This opinion will be unpublished and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
In re the Marriage of:
Dareth Molde, petitioner,
Filed September 19, 2006
Rice County District Court
File Nos. F4-04-484 & F8-04-484
Mark A. Olson,
Julie K. Seymour, 108 Professional Plaza,
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
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
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 (
Temporary child support
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 (
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 (
(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[.]
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 (
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.
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 (
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
Appellant argues that the district court lacked jurisdiction to
vacate portions of the judgment pending appeal of the temporary
of subject-matter jurisdiction are reviewed de novo. Johnson
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 (
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
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:
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
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 (
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.
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 (
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 (
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
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 (
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 (