This opinion will be unpublished and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
                              C1-96-538

     Joanna Behr, petitioner,
     Respondent,


vs.

Michael Behr,
     Appellant.


Filed October 15, 1996
Affirmed
Amundson, Judge

Rice County District Court

File No. F5-93-1062

Jon Erik Kingstad, P.O. Box 318, 310 South St. Croix Trail, Lakeland, MN
55043 (for Respondent)

Terri A. Blomfelt, 724 Norwest Center, 230 West Superior Street, Duluth, MN
55802 (for Appellant)


Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and
Harten, Judge.
                                     
                        Unpublished Opinion

AMUNDSON, Judge (Hon. Bernard E. Borene, District Court Trial Judge)

Michael Behr appeals from a judgment denying his request for bad faith fees
and awarding respondent Joanna Behr attorney fees in a proceeding she
brought to enforce a foreign judgment against him. We affirm.
                                     
                               Facts

In August 1985, a Wisconsin circuit court entered judgment dissolving the
marriage of appellant Michael Behr and respondent Joanna Behr and ordering,
among other things, that appellant pay $60,983.45 to respondent. This sum
represented a division of marital property, attorney fees of $1,000, and
$18,083.45 in temporary child support and spousal maintenance arrearages.

Appellant moved to Minnesota and respondent sought enforcement of the
Wisconsin judgment here. The district court granted appellant a continuance
to petition the Wisconsin court for modification of the original judgment
to give him credit for making mortgage and real estate tax payments on
respondent's homestead after the dissolution and for maintaining life
insurance policies naming her as beneficiary. The Wisconsin court denied
appellant's request, but the court's decision only referred to the issue of
payment of insurance premiums. The Wisconsin Court of Appeals affirmed this
decision. See Behr v. Behr, 530 N.W.2d 70 (Wis. App. 1995).

The Minnesota district court determined that it would address the mortgage
and tax issues because it was unclear whether appellant had requested the
Wisconsin court to grant him credit for those payments. The district court
found that appellant was entitled to credit for payments of real estate
taxes and mortgage principle, but not interest. The court determined that
appellant was still in arrears on a substantial portion of the judgment and
held him in contempt. The district court ordered appellant to pay
respondent $750 in attorney fees.

Appellant moved for amended findings and a new trial. The district court
denied this motion and again issued an order finding appellant in contempt.
The court stayed execution of the jail sentence while appellant brought an
appeal. This court dismissed the appeal as premature and remanded to the
district court for a ``second-stage hearing'' to determine whether
appellant had an excusable reason for his nonperformance of the purging
conditions of the contempt order. Behr v. Behr, No. C6-94-1194
(Minn. App. June 13, 1994 ) (order op.).

At the second-stage hearing, appellant did not show or even claim he had an
inability to pay the unpaid portion of the judgment. Instead, he continued
to claim that he should get credit for payments he made on respondent's
behalf. The district court found appellant continued to be in constructive
civil contempt of court and awarded respondent $5,000 in attorney fees. The
district court sentenced appellant to jail, but stayed sentence to allow
him to perfect an appeal, which he then did. In that appeal, this court
determined that the district court properly refused to offset the amount of
mortgage interest appellant had paid, affirmed the contempt order as to
unpaid attorney fees contained in the dissolution judgment, and reversed
the contempt order as to enforcement of the marital property settlement.
Behr v. Behr, No. C8-95-428 (Minn. App. Aug.22, 1995), review
denied (Minn. Oct. 10, 1995). We also determined that the order
awarding attorney fees to respondent was not yet appealable because
judgment had not yet been entered.  See id.
On remand, respondent sought an award of attorney fees for defending
the enforcement action. Appellant now brings this appeal challenging the
denial of his motion for fees and challenging the previous award of fees to
respondent, now reduced to judgment.

                                     
                              Decision
I. Minn. Stat. §§ 518.14 and 549.21

Both Minn. Stat. § 518.14 and Minn. Stat. § 549.21 may serve the
basis for an award of fees to an individual who seeks relief from the court
to enforce the terms of a dissolution judgment.
     An award of attorney fees under Minn. Stat. 𨹞.14 rests almost
entirely within the discretion of the trial court and will not be disturbed
absent a clear abuse of discretion.  Jensen v. Jensen, 409 N.W.2d
60, 63 (Minn. App. 1987).

