This opinion will be unpublished and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

A05-2295/A06-416

 

In re the Marriage of:

 

Dareth Molde, petitioner,

Respondent,

 

vs.

 

Troy Molde,

Appellant.

 

 

Filed September 19, 2006

Affirmed

Worke, Judge

 

Rice County District Court

File Nos. F4-04-484 & F8-04-484

 

Mark A. Olson, 2605 East Cliff Road, Suite 100, Burnsville, MN 55337 (for appellant)

 

Julie K. Seymour, 108 Professional Plaza, 1601 East Highway 13, Burnsville, MN 55337 (for respondent)

 

 

            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

In these consolidated appeals, appellant argues that the district court erred in its temporary order by (1) failing to use the Hortis/Valento formula to set appellant’s child-support obligation; (2) ordering appellant to pay temporary maintenance without finding that appellant had the ability to pay maintenance and that respondent was in need of maintenance; and (3) apportioning the debt on certain real property to appellant.  Appellant also argues that it was improper for the district court to vacate portions of the judgment because (4) the district court lacked authority to do so while the appeal of the temporary order was pending; (5) respondent’s motion did not satisfy Minn. R. Gen. Pract. 303(a) (1); (6) respondent was allowed to submit documentation; (7) appellant was not afforded an evidentiary hearing; and (8) the district court did not have jurisdiction over maintenance because of the parties’ waiver.  Finally, appellant argues that the district court abused its discretion by denying appellant’s motion for attorney fees.  We affirm.

D E C I S I O N

Temporary Order

           Appellant Troy Molde challenges provisions in the district court’s temporary order.  A temporary order in a dissolution case is not appealable.  Rigwald v. Rigwald, 423 N.W.2d 701, 705 (Minn. App. 1988).  It is reviewable, however, to the extent it “affect[s]” the order from which the appeal is taken.  Minn. R. Civ. App. P. 103.04.   Appellant appeals from the judgment and decree, which the temporary order affected.

            Temporary child support 

 

            Appellant argues that the district court abused its discretion in making its temporary child-support award by failing to use the Hortis/Valento formula for setting support.  A district court is permitted to grant temporary child support for the children of the parties pending the final disposition of the proceeding.  Minn. Stat. § 518.131, subd. 1(c) (2004).  The district court has broad discretion in determining child-support obligations, and its decision will not be reversed absent an abuse of that discretion.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). 

            In determining temporary child support, the district court shall be guided by the factors set forth in Minn. Stat. § 518.551 (2004).  Minn. Stat. § 518.131, subd. 7 (2004).  When parents have joint physical custody, the Hortis/Valento formula is the presumptive method for setting support.  Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn. App. 2001).  “Under that formula, the guideline child support [obligation] is the amount indicated by the guidelines, but only for the periods of time that the other parent has actual custody of the children.” Id.  In addition to the child-support guidelines, the court shall consider the following factors when setting child support or when determining whether to deviate from the guidelines:

(1) all earnings, income, and resources of the parents, including real and personal property, . . . ;

(2) the financial needs and resources, physical and emotional condition, and educational needs of the child or children to be supported; [and]

(3) the standard of living the child would have enjoyed had the marriage not been dissolved, but recognizing that the parents now have separate households[.]

 

Minn. Stat. § 518.551, subd. 5(c) (2004).

 

            The district court granted the parties temporary joint legal and physical custody of their children and ordered appellant to pay respondent Dareth Molde $650 per month in temporary child support.  Appellant contends that the award was not fair because the parties’ incomes were misrepresented; respondent’s income was more than the district court relied on and his income was less than the amount relied on.  The evidence, however, supports the conclusion that the district court relied on fair representations of the parties’ incomes.  In his application for temporary relief, appellant claimed that his monthly expenses were $2,225, and despite his claim that his net monthly income was $1,026, a June 2004 paycheck attached to his application was in the amount of $6,206.15.  Appellant also indicated that he had just begun a new job and that as a realtor he anticipated making more than he set forth in his application.  Respondent claimed that her necessary monthly expenses were $2,670.83 and that her net monthly income was $1,927.37; respondent’s attached pay stubs showed that in June 2004, her net income was approximately $2,000

            Respondent requested $980 per month in child support, that appellant reimburse her for health- and dental-insurance premiums that she paid for appellant and one-half of the insurance premiums that she paid for the parties’ children, and that appellant pay her a portion of the profit from the parties’ rental property.  In reaching its award, the district court stated that it took into consideration the “needs of the parties, the earnings and earning capacities of the parties, that [appellant] is receiving the income from the rental property, and that [respondent] is providing the health and dental insurance coverage.”  Thus, even though the district court did not make specific findings, it stated what factors it considered in making its determination.  And the district court did not abuse its discretion because appellant’s income is significantly more than respondent’s, and respondent is solely responsible for maintaining health and dental insurance for the parties’ children and appellant. 

