stating both “[t]hat the record might support findings other than those made by the [district] court does not show that the court’s findings are defective” and that only if findings are “clearly erroneous” does it become relevant that the record might support findings other than those that the district court made).  For the following reasons, we conclude that appellant has failed to meet this burden.

A.        Finding that property awarded to respondent under the judgment, but never delivered by appellant, is valued at $6,000.

 

1.         Did the district court improperly modify the judgment?

 

Appellant argues that the district court’s August 28 order improperly modified the judgment by correcting two typographical errors in paragraph 8(c).  See Erickson v. Erickson, 452 N.W.2d 253, 255 (Minn. App. 1990) (recognizing that the district court may not modify a division of property after the original judgment has been entered and the time for appeal has expired).  But a district court may issue appropriate orders implementing or enforcing a provision of a dissolution judgment.  Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991).  And a district court may clarify and construe an ambiguous or uncertain dissolution judgment so long as it does not change the parties’ substantive rights.  Kornberg v. Kornberg, 542 N.W.2d 379, 388 (Minn. 1996). 

Whether a dissolution judgment is ambiguous is a question of law, which this court reviews de novo.  Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn. App. 1986).  “[I]f language is reasonably subject to more than one interpretation, there is ambiguity.”  Id.  A clarification does not result in a judgment different from the original, but instead “serves only to express more accurately the thought which, at all times, the judgment was intended to convey.”  Stieler v. Stieler, 244 Minn. 312, 320, 70 N.W.2d 127, 132 (1955).  A district court’s construction of its own judgment is given great weight on appeal.  Johnson v. Johnson, 627 N.W.2d 359, 363 (Minn. App. 2001). 

Here, paragraph 8(c) of the judgment provides:

The [sic] is awarded the items that were in the safe on September 2, 1996.  The Respondent is awarded the 2 jade pendants of his mother that she gave him, 4 - 24K gold child’s bracelets that were his when he was a baby, 2 soft gold children’s rings that were his as a child, 30 silver dollars (American) from the turn of the century given to him by his mother when he was in his youth, his platinum wedding ring, a 4 diamond 14K gold men’s ring that was in the safe on September 2, 1996 and the Respondent [sic] is ordered to give these items to the Respondent within 10 days of the entry of the Judgment and Decree.

 

(Emphasis added).  In its August 28 order, the court stated:

            Paragraph 8(c) has two typographical errors: In the first line, “the is” clearly omits “Respondent” and should read, “The Respondent is . . .”  In the final sentence, “Respondent is ordered . . .” should read, “Petitioner is ordered . . .”  Petitioner was ordered to give these items to the Respondent within 10 days of the entry of the Judgment and Decree.

 

Because we conclude that ambiguity existed in the original judgment language, the district court was entitled to clarify that language so long as the parties’ substantive rights were not affected.  Appellant’s substantive rights were not affected by changing the judgment to read, “The Respondent is awarded the items that were in the safe . . .,” as the next sentence in the judgment specifically awards the items in the safe to respondent.  Furthermore, appellant’s substantive rights were not affected by changing the judgment to read, “Petitioner is ordered to give these items to the Respondent,” as appellant already acknowledged this obligation by delivering several of the items listed in paragraph 8(c) to respondent, including one silver and one gold men’s wedding band, 3 jade pendants, and one man’s ring with 4 diamonds.  Therefore, we conclude that the district court did not err in clarifying the judgment’s language in its August 28 order.

2.         The court’s valuation of the jewelry and silver dollars was not clearly erroneous.

 

Appellant also challenges the district court’s valuation of $6,000 for the jewelry and silver dollars.  Because the parties had sufficient time to physically divide the personal property, but were unable to do so, the district court could appropriately implement the judgment by changing “the form of respondent’s interest from goods to cash.”  Hanson v. Hanson, 379 N.W.2d 230, 233 (Minn. App. 1985).  This does not affect the division of personal property, as neither party receives more or less than each received under the original judgment.  Id.

