This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re the Marriage of:
Marvin Frank Johnson, petitioner,
Joyce Presley Johnson,
Filed May 24, 2005
Affirmed; motions denied
Polk County District Court
File No. F1-03-652
Michael L. Jorgenson, Charlson & Jorgenson, P.A., 119 West 2nd Street, P.O. Box 506, Thief River Falls, MN 56701 (for respondent)
Joyce Presley Johnson,
Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.
Appellant challenges the district court’s distribution of property in a marital dissolution action arguing that (1) the property division inequitably favors respondent and is unsupported by the record; (2) the award deprived appellant of her property without due process of law; and (3) the property division should be vacated because respondent’s failure to provide adequate information constituted fraud on the court. Because the property distribution was not inequitable, was reasonably supported by the record, and did not violate due process, and because there is no evidence of fraud by respondent, we affirm.
Appellant Joyce Presley Johnson and respondent Marvin Frank Johnson were married in September 1996. Each party had been married before and the couple have no children in common. Respondent filed a marital-dissolution petition on May 5, 2003. Appellant also filed a marital-dissolution petition, and the cases were combined for trial.
Trial was held in November 2003. At the time of trial, respondent was 69 years old, retired, and unable to work due to a variety of medical problems. Appellant was then 57 years old and owned an insurance agency, through which she acted as an agent for Farmers Union Insurance.
In March 2004, the district court filed a judgment dissolving the marriage and dividing the parties’ property. Respondent was awarded $255,066 in nonmarital assets and $31,517 in marital assets. Appellant was awarded $35,799 in nonmarital assets and $39,981 in marital assets. Respondent was also ordered to pay appellant $35,750. In support of the cash payment, the district court noted that the parties had been married for six years and that appellant was 57 years old and “her health [was] uncertain.” But the district court determined that appellant was “not entitled to any greater award because she came into the marriage with substantial pre-marital debt that was liquidated during the marriage through the use in part of marital assets and [respondent’s] pre-marital assets.”
Respondent then moved to amend the district court’s order to eliminate the $35,750 payment to appellant. Appellant brought a counter-motion, seeking an increase in the amount of this payment. Respondent argued that such payment was inequitable because he would have to pay it from his nonmarital assets. Respondent further asserted that a comparison of the assets that he had at the time of the marriage with those that he had at the time of the dissolution demonstrated that he had suffered a net loss during the marriage. By way of contrast, respondent pointed out that appellant’s net worth, which was negative prior to the marriage, was over $100,000 at the time of the divorce.
The district court heard arguments on the motions and on July 7, 2004, filed amended findings of fact, conclusions of law, order for judgment, and judgment and decree. The amended decision eliminated the $35,750 property-settlement payment to appellant.
This appeal followed. After both parties submitted briefs, appellant filed a document on December 20 entitled “How respondent’s brief clarifies perjury.” By order, this court construed appellant’s “motion” as a reply brief. To the extent that appellant’s “motion” sought to strike portions of respondent’s brief, its resolution was deferred to the panel.
On April 8, 2005, only five days before the consideration of the case by this court, and well after the time to file additional briefs had run, appellant submitted a reply brief along with a motion to accept it. Respondent opposes this motion, noting that appellant’s brief is untimely, that any extension should have been sought before the filing deadline pursuant to Minn. R. Civ. App. P. 131.02, that there is no supporting affidavit establishing good cause, and that the court has already treated the earlier submission as the reply brief, so a second “reply brief” should not be accepted.
We begin by considering appellant’s motion to accept
her late reply brief. Appellant’s brief
is untimely, and she has failed to establish good cause for its acceptance. See
Heinsch v. Lot 27, 399 N.W.2d 107, 109 (
We next consider appellant’s motion to strike
portions of respondent’s brief. Although
appellant’s “motion” is not in the proper form, this court construed it as a
reply brief and, to the extent that appellant seeks to strike parts of
respondent’s brief, deferred the question to this panel. “The papers filed in the [district] court,
the exhibits, and the transcript of the proceedings, if any, shall constitute
the record on appeal in all cases.”
Here, appellant does not argue that any of the documents referred to in respondent’s brief were not before the district court. Rather, her objection is based on her characterization of several of respondent’s submissions to the district court as fraudulent. Because the documents were part of the record and because they are central to the substantive arguments raised by appellant, they are properly before this court. Accordingly, appellant’s motion to strike is denied.
that the district court erred by classifying certain assets as respondent’s nonmarital
property and by ordering an inequitable division of the parties’ property. The district court has broad discretion in
the division of property. Bollenbach
v. Bollenbach, 285
court is to make a “just and equitable division of the marital property of the
parties.” Minn. Stat. § 518.58, subd. 1
(2004). But this division of the marital
property need not be equal. Ruzic v.