Temporary spousal maintenance

            Appellant argues that the district court abused its discretion in ordering appellant to pay temporary maintenance without finding that appellant had the ability to pay maintenance and that respondent was in need of maintenance.  A district court’s spousal-maintenance determination will not be disturbed absent an abuse of that court’s discretion.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  This court will not find an abuse of discretion unless the district court’s resolution of the matter “is against logic and the facts on record[.]” Rutten, 347 N.W.2d at 50.  

          Under Minn. Stat. § 518.131, subd. 1(b) (2004), the district court may grant a temporary order for maintenance.  In doing so, the district court is guided by Minn. Stat. § 518.552 (2004).  Minn. Stat. § 518.131, subd. 7 (2004).  The district court may grant maintenance if it finds that the spouse seeking maintenance lacks sufficient property to provide for reasonable needs of the spouse or is unable to provide adequate self-support.  Minn. Stat. § 518.552, subd. 1.  The district court stated that in determining maintenance, it considered that appellant was receiving monthly income from the parties’ rental property and that respondent was making health- and dental-insurance-premium payments.  The district court did not abuse its discretion in ordering appellant to pay respondent temporary maintenance.    

            Apportioning Debt  

 

            Appellant argues that the district court abused its discretion by apportioning the rental-property debt to appellant in the temporary order.  See Minn. Stat. § 518.131, subd. 1(e), (j) (2004) (allowing district court to use temporary order to apportion temporary use of property as well as to require one or both parties to perform acts that will facilitate disposition of proceeding).  A district court apportions debt as part of the marital-property settlement and treats the division of marital debts in the same manner as the division of assets.  Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986), review denied (Minn. May 29, 1986). The district court has broad discretion in apportioning the parties’ debt, but abuses its discretion if the findings of fact are against logic and the facts on the record.  See Rutten, 347 N.W.2d at 50 (discussing division of property).  Although the apportionment must be just and equitable, it need not be mathematically equal.  Ruzic v. Ruzic, 281 N.W.2d 502, 505 (Minn. 1979); see also Minn. Stat. § 518.58, subd. 1 (2004) (stating that “the court shall make a just and equitable division of the marital property”).   

            The district court ordered that, pending the sale of the rental property, appellant was entitled to all rental income and solely responsible for all expenses related to the rental property.  The district court’s apportionment of debt was just and equitable.  First, while appellant argues that he should not have had to assume the debt of the rental property, his attorney stated that the property netted $200 per month.  Additionally, the district court ordered respondent solely responsible for all expenses related to the homestead.  The district court did not abuse its discretion in apportioning the parties’ debt.

Vacation of Portions of the Judgment 

            Jurisdiction

            Appellant argues that the district court lacked jurisdiction to vacate portions of the judgment pending appeal of the temporary order.  Questions of subject-matter jurisdiction are reviewed de novo.  Johnson v. Murray, 648 N.W.2d 664, 670 (Minn. 2002).  Minn. R. Civ. App. P. 108.01, subd. 1, provides that “the filing of a proper and timely appeal suspends the authority of the [district] court to make any order necessarily affecting the order or judgment appealed from. [But the district] court retains jurisdiction as to matters independent of, supplemental to, or collateral to the order or judgment appealed from, and to enforce its order or judgment.”    

            On November 28, 2005, pending review of the district court’s temporary order on appeal from the dissolution judgment, respondent moved to have the judgment and decree vacated on the grounds that appellant misrepresented his net income.  The district court retained jurisdiction because respondent could not have raised the misrepresentation-of-income issue during the initial litigation.  Additionally, the claims on appeal related only to the temporary order and any order from the district court vacating portions of the judgment and decree would not affect the claims on appeal.  Cf. Angelos v. Angelos, 367 N.W.2d 518, 519 (Minn. 1985) (stating that in the practice of family law, the legislature specifically authorizes modifications of judgments on the basis of circumstances differing from those upon which the original judgment was based).

            Respondent’s Motion

              Appellant next argues that respondent’s motion did not satisfy Minn. R. Gen. Pract. 303(a)(1) because it did not include a supporting affidavit, and, therefore, it was improperly considered by the district court.  Under Minn. R. Gen. Pract. 303.03(a)(1),

No motion shall be heard unless the initial moving party pays any required motion filing fee, serves a copy of the following documents on opposing counsel, and files the original with the court administrator at least 14 days prior to the hearing:

 

(i) Notice of motion in form required by Minn. Gen. R. Pract. 303.01(a);   

                                    (ii) Motion;

                                    (iii) Any relevant affidavits and exhibits; and

                                    (iv) Any memorandum of law the party intends to submit.

 

If a moving party fails to comply with the requirements of this rule, the district court may cancel the hearing, refuse to permit oral argument by the party failing to file required documents, consider the matter unopposed, allow attorney fees, or take other appropriate action.  Id.303.03(b).  Here, the district court did not take any adverse action.  Additionally, the rule does not require that an affidavit be filed.  The rule requires filing of any relevant affidavits and exhibits.  Id. 303.03(a)(1)(iii).  Respondent did not file an affidavit, but filed a memorandum of law with attached exhibits.  Thus, respondent complied with the requirements of Minn. R. Gen. Pract. 303.03(a)(1), and the district court properly considered respondent’s motion. 