The valuation of an asset is a finding of fact that will not be set aside on appeal unless clearly erroneous.  Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn. 2001).  A district court need not be exact in its valuation of an asset; “it is only necessary that the value arrived at lies within a reasonable range of figures.”  Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979).  The valuation of an asset “should be supported by either clear documentary or testimonial evidence or by comprehensive findings issued by the [district] court.”  Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983); see also Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975) (stating that district court’s valuation will be affirmed if it is within the limits of a credible estimate made by competent witnesses, “even if it does not coincide exactly with the estimate of any one [witness]”). 

Here, the district court stated:

The value of the items awarded to Respondent and not delivered to him poses a difficult question.  [Appellant’s] attorney wrote in a post-hearing letter (May 30, 2003) that “my client has no basis upon which to even estimate the value of the items at issue.”  In Ferguson v. Ferguson, 357 N.W.2d 104 (Minn. App. 1984) the court held that in a marriage dissolution proceeding in which marital property division is at issue, the owner is presumptively knowledgeable about its value.  Here the disputed property includes marital and nonmarital items.  The Court will rely upon Respondent’s values but finds that some items claimed by him were not specifically awarded by the trial court and should not be added now.  Certain other items have been delivered to Respondent. 

 

The court then awarded respondent $2,000 for the children’s bracelets, $1,000 for the children’s rings, and $3,000 for the silver dollars, for a total award of $6,000.

The only evidence submitted to the district court on this issue was in the form of respondent’s post-judgment motion and accompanying affidavit, in which respondent requested (1) $2,000 for the value of the four 24K soft gold child bracelets, which he stated were “old fine quality and fine worked” and were “very sentimental” to him, (2) $1,000 for the value of the two 24K soft gold children’s rings, which he stated were “of high quality gold and workmanship,” and had “strong sentimental” value, and (3) $3,000 for the value of the 30 American silver dollars from the turn of the century that, according to respondent, were “[v]ery conservatively speaking . . . [worth] at least $100.00 a piece.” 

Although the district court asked appellant to discuss valuation of this property in her affidavit, she failed to do so.  Instead, as she continues to do on appeal, appellant sought to relitigate the issue of whether the items were actually in the safe when respondent left the home in September 1996.[1]  Consequently, respondent’s valuation of the property was uncontested. 

In Minnesota, the owner of property is “presumptively acquainted with its value” and may generally testify as to its value without any particular foundation being laid.[2]  Bury v. Bury, 416 N.W.2d 133, 136 (Minn. App. 1987); but see Lehman v. Hansord Pontiac Co., 246 Minn. 1, 7, 74 N.W.2d 305, 309-10 (1955) (stating that “if there is an apparent lack of knowledge on the part of the owner as to value of his property, the same goes to the weight of the testimony given but not to the competency of that testimony”).  This court defers to the district court’s assessment of credibility.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  Therefore, because respondent’s valuation of the property was unchallenged and the district court found it to be credible, we conclude that the district court’s award of $6,000 was not clearly erroneous. 

B.        Finding that it was undisputed that respondent never returned to the house after September 2, 1996.

 

In its August 28 order, the district court stated that “[i]t is undisputed that [r]espondent left the family home September 2, 1996 and did not return.  The household contents, including the safe, were under the sole control of [appellant] after September 2, 1996.”  Appellant argues that this statement is false and that the finding is an improper modification of the judgment.

In appellant’s May 2003 affidavit, she alleged that respondent “returned home a number of times to take a lot of property when [appellant] was at work.”  But appellant did not make these allegations in her trial memorandum.  Rather, she stated that she and respondent were “separated on September 2, 1996, after [r]espondent was removed from the home by Roseville police,” and that they “have lived separate and apart since [r]espondent departed the homestead in September, 1996.”  The record does not contain a copy of the trial transcript, and therefore, it is unclear exactly what arguments were presented to the district court.  However, in the judgment, the district court stated that respondent “was under Court Orders in 1996 and 1997 to have no contact with [appellant], in person or through any third person” and that he “in good faith, believed that he should continue to stay away from the homestead.”  Because the record contains no evidence that appellant returned to the home until after the judgment was entered and the time for appeal expired, the district court’s finding in the judgment stands.  Therefore, we conclude that the district court did not improperly modify the judgment by stating that respondent left the home in September 1996 and did not return.

