This opinion will be unpublished and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:  Barbara Schable Ailts, f/k/a Barbara L. Boyle,






Paul R. Boyle,




Filed September 7, 2004

Affirmed in part, reversed in part, and remanded

Anderson, Judge


Ramsey County District Court

File No. F6-98-3435


John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., 450 Degree of Honor Building, 325 Cedar Street, St. Paul, MN  55101; and


Tammy L. Merkins, Thorwaldsen, Malmstrom, Sorum, Wilson, LaFlair & Majors, P.L.L.P., P.O. Box 1599, 1105 Highway 10 East, Detroit Lakes, MN  56501 (for appellant)


Garth G. Gavenda, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN  55101 (for respondent)


            Considered and decided by Anderson, Presiding Judge; Peterson, Judge; and Shumaker, Judge.


U N P U B L I S H E D  O P I N I O N




            In this post-dissolution proceeding, the district court ordered appellant to pay approximately $196,890 in spousal maintenance arrearages.  The district court also ordered appellant to pay a parenting time expeditor $23,484 in fees.  Appellant now challenges both the amount of the spousal maintenance and the expeditor’s fees.  We affirm in part, reverse in part, and remand.


The parties’ marriage was dissolved in 1999.  Pursuant to a stipulation, appellant, Paul Boyle, was ordered to pay child support and spousal maintenance.  As part of “spousal maintenance,” Boyle was ordered to “pay the principal, interest, taxes and insurance on the homestead” until his former spouse, respondent Barbara Ailts, remarried.  The judgment permitted Ailts to live in the house until she remarried. 

            Another provision of the judgment applied upon sale of the homestead and required the net proceeds to be equally split “after allocating 20% of the net sale proceeds” to Ailts.  The homestead was to be sold if Ailts remarried, but Ailts had the option to buy out Boyle’s interest in the home.  This provision further stated that Boyle was “solely responsible for and shall pay the existing principal and interest payments on the first and second mortgages, the home equity loan, as well as real estate taxes and homeowners insurance until the house is paid for or . . . [Ailts] remarries.”  Additionally, Ailts and Boyle were to employ “a parental consultant” to assist in determining parenting time if they could not agree.  The consultant was to have the authority of a visitation expeditor and was authorized to make binding decisions; the judgment required the consultant’s fees to be borne equally by Ailts and Boyle. 

            Boyle stopped paying the first mortgage in January 2001; the monthly mortgage payment was $1,294.88.  Boyle also stopped paying the home equity line of credit (sometimes called the second mortgage).  As of October 11, 2001, Boyle’s arrears on the line of credit were $9,608.88, but the outstanding principal balance on the line of credit obligation, as of October 26, 2001, was at least $85,000.  The line of credit matured on November 14, 2001.  Boyle also failed to pay the real estate taxes and the homeowner’s insurance. 

            On February 25, 2002, the parental consultant, respondent Ann McNattin, filed a “motion for judgment” against Boyle claiming that she had been appointed by the district court, that she had a contract with Boyle, and that Boyle had not paid her for her services.  On June 8, 2002, Ailts remarried.  On October 2, 2002, Boyle declared bankruptcy.  The bankruptcy court asked the district court to determine what amount Boyle owed McNattin and what amount Boyle owed Ailts with regard to the home. 

            On June 13, 2003, the home was sold for $299,000.  The total secured debt as of May 15, 2003, was at least $271,270.61 (including legal fees, foreclosure costs, and penalties).  Ailts conceded that $78,911.66 of the debt against the home was attributable to her because that would have been the outstanding debt at the time of her remarriage if Boyle had timely paid his obligations.  The district court found that, as of closing, there were additional costs of $5,612.39 and attributed those to Boyle. 

A hearing was held on June 25, 2003, to determine McNattin’s fees and Boyle’s responsibilities with regard to the home; McNattin did not appear.  The district court ordered that Boyle’s obligation was $198,071.34, less $1,180.52 paid to Ailts from the sale of the home, for a total house obligation of $196,890.82; the district court also concluded that this obligation was properly characterized as spousal maintenance in its entirety and thus not dischargeable in bankruptcy.  The district court also ordered Boyle to pay McNattin $23,484; alternatively, because of the bankruptcy, if the district court had no jurisdiction to order Boyle to pay McNattin, the district court found that $23,484 was a reasonable fee. 

Following Boyle’s motion to reconsider, the district court affirmed its previous order in all respects.  McNattin appeared and testified at the hearing on Boyle’s motion to reconsider.  This appeal followed the hearing on the motion to reconsider but preceded the order resulting from that hearing.


