This opinion will be unpublished and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
Affirmed in part and reversed in part
Dakota County District Court
File No. F79815476
Jonathan E. Fruchtman,
Colleen Goggins King, Wornson & Goggins, P.C., 119 East Main Street, New Prague, MN 56071 (for respondent)
Richard A. Emerick, Attorney at Law, Suite 190, 2500 West County Road 42, Burnsville, MN 55337 (respondent pro se)
Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant (wife) challenges (1) the district court’s award of post-decree attorney fees to respondent (husband), (2) the grant of her former attorney’s motion for fees, asserted in post-dissolution proceedings, and (3) the amendment of the decree to alter the property division. Appellant also challenges the district court’s denial of an evidentiary hearing on parenting time and the district court’s parenting-time order. We affirm the award of attorney fees to husband, but reverse the award of attorney fees to wife’s former attorney and the order amending the decree. Because jurisdiction over parenting time is now in the juvenile court, we do not address the parenting-time issues.
The February 14, 2000 decree dissolving the marriage of appellant Linda Buttler, n/k/a Linda Goude (wife), and respondent, Craig Buttler (husband), was based on a stipulation of the parties, who were both represented by counsel. The decree awarded wife half of the marital interest in husband’s pension plan and, as consideration for wife’s waiver of maintenance, all of the marital interest in husband’s 401(k) plan. Wife was awarded sole legal and physical custody of the parties’ two children, subject to husband’s scheduled parenting time.
There have been numerous post-trial
motions and responsive motions concerning the children, including wife’s motion
to allow her to relocate to
Wife hired respondent-attorney Richard Emerick to draft qualified domestic relations orders (QDROs) to transfer husband’s interest in the 401(k) and pension plans to her. Because wife had no available assets to pay Emerick’s fees, wife agreed to assign part of her interest in these plans to satisfy his fees. Emerick drafted the assignment, but wife never signed it. Wife inconsistently asked Emerick to work on issues involving the children, but failed to follow through on agreements that she had Emerick enter into with husband’s attorney. Emerick drafted and filed the QDROs but soon withdrew as wife’s attorney.
In April 2004, the district court ordered the guardian ad litem (GAL) to recommend conditions for parenting time, a parenting-time schedule, and whether the children needed therapy. The district court stated that the GAL’s recommendations would become the order of the district court unless a party served and filed written objections within 30 days after the filing of the GAL’s written report.
In July 2004, Emerick, who no longer represented wife and was not otherwise a party to the dissolution action, filed a motion in the dissolution action for an award of attorney fees against wife, citing Minn. Stat. § 518.14 (2004), and requested that the judgment be amended to allow him to secure payment of the award with the 401(k) and pension plan awarded to wife. Husband moved to have wife held in contempt again for restricting and prohibiting parenting time and moved for an award of attorney fees for the current motion and for the February contempt motion. Based on an ex parte order that wife obtained from another judge, which wife manually altered so that it purported to revoke both husband’s parenting time and the contempt order, wife moved to have husband held in contempt.
The district court scheduled a hearing for July 15, 2004. Because wife faced the possibility of incarceration for failing to abide by the prior contempt order, a public defender was appointed to represent her on husband’s contempt motion. The GAL submitted a report on July 8, 2004, recommending that the children enter therapy and that parenting time with husband be supervised and on a voluntary basis determined by the children.
At the July 15, 2004 hearing, wife was represented for purposes of husband’s contempt motion but was otherwise pro se. Husband was represented by counsel, and Emerick represented himself. The transcript of the hearing reveals the district court’s frustration with wife’s ongoing refusal to follow the court orders “even to the extent that she modified in her own hand the order of the Court.” Emerick briefly reviewed his motion. Wife, who had not responded to Emerick’s motion prior to the hearing, stated that Emerick “did an unacceptable job in representing me and I don’t plan to pay him.”
Husband, through counsel, argued his motion for attorney fees and, with regard to his contempt motion, requested that wife’s jail sentence continue to be stayed on condition that parenting time be reinstated on the same terms that were contained in the judgment, with a slight modification. Wife objected to husband’s proposed parenting-time schedule, arguing that husband had failed to serve and file a written objection to the GAL’s recommendations as previously directed by the court. Wife argued that, under the district court’s prior order, the GAL’s findings must become the order of the district court. But the district court determined that husband’s handwritten objection to the GAL’s recommendation, submitted at the hearing, along with husband’s oral request at the hearing, satisfied the condition of the court’s prior order to serve and file written objections to the GAL’s recommendations within 30 days.