Regardless, “error without prejudice is not ground for reversal,” Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975), and appellant has failed to demonstrate how she was prejudiced by this finding.  Appellant is unable to challenge, at this late date, the district court’s decision that the items were in the safe and that they should be awarded to respondent.  Therefore, even if we were to conclude that the district court’s finding is clearly erroneous, reversal would be unnecessary.

C.        Finding that appellant did not promptly list real estate properties for sale.

 

In finding #12 of the judgment, the district court stated:

 

The parties agreed that the following real properties shall be immediately listed and/or advertised for sale, and that the net proceeds after normal sale and closing costs shall be divided equally (50% - 50%) between the parties. 

 

1.         Belle Vista Village golf course lot located in Arkansas #247-01-030.

2.         Lot 8, Block 1, Twin Lake Shores, Crow Wing County, Minnesota.

3.         Undivided 1/10 of Outlot A. Stark Lake Shores, Crow Wing County, Minnesota.

4.         Tract G. Ross Lake, Crow Wing County, Minnesota.

5.         Southwind Condo timeshare interest located in Hilton Head Island, South Carolina.

 

            The parties agree that [appellant] shall be responsible for arranging the sale of these properties with consultation and agreement with Respondent on sales price.

 

In conclusion #6, the court also stated that “[t]he various real property and timeshare interests shall be divided between the parties and/or sold and the net proceeds split equally as set forth in Finding 12 above.” 

In its August 28 order, the district court stated:

The Belle Vista lot and Southwind condo were to be immediately listed and/or advertised for sale and net proceeds divided equally between the parties (Finding #12 and Conclusion #6).  At Finding #12, the Court found that the parties had agreed that [appellant] shall be responsible for arranging the sale of these properties with consultation and agreement with Respondent on sale price. This Court finds that [appellant’s] responsibilities include prompt notice to Respondent regarding any offer to purchase or communication regarding the current market value from management companies.  Further, this Court finds that [appellant] has not acted promptly to accomplish sale and provide reasonably timely information to Respondent regarding sale.  Consistent with the trial Court’s finding and order, the parties shall pay in equal shares the expenses related to maintaining the properties pending sale, including mortgages, assessments, taxes and expenses of sale.  Each party shall maintain and provide to the other an itemized list with supporting payment documentation for all such expenditures from July 8, 2002 to date of closing.  At the hearing, the Court understood the parties to say that the Southwind condo had been sold to a son of the parties.

 

Consequently, the district court ordered appellant “to list and proceed in a reasonable manner to sell the Belle Vista lot and Southwind condo (if it has not been sold to date).”  Appellant was also ordered to “provide proof to Respondent within seven days . . . that listing is current and to continue to provide written updates every six weeks regarding all details of listing, offers and sale.”  Both parties were ordered to “maintain itemized lists of expenses” related to the properties.

Appellant’s challenge to these findings is without merit.  It is undisputed that the judgment was entered in July 2002 and, as of the district court’s August 2003 order, appellant had failed, for whatever reason, to sell two of the properties.  The district court’s order merely repeats the duties assigned to appellant under the judgment, in slightly more specific terms, and states that she failed to comply with the judgment.  The district court’s findings on this issue are not clearly erroneous. 

D.        Finding that the judgment awarded respondent the PFL/Trans America life insurance annuity.

 

In its August 28 order, the district court stated:

The parties dispute the allocation of the PFL life insurance annuity, now Trans America Life Insurance annuity.  [Appellant] claims it was omitted from the property settlement and that this Court should divide the annuity in a “just and equitable” manner.  Respondent believes it was awarded to him.  Finding 25c and Conclusion 20 (the reference to Finding 24 is found to be in error and meant to be reference to Finding 25).  This Court agrees that the disputed annuity was awarded to Respondent.