1.  Amount of Boyle’s obligation

Appellate courts review a district court’s maintenance award under an abuse-of-discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  A district court abuses its discretion regarding maintenance if its findings of fact are unsupported by the record or if it improperly applies the law.  Id. at n.3 (citing Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)).  Unless there is an explicit statement in the decree to the contrary, a party’s obligation to pay the other party spousal maintenance terminates upon the recipient’s remarriage.  Minn. Stat. § 518.64, subd. 3 (2002); Poehls v. Poehls, 502 N.W.2d 217, 219 (Minn. App. 1993); Peterson v. Lobeck, 421 N.W.2d 367, 368 (Minn. App. 1988).  Even if one party’s bad conduct requires enforcement proceedings, there is no authority allowing district courts to impose private fines on one party for the benefit of another party.  Kronick v. Kronick, 482 N.W.2d 533, 535 (Minn. App. 1992).

Boyle argues that the district court improperly calculated his house obligation.  Essentially, Boyle appears to argue that he should not be required to pay the higher interest Ailts was forced to pay when Boyle refused to meet his obligation.  The judgment requires Boyle to pay the loans secured by the home, including all of the interest. The judgment does not limit the interest Boyle has to pay to the 1999 rate; therefore, the district court had the authority to order Boyle to pay the higher rate, arrears, and penalties resulting from his refusal to meet his obligations.  Requiring Boyle to pay what are essentially Ailts’s damages is not the same as requiring Boyle to pay a private fine.

The only figures before the district court were those provided by Ailts.  The district court based its judgment on the calculations and the amounts provided by Ailts, and, because those amounts are supported by the record, we cannot say that the district court clearly erred in identifying the amount due.  Thus, because the district court relied on the facts in the record and because the district court properly construed the judgment to require Boyle to pay all of the principal, interest, fees, and penalties on the loans secured by the property until the date of Ailts’s remarriage, we conclude that the district court did not abuse its discretion.

2.  Whether all payments are spousal maintenance

Boyle argues that the district court erred in finding that all of his obligations with regard to the house were spousal maintenance.  This decision is reviewed for an abuse of discretion.  Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989).

Boyle argues that part of the obligation he was ordered to pay was for attorney fees, but no part of the judgment is directly identified as an award of attorney fees.  At best, by implication, appellant argues that the $5,612 awarded to Ailts is actually attorney fees, but the judgment does not so state, and thus, it is not clear on the record that the district court included attorney fees as spousal maintenance.  We decline to disturb the district court’s award on this ground.

The provision concerning spousal maintenance in the judgment required Boyle to pay the interest and, essentially, all other costs associated with the first mortgage.  Thus, Boyle’s argument that increased interest because of late payment is not spousal maintenance is also without merit because he was obligated to pay all interest and costs, regardless of whether those charges were imposed because of late payment.  Because the spousal maintenance provision essentially requires Boyle to pay all costs associated with the first mortgage, although not with the home equity line, the district court did not abuse its discretion in finding that late-payment fees and penalties were properly characterized as spousal maintenance under the judgment.

3.  Due Process


Boyle challenges (1) the lack of an opportunity to be heard and cross-examine McNattin and (2) the lack of notice that the reasonableness of McNattin’s fees was at issue at the June 25 hearing.  Any procedural defect in the consideration of McNattin’s fees was cured by the decision of the district court to grant Boyle’s motion to reconsider and the subsequent hearing when Boyle was afforded an opportunity to cross-examine McNattin.  Boyle’s due process challenge is groundless. 

4.  Consideration of McNattin’s fees

Boyle argues that his constitutional right to a jury trial was violated by the district court’s consideration of McNattin’s fees because the fee obligation, if any, arose out of a contract claim.  The application of undisputed facts to the law is a question of law and is reviewed de novo.  Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn. 1992).

Here, the district court stated that it was merely enforcing its prior order providing for the appointment of a parenting consultant who had the same authority as a parenting-time expeditor.  Cf. Minn. Stat. § 518.1751, subd. 2a (2002) (allowing equitable reapportionment of visitation expeditor).  But the district court’s order and McNattin’s motion appear to place all of the disputed fees and costs on Boyle even though the judgment requires an equal split of these expenses.  It is unclear from the record and the district court’s order exactly how, or even if, the costs were apportioned.  Further, McNattin’s motion relies on the agreement she made with Boyle, not on the judgment.  Absent some other order from the district court, the judgment requires McNattin’s fees to be split equally between the parties, and we remand to the district court to determine whether its award was based on the original judgment or the subsequent agreement between Boyle and McNattin and to take appropriate action.  We leave to the sound discretion of the district court whether to allow the parties to supplement the record.  Because, on this record, we are unable to determine the basis for McNattin’s motion and the district court’s order, Boyle’s argument that he was entitled to a jury trial is premature and we decline to address it.

            Affirmed in part, reversed in part, and remanded.