Because wife had allowed the children to visit husband for approximately a week prior to the hearing, the district court concluded that there was “a significant purging of [the] earlier finding of contempt.” From the bench, the district court stated it would
vacate the QDRO since apparently it’s not being acted upon. The Judgment and Decree will be amended to provide that [husband] shall have an award of that 401(k) and attorney’s fees as submitted by [husband’s attorney] and Mr. Emerick shall be deducted from that and then the balance returned to [husband].
Wife asked, “You’re vacating the QDRO? . . . So what portion do I get in the QDRO? That was my pension.” The district court affirmed that it was vacating the QDRO but stated, “You get your pension.[] That’s in the decree . . . the attorney’s fees are coming out of the . . . 401(k) . . . .” The district court also orally adopted husband’s requested visitation schedule.
By written order dated July 20, 2004, the district court vacated the QDROs and ordered that no subsequent QDRO be issued, unless issued by the judge whose signature is on the order. By written order dated July 27, 2004, the district court dismissed husband’s motion to have wife held in contempt but continued the February 26, 2004 contempt order, granted husband’s request for attorney fees for the February and July hearings without citing the basis of the awards, awarded parenting time as requested by husband, and ordered the children to begin family therapy immediately. By written order dated July 29, 2004, the district court determined the amount of attorney fees awarded to husband’s attorney to be $5,507.41, and awarded Emerick attorney fees and costs in the amount of $4,361.90, stating that wife was in default on Emerick’s motion and the fees requested were reasonable. The district court awarded Emerick an additional $2,500 for “time spent in collection of this account through the hearing date of July 15, 2004 . . . in accordance with the actions of [wife] and lack of good faith toward payment of her fees to Mr. Emerick, and in accordance with the Retainer Agreement signed by [wife] with Mr. Emerick.” This order also provides that the dissolution decree is amended
based upon the activities of [wife] throughout this matter, the incurrence of attorney’s fees by [husband] because of the action of [wife], the treatment by [wife] of her counsel in an apparent attempt of [sic] secure attorney services, promising payment from these QDRO funds and not fulfilling any payment whatsoever once the QDROs were completed and [wife] maintaining that [she] has no basis or means of making payment except through the funds available through those QDROs.
. . . .
. . . [T]he Decree [is] amended to grant all interest in [husband’s] 401(k) plan as valued as of December 1, 1999 to [husband] and the one-half interest in the marital portion of [husband’s] pension plan as valued as of December 1, 1999 to [husband.]
The order further requires husband to promptly pay his attorney, pay Emerick, and pay any tax liability incurred by withdrawal of the funds, “from the 401(k) and Pension Plan awarded to him herein.” The order provides that after disbursement of these funds, husband is awarded half of the remaining funds and the other half “shall be held in trust by [husband] awaiting any further Order of their award and disbursement by this Court.”
Shortly after the July 15 hearing, wife reported to the police that the children were plotting to kill husband. Based on this report, Dakota County Social Services filed a petition alleging that the children are in need of protection or services of the court (CHIPs). The children have been adjudicated CHIPs, and at the time of this appeal were in foster care.
Wife moved for amended findings or a “new trial” relating to the orders issued after the July 15 hearing and requested an evidentiary hearing on visitation. Husband and Emerick opposed the motion and moved for additional attorney fees. The motions were heard on September 24, 2004. The district court issued an order and judgment on October 4, 2004, with 58 findings detailing the procedural history of the case, and finding that:
55. [Wife] has abused the court system and legal process incessantly over a long period of time and, as such has caused the county and [husband] to incur outrageous expense for the resultant ongoing litigation.
56. [Wife’s] conduct in these proceedings warrants a significant award of attorney fees and costs to [husband] and her former counsel, [Emerick].
The district court denied wife’s motions for amended findings or a “new trial.” The district court also denied wife’s motion for vacation of the parenting-time order and for an evidentiary hearing on parenting time, stating that jurisdiction over parenting time is “now [with] the Juvenile Court in the CHIPs proceeding” and transferring all further determinations regarding custody, parenting time, and child support to the juvenile court. The district court awarded husband an additional $1,500 in conduct-based attorney fees and awarded Emerick an additional $1,000 “for [wife’s] failure to compensate her former attorney for services rendered which inured to the use and benefit of [wife].” This appeal from the July 2004 orders, and the October 2004 order and judgment followed.