 

A district court’s construction of its own judgment is given great weight on appeal.  Johnson, 627 N.W.2d at 363.  As the district court correctly pointed out, in finding #25 of the judgment, respondent was awarded (1) the “Alexander Hamilton Annuity,” valued at $11,993.84, (2) the “Aetna Real Estate, Partnership IRA,” valued at $955, and (3) the “Transamerica Life” annuity, valued at $5,058.92.  This award was also recognized in conclusion #20 of the judgment.  Therefore, contrary to appellant’s argument, the judgment did award the PFL life insurance annuity (now referred to as the Trans America Life Insurance annuity) to respondent.  The district court’s August 28 order did not change the substantive rights of the parties; it simply enforced the prior award. 

Furthermore, a district court may amend a dissolution judgment if property was unintentionally omitted from a dissolution judgment.  See Neubauer v. Neubauer, 433 N.W.2d 456, 461 n.1 (Minn. App. 1988) (recognizing that pension benefits omitted from initial property division could be divided as “omitted property”), review denied (Minn. Mar. 17, 1989).  Therefore, even if the annuity had been omitted, the district court was free to amend the judgment and award the annuity to respondent.  We conclude that the district court’s denial of appellant’s motion for an equitable division of the annuity was not erroneous. 

II.

Appellant also challenges the district court’s denial of her request for attorney fees.  The district court has broad discretion in determining whether to award attorney fees, and this court will not disturb that determination absent a clear abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). 

There are two bases for the award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2002).  First, the district court “shall” award attorney fees based on a party’s need if the court finds that (1) the fees are necessary for the good-faith assertion of the party’s rights; (2) the party from whom fees, costs, and disbursements are sought has the means to pay them; and (3) the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.  Id.  Additionally, the district court “may” award “additional” attorney fees against a party who “unreasonably contributes to the length or expense of the proceeding.”  Id.  The party who moves for conduct-based attorney fees has the burden to show that the other party’s conduct unreasonably contributed to the length or expense of the proceeding.  Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001).

Here, with regard to attorney fees, the district court stated:

This dissolution proceeding, including trial and extensive post-trial conflict, has cost each party substantial financial and emotional expense.  The Court does not find that either party proceeded in bad faith.  Each has sufficient financial resources to pay their respective attorney fees.  Further delay in implementing all provisions of the Judgment and Decree and this order may lead to consideration of awards of attorney fees in the future.

 

We agree.  The record indicates that need-based attorney fees were not appropriate in this case.  With respect to conduct-based fees, the district court correctly recognized that there is no evidence in the record establishing that respondent unreasonably contributed to the cost or length of these proceedings.  Therefore, the district court did not abuse its discretion in denying appellant’s motion for attorney fees. 

            Affirmed.

 

 



[1] Once the time for an appeal from an appealable order has expired, an issue that has been litigated and decided cannot be relitigated.  Loo v. Loo, 520 N.W.2d 740, 743-44 (Minn. 1994).  Even if the district court’s decision was wrong, it is still final after the time for appeal has expired.  Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966).  Therefore, the district court properly refused to consider the affidavits submitted by appellant, which sought only to relitigate the issue of whether the items were actually in the safe in September 1996.  Furthermore, new evidence, not in the district court record, will not be considered for the first time on appeal.  Ryan v. Ballentine VFW Post No. 246, 407 N.W.2d 105, 109 (Minn. App. 1987).  Therefore, we disregard appellant’s attempts to establish, through new evidence, the “fair market value” of that property, and disregard her request that a “fair market value” of $500 be accorded to the missing property. 

 

[2] The record indicates that respondent previously owned a jewelry business, and therefore, the district court may have considered this expertise in weighing his credibility.