            Evidentiary Ruling

            Appellant next argues that his due-process rights were violated when the district court received documents into evidence on the day of the hearing on respondent’s motion to vacate the judgment and decree.  Procedural and evidentiary rulings are within the district court’s discretion and are reviewed for an abuse of discretion.  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).  Claims of denial of due process are reviewed 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).

            Due process guarantees a party “reasonable notice, a timely opportunity for a hearing, the right to be represented by counsel, an opportunity to present evidence and argument, the right to an impartial decision-maker, and the right to a reasonable decision based solely on the record.”  Humenansky v. Minn. Bd. of Med. Exam’rs, 525 N.W.2d 559, 565 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995). 

            Respondent submitted MLS listings of properties showing that appellant sold and brokered almost $5 million in sales in 2005.  Appellant’s counsel objected to the document, arguing that it was not relevant.  Appellant filed a responsive motion and was aware of the issue that was going to be raised at the hearing.  Nevertheless, appellant failed to offer anything to challenge respondent’s document, despite having an opportunity to contest it.  Further, after reopening the judgment and decree, the district court provided the parties time to conduct additional discovery and scheduled a settlement conference and a one-day trial.  The district court did not abuse its discretion in receiving respondent’s document and did not deny appellant his due-process guarantees.

            Evidentiary Hearing

            Appellant also argues that the district court improperly vacated portions of the judgment and decree without first holding an evidentiary hearing.  A district court’s decision regarding whether to reopen a judgment will be upheld unless the court abused its discretion.  Harding v. Harding, 620 N.W.2d 920, 922 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001). 

            The district court vacated and reopened portions of the judgment and decree that related to child support and spousal maintenance after determining that appellant “substantially misrepresented his net income at the time of trial and that the misrepresentation arose to the level of ‘fraud on the court.’”  Under Minn. Stat. § 518.145, subd. 2 (2004), a district court may reopen a judgment and decree because of “mistake, inadvertence, surprise, or excusable neglect”; “newly discovered evidence”; fraud; misrepresentation; or because “the judgment and decree or order is void” or “the judgment has been satisfied, released, or discharged[.]”  A district court’s findings regarding misrepresentations are reviewed for clear error.  Sanborn v. Sanborn, 503 N.W.2d 499, 504 (Minn. App. 1993), review denied (Minn. Sept. 21, 1993). 

            The district court’s findings are not clearly erroneous.  For purposes of the judgment and decree, the parties stipulated that appellant’s net monthly income was $3,281.  However, an advertisement indicated that appellant and his brother-in-law sold more than $20 million in property in 2005 and that he was one of the top one percent of realtors nationwide.  Respondent presented MLS listings showing that appellant sold and brokered $4,928,398 in sales.  Appellant did not provide the district court with any evidence to counter respondent’s submissions.  Additionally, nothing in Minn. Stat. § 518.145 requires the district court to conduct an evidentiary hearing before reopening a judgment and decree.  Finally, appellant is being provided an opportunity to be heard at a settlement conference as well as a trial.  The district court did not abuse its discretion by vacating and reopening portions of the judgment and decree.

Jurisdiction over Maintenance

 

            Appellant argues that the district court lacked jurisdiction over maintenance and, therefore, could not vacate that portion of the judgment and decree.  In the judgment and decree, each party waived any right to have the other pay temporary or permanent maintenance and agreed that the waiver divested the district court of jurisdiction to modify maintenance in the future.  When a district court approves a fair and reasonable stipulation in which the parties expressly waive their rights to modify the maintenance terms of the judgment and decree, the stipulation is enforceable and courts may not later modify the stipulated provision.  Minn. Stat. § 518.552, subd. 5 (2004).  But here, the district court determined that appellant’s misrepresentations amounted to fraud on the court and were sufficient to reopen the judgment; thus, the district court had discretion to vacate the stipulation.  See Maranda v. Maranda,449 N.W.2d 158, 164 (Minn. 1989) (stating that although district courts favor stipulations, it is within the district court’s discretion to vacate a stipulation). 

Attorney Fees

 

 Appellant argues that the district court erred in denying his motion for attorney fees.  A district court may impose attorney fees when a litigant unreasonably contributes to the length or expense of the proceeding.  Minn. Stat. § 518.14, subd. 1(1) (2004).  To award conduct-based fees, the court must identify the offending conduct.  Geske v. Marcolina, 624 N.W.2d 813, 815 (Minn. App. 2001).  Additionally, the conduct must have occurred during litigation, and it must be found to have unreasonably contributed to the length or expense of the proceeding.  Id. at 819.  An award of attorney fees under Minn. Stat. § 518.14, subd. 1, “rests almost entirely within the discretion of the [district] court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).  The district court was well within its discretion.  This is especially true because appellant lost his motion and failed to assert how respondent unreasonably contributed to the length of the proceedings.

            Affirmed.