This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2153

 

In re the Marriage of:
Pauline Vivian Milner, petitioner,
Respondent,

vs.

Dick Gerboth Milner,
Appellant.

 

Filed August 9, 2005

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. DW 221217

 

Dick G. Milner, 10505 Eighth Avenue North, Apt. 102, Plymouth, MN  55441 (pro se appellant)

 

Pauline V. Milner, 2400 Rhode Island Avenue North, Apt. 506, Golden Valley, MN  55427 (pro se respondent)

 

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

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this pro se appeal from a judgment for maintenance arrearages and directing that a portion of future maintenance payments be withheld from appellant-husband’s Social Security income, husband contends that (1) respondent-wife tried to kill him by giving him betaine hydrochloride pills daily; (2) the order for maintenance was caused by fraud and conspiracy to commit fraud by wife and her attorney failing to declare all of her marital assets during trial; and (3) husband is entitled to a share of the proceeds from wife’s sale of the home that she was awarded in the original dissolution judgment.  We affirm.

FACTS

            The parties’ 35-year marriage was dissolved by a judgment and decree entered on February 23, 1998.  At the time of dissolution, respondent-wife Pauline V. Milner was 76 years old, and appellant-husband Dick G. Milner was 73 years old.  The dissolution judgment required husband to pay wife permanent spousal maintenance of $350 per month.

            In February 2000, husband brought a motion alleging that wife had failed to disclose marital assets during the dissolution trial.  Following an evidentiary hearing, by order filed January 17, 2001, the district court found that wife had failed to disclose eight $1,000 savings bonds owned jointly with her daughter that were cashed in by daughter for $4,800 on August 12, 1999, nine days after the Department of Treasury notified wife that husband had been informed of the bonds’ existence.  The court found that daughter’s testimony that she had given mother cash to buy the bonds lacked credibility.  The district court also found that the evidence was insufficient to prove that wife had an account with AARP Investments with a balance of $32,181.56 but noted that wife “exercised control over more marital investment assets than had been revealed at trial” and that husband’s suspicions regarding the AARP account were “not unfounded.”  The district court awarded husband judgment in the amount of $2,400 and $6,183.25 for attorney fees.

            In 2002, husband filed motions and affidavits again alleging that wife had failed to disclose marital assets and seeking discovery.  In an order filed December 11, 2002, the district court found:

            [Husband’s] written pleadings regarding concealment of assets are incomprehensible to the court.  However, at the hearing the court asked [husband] simply to show the court any documents establishing accounts of [wife] which he claims were in existence at the time of the dissolution and which were not disclosed to him.  Of the documents shown to the court, all were from several years before the dissolution or they were from accounts in [husband’s] own name.

 

            In December 2002 and February 2003, husband filed motions to reduce maintenance.  In a March 24, 2003 order, the district court found:

            1.  This matter is before the court on [husband’s] motion to reduce spousal maintenance.  In effect, this is a motion to reopen the Judgment and Decree on grounds of fraud on the court, on the theory that [wife] failed to disclose her assets at the time of the dissolution proceedings in front of Judge Duffy in 1997.  Thus, this motion is a replay of [husband’s] motion heard [on November 18, 2002] and which was denied by Order of December 9, 2002.  Nonetheless, the court has considered [husband’s] motion . . . . 

 

. . . .

 

            3.  The court did follow up at the hearing on two contentions made by [husband] in his affidavit, i.e., numbers 4 and 5, in which he asserts that [wife] had IRA funds in two separate accounts not disclosed to Judge Duffy at Finding L of the Judgment and Decree, which sets forth the elements of the marital estate.  The court credits [wife’s] testimony at the hearing that there was only one account, which changed account numbers when the certificate of deposit matured and a new one was issued, and that the money in this single account was spent by her prior to the dissolution for living expenses because she was receiving no assistance from [husband].

 

            . . . .

 

            5.  Because [husband] is representing himself, the court again allowed [husband] at this hearing to show the court any documents which he believed established the existence of assets of [wife] not disclosed to the court.  Much of [husband’s] answer was not comprehensible to the court.  However, [husband] did refer the court to [wife’s] affidavit of December 21, 2001, where at paragraph 3 she states that she discovered a statement for Marquette Bank Account No. 10007236 in the amount of $9,289.58 in the house after [husband] left.  The court was shown the account statement for Marquette Bank Account No. 10007276, which is in [husband’s] name for the same exact amount.  [Husband] contended that there really were two accounts and that if one was in his name the other must have been in [wife’s] name, and that account was never disclosed to Judge Duffy.  However, the logical explanation is that [wife’s] affidavit simply contains a typographical error and was referring to [husband’s] account.  The court credits [wife’s] testimony at the hearing that they never had matching accounts and she never owned the account attributed to her by [husband].

 

            In April 2003, husband filed another motion to reduce maintenance.  In an order filed July 30, 2003, the district court found:

            1.  [Husband] has moved to modify his maintenance obligation.  The grounds he asserts, however, are the same as those asserted at the hearings on November 18, 2002, and March 18, 2003, and which he attempted to assert at the hearing on January 15, 2003, i.e., that [wife] hid money from him.  He now contends that she is a member of a racketeer influenced and corrupt organization as defined in the RICO statute.  [Husband] has relied on essentially the same documents each time.  He seems obsessed that [wife] defrauded him, and the court has serious concerns about his ability to understand and meaningfully participate in these proceedings without the assistance of counsel.