We review an award of conduct-based attorney fees awarded pursuant to Minn. Stat. § 518.14, subd. 1 (2004), under an abuse-of-discretion standard. Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).
Wife argues that the district court failed to state a basis for the award of attorney fees to husband. We conclude that this argument is without merit because the record sufficiently indicates that the district court judge, who was extremely familiar with both of the parties and the proceedings, awarded conduct-based fees to husband.
Wife argues that conduct-based fees are not warranted because her interference with visitation did not occur within the legal proceeding itself. See Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn. App. 2001) (stating that conduct-based fees are to be based on behavior occurring during the litigation process and remanding the district court’s award for determination of particular conduct during litigation and a party’s “responsibility for the visitation issues”). But at the July 15 hearing, the court specifically referred to wife’s alteration of a court document, and the October 2, 2004 order denying relief from the award recites wife’s multiple motions and cancellation of motions and sets out in great detail the conduct that gave rise to the award of fees. Review of these findings, even without a specific citation to the authority for awarding the fees, leaves no doubt that the district court awarded conduct-based attorney fees under Minn. Stat. § 518.14, subd. 1, and any error in failing to identify the statute under which fees were awarded was harmless. See Gully v. Gully, 599 N.W.2d 814, 825-26 (Minn. 1999) (finding that district court’s language, along with district court judge’s familiarity with the history of the case, was sufficient to uphold award of need-based attorney fees because the language used reasonably implied such a result). The record supports the award of conduct-based attorney fees to husband.
II. Award of attorney fees to Emerick
argues on appeal that an attorney cannot use Minn. Stat. § 518.14 as a method
to collect fees from the attorney’s own client.
We decline to reach this issue and instead focus on the failure of
Emerick to intervene in this action prior to asserting his motion. See
intervening in that action. In the absence of any authority, we conclude that under the facts and circumstances of this case, the district court erred in allowing Emerick, a non-party, to bring a motion in this dissolution action and erred by granting the relief sought.
III. Amendment of property division to pay attorney fee awards
Because Emerick lacked standing to
assert a motion for attorney fees in the dissolution action, the district court
erred by granting his motion to amend the property division to provide for
payment of his attorney fees. The
redistributed funds were also ordered to be applied to husband’s attorney-fee
award, even though husband did not request such relief. On appeal, husband argues that the district
court had authority to order an amendment to the dissolution judgment to satisfy
his fee award because the district court always retains inherent authority to
issue orders to implement, enforce, or clarify the provisions of a decree,
provided that it does not alter the parties’ substantive rights, citing Kornberg v. Kornberg, 542 N.W.2d 379,
Although Minn. Stat. § 518.14 provides that the district court “may authorize the collection of money awarded under § 518.14 by execution, or out of property sequestered, or in any other manner within the power of the court,” husband did not seek such relief in the district court. Because the district court erred by granting Emerick’s motion to amend the decree, we reverse the orders awarding fees to Emerick and the order amending the decree to provide for payment of Emerick’s and husband’s attorney-fee awards.
IV. Parenting time
Wife argues that the district court
abused its discretion by ignoring its own order stating that, absent objections
to the GAL’s recommendations that were served
and filed, the GAL’s recommendations would become the district court’s
order. And wife argues that the district
court abused its discretion by establishing a visitation schedule without
conducting an evidentiary hearing. But
jurisdiction over parenting time is currently in the juvenile court. See
Affirmed in part and reversed in part.
 The ex parte order was vacated on July 7, 2004.
 The dissolution judgment awarded wife all pension and retirement interests in her name and this award was not affected by the amendment to the judgment.
 Two QDROs were filed in the district court by Emerick. Though the court only made reference to a single QDRO at the hearing, both QDROs were subsequently vacated.
 At oral argument before this court, counsel for husband clarified that the result of the order was to award husband all interest in his pension plan.
 The district court does specifically identify Minn. Stat. § 518.14 in its award of attorney fees to Emerick.
 Emerick asserted at oral argument that such motions are common in the jurisdiction in which he practices.