This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-96-94

Susann Salmela, petitioner,
Appellant,

vs.

Donald E. Salmela,
Respondent.

Filed July 16, 1996
Affirmed in part, modified in part, and remanded
Stone, Judge*

Hennepin County District Court
File No. DC90539

Anthony R. Rossini, Jonathan H. Adams, Rossini & Rossini, P.A., 5353 Gamble Drive, Suite 150, Minneapolis, MN 55416 (for Appellant)

David C. Olson, Lanners & Olson, P.A., 12805 Highway 55, Suite 102, Plymouth, MN 55441 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Stone Judge.

U N P U B L I S H E D O P I N I O N

STONE, Judge

Appellant Susann Salmela claims the district court miscalculated respondent Donald E. Salmela's homestead lien. We affirm in part, modify in part, and remand.

FACTS

The parties' 1983 dissolution judgment awarded appellant maintenance. It also awarded appellant the homestead subject to respondent's lien for 25% of its equity after certain offsets. In September 1989, appellant mortgaged the property to her boyfriend. A January 1990 order made maintenance permanent and reserved the issue of the propriety of the mortgage to appellant's boyfriend. Appellant gave her boyfriend other mortgages on the property in May 1991 and April 1995. Also in April 1995, appellant sought maintenance arrears. In November 1995, respondent moved for calculation of his lien and in December, the district court found respondent's arrears, calculated his lien, and awarded appellant a net judgment of $5865.50.

D E C I S I O N

The judgment offsets respondent's lien by:

First * * * all encumbrances, including the remaining balance due on any home improvement loan the proceeds of which were substantially expended on the said property;

* * * *

Fourth, * * * the total cost of capital improvements made by [appellant] to the property * * * said improvements being defined as improvements costing $500 or more at the time made, exclusive of routine maintenance, and which substantially increased the actual market value of the property after they were made, except to the extent such costs are repaid through payment of any home improvement loan balance repaid in accordance with the provisions hereinabove[.]

1.  Appellant seeks an offset under the "all encumbrances" language of the first paragraph for the mortgages held by her boyfriend. The judgment does not give respondent input on decisions appellant makes regarding the property. See Jensen v. Jensen, 440 N.W.2d 152, 158 (Minn. App. 1989) ("A nonpossessory lienholding spouse has only those decision making rights in the former homestead as are specifically denominated in the decree."). We cannot read the first paragraph's "all encumbrances" provision to allow appellant unilaterally to reduce respondent's lien by any encumbrance she puts on the property. To do so would allow appellant inequitably to strip respondent of his lien interest. See Minn. Stat. ' 518.58, subd. 1 (1982) (district court to divide property equitably); Palmi v. Palmi, 273 Minn. 97, 104, 140 N.W.2d 77, 82 (1966) (dissolution judgments "must be construed in light of applicable statutes").

Because the fourth paragraph grants appellant an offset for "capital improvements" unless she already receives an offset for a "home improvement" under the first paragraph, the judgment equates "home improvements" with "capital improvements." The district court found that (a) appellant admitted that most of the money she borrowed from her boyfriend was "for upkeep and repairs of the property"; (b) except for a $20,000 increase in the property's value, the rest of the money appellant borrowed from her boyfriend was for "routine maintenance"; and (c) "most" of the amounts consolidated into the mortgages for which appellant seeks offsets were less than $500. These findings support a conclusion that most of the amounts for which the home was mortgaged did not represent "capital improvements" or "home improvements" for which appellant is entitled to an offset. Because appellant provided no transcript on appeal, these findings are not reviewable. See American Family Life Ins. Co. v. Noruk, 528 N.W.2d 921, 925 (Minn. App. 1995) (absent a transcript, review is limited to determining whether findings of fact support conclusions of law), review denied (Minn. April 27, 1995).

2.  The district court found that the sun room appellant added to the house cost $35,000 but added only $15,000 to the home's value. The judgment allows appellant an offset for the cost of capital improvements which "substantially increased" the home's value. The judgment does not define a "substantial" increase and such an increase could be measured in absolute terms or relative to the cost of the improvement creating the increase. Therefore, the term is ambiguous. See Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn. App. 1986) (language is ambiguous if reasonably subject to more than one interpretation; existence of ambiguity is a legal question). When interpreting ambiguous judgment provisions, "full effect" is given to what is "necessarily implied in the judgment" as well as to what is "actually expressed therein." Stieler v. Stieler, 244 Minn. 312, 319, 70 N.W.2d 127, 131-32 (1955).

The district court read "substantially increased" value to mean an increase that met or exceeded the cost of the improvement creating the increase. The district court then limited appellant's offset to the increase in the home's value caused by the sun room. Determining whether something is "substantial" by comparing it to the surrounding circumstances is consistent with case law. See State by Lord v. Pahl, 254 Minn. 349, 353-54, 95 N.W.2d 85, 89 (1959) (what was "substantial destruction" was "relative" and "gauged by the circumstances"). Given respondent's lack of input on appellant's decisions regarding the property, a lack of parity between the cost of an improvement and respondent's liability for that improvement could allow appellant to strip respondent of his lien. As noted, such a result would not be the "equitable" division of property required by Minn. Stat. ' 518.58, subd. 1. We defer to the district court's reading of what is a "substantial" increase in value and hence its $15,000 credit for the sun room. Halverson, 381 N.W.2d at 72 (deferring to district court's reading of ambiguous judgment where district court's interpretation was "entirely reasonable and supported by the evidence").

3. Appellant challenges the district court's refusal to allow her an offset for sale costs. The judgment states that if, as here, respondent's lien becomes due without sale of the property, his lien is to be calculated "as set forth above." The conditions "set forth above" state that "[u]pon sale of the property," appellant gets an offset for "all usual costs of sale." These provisions are ambiguous concerning whether sale costs are to be an offset if the property is not sold. Halverson, 381 N.W.2d at 71 (language is ambiguous if reasonably subject to more than one interpretation). Again, we defer to the district court's reading of the judgment. Id. at 72. [1]

4.  Appellant claims that the district court erred by dividing the cost of repairing a wall between two different types of offsets rather than awarding her a single, larger, offset for an "encumbrance" on the property. Because appellant is entitled to no larger an offset under her analysis than under that of the district court, any alleged error is harmless. See Minn. R. Civ. P. 61 (harmless error to be ignored).

5.  In her calculation of respondent's lien, appellant claims a $16,778 offset for "extraordinary repairs." Appellant does not, however, specifically argue this point on appeal. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (issues not briefed on appeal are waived). Were we to address the issue, we would defer to the district court, particularly in light of the lack of a transcript.

6.  Appellant claims that the district court's reading of the judgment is defective because it incorrectly assumes that the judgment was stipulated. Even if the district court based its reading of the judgment on an incorrect assumption, the district court's reading of the judgment is consistent with case law and is affirmable. See Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (an appellate court "will not reverse a correct decision simply because it is based on incorrect reasons").

7.  On appeal, the parties agree that the district court's ruling should be modified to use $8123 as the figure for mortgage principal reduction rather than the $9036 figure used by the district court. We therefore remand this aspect of the property division to the district court for recalculation.

Affirmed in part, modified in part, and remanded.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.

[1]In addressing the sale costs, the district court referred to the "unusual costs of sale." We read this portion of the order as containing a typographical error.