 

            2.  At the hearing [husband] requested permission to take testimony from [wife], which he said would prove his case.  He agreed to the court’s suggestion that he take 20 minutes of testimony.  If, during that time he could establish a reason to believe that [wife] had defrauded him, the court would allow him more time.  If he could not do so, he agreed that he would not bring further motions based on [wife] hiding assets from him.  [Husband] did question [wife] on the stand, and the court ultimately allowed him 35 minutes.  He established no reason to believe that [wife] had defrauded him.  He relied exclusively on documents dated long before the divorce, which have no bearing on whether at the time of the divorce [wife] had assets in her name that were not disclosed in the divorce proceeding.

 

Based on husband’s agreement, the district court ordered that husband “is prohibited from bringing any further motions based on the theory that [wife] concealed assets from him during their dissolution proceeding.”

            In February 2004, husband again moved to modify maintenance, alleging that wife had defrauded him and engaged in conspiracy to defraud him and also alleging that his earnings had substantially decreased.  In an order filed March 8, 2004, the district court, adopting a referee’s recommendations, found that (1) husband did not make a prima facie case of decreased earnings; (2) husband’s claim of decreased earnings was a subterfuge; and (3) fraud and RICO claims were the true basis for the motion.  Based on the July 2003 order prohibiting husband from bringing a motion on the theory that wife concealed assets during the dissolution proceeding, the district court ordered the motion stricken without hearing.  In an order filed May 4, 2004, the district court denied husband’s notice of review and adopted the referee’s findings as its own.

            In September 2004, husband moved to modify maintenance.  In addition to alleging fraud claims, husband alleged that his expenses had increased and that he should not have to continue paying maintenance because wife had sold her home.  The parties’ homestead was awarded to wife in the division of marital property in the dissolution judgment.  At the time of dissolution, the total value of the parties’ marital assets was $166,028, with the homestead valued at $68,500.  The dissolution judgment awarded the parties equal shares of the marital estate. Wife sold the homestead for $177,000 in July 2004.

            Wife filed a cross-motion seeking a judgment for maintenance arrears.  Husband voluntarily withdrew his modification motion, and the motion was not heard by the district court.

            In an order filed November 2, 2004, the district court did not specifically address husband’s fraud claims.  The district court continued maintenance at $350 per month, ordered $200 per month to be withheld from husband’s Social Security income, and awarded wife judgment in the amount of $3,527.25 for maintenance arrears.  Judgment was entered on November 8, 2004.

            Husband filed a notice of appeal from the November 2, 2004 order.  This court issued an order construing the appeal to be from the November 8, 2004 judgment.

D E C I S I O N

“Pro se litigants are generally held to the same standards as attorneys.”  Heinsch v. Lot 27, Block 1 For’s Beach, 399 N.W.2d 107, 109 (Minn. App. 1987).  But absent prejudice to the opposing party, this court will allow a “reasonable accommodation” to a pro se litigant.  Kasson State Bank v. Haugen, 410 N.W.2d 392, 395 (Minn. App. 1987).

            Husband argues that wife administered betaine hydrochloride pills to him, causing him to contract Barrett’s Esophagus, which can result in esophageal cancer.  The record contains an exhibit showing a picture of bottles of betaine hydrochloride and listing information about them, including quantity, expiration date, and brand.  The exhibit indicates that betaine hydrochloride is an over-the-counter vitamin.  No evidence in the record indicates that wife secretly administered betaine hydrochloride to husband or that ingestion of betaine hydrochloride was the cause of his Barrett’s Esophagus.  Therefore, husband’s claim fails on the merits.

            The November 2, 2004 order and the resulting judgment do not specifically address husband’s fraud claims.   But given the July 30, 2003 prohibition against husband bringing any further motions based on the theory that wife concealed assets during the dissolution proceeding, we construe the failure to address the fraud claims as a finding that the fraud claims were prohibited.  The district court may limit or preclude the initiation of vexatious litigation.  See, e.g., State ex rel.  Ryan v. Cahill, 253 Minn. 131, 134, 91 N.W.2d 144, 147 (1958) (“[i]t is well settled that the courts of this state will act to enjoin vexatious litigation”); Love v. Amsler, 441 N.W.2d 555, 560 (Minn. App. 1989) (requiring party to obtain judicial permission to file future lawsuit was “reasonable way to curb [the party’s] . . . abuse of the system without unduly restricting his right of access to the courts”), review denied (Minn. Aug. 15, 1989);  Liedtke v. Fillenworth, 372 N.W.2d 50, 52 (Minn. App. 1985) (“trial court acted within its discretion by enjoining appellant from continuing this series of vexatious lawsuits”), review denied (Minn. Sept. 13, 1985).  The district court must “reasonably” apply a prospective restriction on litigation.  Love, 441 N.W.2d at 560.

            The record demonstrates that the district court has repeatedly and carefully considered husband’s fraud claims.  Husband did not present any new evidence to support his current fraud claims.  The prohibition against husband bringing claims based on wife allegedly concealing assets is a reasonable prospective restriction on litigation, and the district court simply enforced the restriction when it failed to address husband’s current fraud claims.

            Husband cites no authority to support his contention that he is entitled to a share of the increase in value of the homestead that occurred between the time of dissolution and the time of its sale.  To obtain relief on appeal, the party seeking reversal must show both error and that the error was prejudicial.  Toughill v. Toughill, 609 N.W.2d 634, 638 (Minn. App. 2000).

            Husband argues that he should not be required to pay maintenance because wife sold her home.  “[C]ourts normally do not expect spouses to invade the principal of their investments to satisfy their monthly financial needs.”  Fink v. Fink, 366 N.W.2d 340, 342

(Minn. App. 1985).  Husband has failed to show that the district court erred in continuing maintenance at $350 per month and awarding wife judgment for maintenance arrears.

            Affirmed.