Ruzic, 281 N.W.2d 502, 505 (
acquired during marriage is presumed to be marital property. Minn. Stat. § 518.54, subd. 5 (2004). Nonmarital property is property acquired
before the marriage, property that is acquired in exchange for property
acquired before the marriage, or the increase in the value of property that was
acquired before the marriage.
the increase in the value of nonmarital property attributable to the efforts of one or both spouses during their marriage, like the increase resulting from the application of marital funds, is marital property. Conversely, an increase in the value of nonmarital property attributable to inflation or to market forces or conditions, retains its nonmarital character.
Nardini v. Nardini, 414
N.W.2d 184, 192 (
“A party seeking to establish the nonmarital character of an asset must do so by a preponderance of the evidence. In order to maintain its nonmarital character, nonmarital property must be kept separate from marital property or, if commingled, must be readily traceable.” Wopata v. Wopata, 498 N.W.2d 478, 484 (Minn. App. 1993) (citation omitted); see also Carrick v. Carrick, 560 N.W.2d 407, 413 (Minn. App. 1997) (noting that standard required is not “strict tracing” but a preponderance of the evidence). Here, appellant contends that the extensive commingling of respondent’s formerly nonmarital property had converted it to marital property.
The district court concluded that respondent had presented evidence sufficient to trace his nonmarital assets. After careful review of the financial records, the district court found:
[Respondent] owned substantial assets prior to the parties’ marriage, the proceeds of which were deposited into the parties’ joint checking account and used to acquire the homestead residence, fund most of the improvements to the property, and acquire numerous items of machinery. . . . The total proceeds from the disposition of those assets that were deposited into the parties’ joint checking account were $227,513.18.[]
In making this finding, the court specifically traced those assets contested by appellant. The district court found that these assets were owned by respondent prior to the marriage, had been sold, and the proceeds deposited into the parties’ joint checking account. The district court further concluded that the source of the money used to purchase the homestead residence and to make improvements to it “clearly had to be [respondent’s] pre-marital funds that he deposited into the parties’ joint checking account because there were no other funds available. That is also true for most of the other improvements that were made to the property.” (Emphasis added). The district court also found that the increased value of this property was “attribut[able] partly to the other improvements made during the marriage [but paid for by respondent’s premarital funds] and partly to six years of appreciation.”
The district court’s finding is neither against logic nor the facts on the record. Rutten, 347 N.W.2d at 50. Thus, the district court did not clearly err in its determination. Because respondent’s nonmarital interests in the commingled assets are traceable, they retain their nonmarital character. Carrick, 560 N.W.2d at 413; Wopata, 498 N.W.2d at 484. Whether we would have decided differently is immaterial because the district court’s division had an acceptable basis in fact and principle. Servin, 345 N.W.2d at 758. Accordingly, the district court did not err in awarding such assets to respondent.
Appellant also contends that she was deprived of her property without due process of law. We review procedural due-process claims de novo. Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn. App. 1999), review denied (Minn. July 28, 1999).
The guarantees of
due process are the same under both the federal and state constitutions. Sartori
v. Harnischfeger Corp., 432
N.W.2d 448, 453 (
Here, appellant does not contend that she did not receive notice or that she was denied a hearing. Neither does she argue that she was unable to present evidence, that the decisionmaker was not impartial, or that the district court’s decision was not based on the record. Appellant expresses dissatisfaction with the district court’s division of property, but presents no evidence that she was denied a full and fair determination of her claims. On this record, appellant has not demonstrated that her due-process rights were violated.
that the district court’s judgment must be vacated because respondent has
committed “fraud on the court.” We begin
by noting that in this case such a strenuous standard is not required. This court has previously held that “the
failure of a party to a dissolution to make a full and complete disclosure
constitutes sufficient reason to reopen the dissolution judgment for fraud,
without any showing of fraud on the court.”
Doering v. Doering, 629 N.W.2d 124, 129 (
argues that respondent committed fraud because some of the exhibits he
submitted “were handwritten or typed—with errors and no documentation to
corroborate data.” But appellant’s statements
are conclusory and do not provide evidence of fraud by respondent. We recognize that she disagrees with
respondent’s characterization of certain assets, but this is not evidence of
fraud by respondent. Moreover, a review
of the transcripts indicates that appellant did not contend, either at trial or
the motion hearing, that respondent’s submissions were fraudulent. See
Thiele v. Stich, 425 N.W.2d 580, 582 (
Affirmed; motions denied.
support, respondent cited Minn. Stat. § 518.58, subd. 2 (2002), which provides
that a party’s nonmarital assets should be invaded only when doing otherwise
would “work an unfair hardship” on the other party.
 The court also found that “[appellant] had a negative net worth at the time of the parties’ marriage,” including almost $23,000 in credit card debt.