Under section 549.21, the court has discretion to award fees and costs when
a party acts in bad faith, asserts a frivolous claim or defense that is
costly to the other party, or ``asserts a position solely to delay the
ordinary course of the proceedings ***.'' Minn. Stat. 𨹽.21, subd. 2.
The standard of review of a decision on attorney fees and costs under
section 549.21 is whether the trial court abused its discretion. Radloff
v. First American Nat'l Bank, 470 N.W.2d 154, 156 (Minn. App. 1991),
review denied (Minn. July 24, 1991).

The record contains no evidence regarding respondent's income and expenses.
Thus an award of fees is not warranted under Minn. Stat. § 518.14 based
upon appellant's ability to pay those fees and respondent's inability to
pay them. The court may, however, award fees ``against a party who
unreasonably contributes to the length or expense of the proceeding.''
Minn. Stat. 𨹞.14, subd. 1. The court may award fees under this
provision ``based on the impact a party's behavior has had on the costs of
the litigation regardless of the relative financial resources of the
parties.'' Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App.
1991); See also Holder v. Holder, 403 N.W.2d 269, 271 (Minn. App.
1987).

Appellant argues that the facts supporting the fee awards in
Dabrowski and Holder demonstrate ``unreasonable'' actions
taken by the party against whom fees were awarded, whereas the facts here
do not. We disagree. First, a comparison of the facts in Dabrowski
and Holder, cases in which we affirmed the trial court's award of
fees, is of little use here to support a reversal of the trial court's
discretionary decision. Second, the record before us demonstrates a long
history of appellant's unreasonable actions, starting with his failure to
provide any information about his finances during the dissolution
proceedings in Wisconsin and culminating with the lengthy and unnecessarily
contentious enforcement proceedings in Minnesota.(1)
        [Footnote] (1)The record indicates there was a
        concern during the parties' divorce proceedings that
        appellant was hiding assets. The parties'
        dissolution decree contains a statement by the court
        about appellant's failure to provide financial
        information, causing the court to establish a
        constructive trust on all appellant's property,
        wherever situated, in favor of respondent and the
        parties' minor children.

Appellant claims that, because he obtained a reduction of $7,976.50 from
the original $42,900 sought, the record cannot support a finding that he
acted in bad faith or that he unreasonably delayed the enforcement
proceedings. We disagree. The award of fees did not relate to appellant's
meritorious claim, but instead to his claim he was not liable for the
remaining balance due.

Appellant contends that, because he made good faith arguments that he had
satisfied the judgment by making various in-kind payments, the court abused
its discretion when it ordered bad faith fees. To support this argument he
cites Glarner v. Time Insurance Company, 465 N.W.2d 591, 598 (Minn.
App. 1991), review denied (Minn. Apr. 18, 1991). In that case, this

court reversed an award of bad faith fees under section 549.21 because
``respondent failed to present any evidence below that appellant
acted in bad faith in any way with respect to the litigation.'' Id.
(Emphasis in original). In this case, however, the district court
determined that a substantial portion of appellant's claims ``were just
totally without merit,'' and that his continued litigation of these issues
constituted ``misconduct.''

The district court viewed appellant's claims regarding payment of mortgage
interest and insurance premiums as frivolous because the record contains no
evidence that could support a finding that respondent had agreed to those
payments as satisfaction of the judgment. As the district court found, and
this court affirmed in the prior appeal, respondent was not unjustly
enriched by appellant's payment of mortgage interest. Respondent could have
paid off the mortgage immediately if she had had the cash payment of the
judgment in hand. Further, because the underlying judgment did not include
a provision for interest, any delay in the payment of the remaining sum
benefited appellant and damaged respondent by further reducing the current
value of the judgment when it was finally paid.

In awarding an additional $5,000 in fees, the court stated:
        
        Well, in view of the past hearings, I found that
        [appellant's] arguments were just totally without
        merit. *** I said I'll give him an opportunity to go
        back to litigate that in Wisconsin. He did and he
        lost there, and he still hasn't paid ***. It's now
        February 13th, the following year, and they haven't
        gotten anything other than what he felt like paying.

Given the history of this case, and the court's broad discretion to award
fees and costs under Minn. Stat. §𨹞.14 and 549.21, we perceive
no clear abuse of discretion in the court's determination that an award of
fees was warranted here. The record supports a decision to award fees
because appellant's continued claim of offset for interest payments and
insurance premiums constituted an assertion of an unfounded position solely
to delay the ordinary course of the proceedings and unreasonably delayed
the proceedings.

Finally, appellant challenges the amount of the fees awarded. He argues
that the fee award impermissibly contains fees incurred by respondent in
the proceedings in Wisconsin. Appellant also claims the record contains
insufficient evidence to support the amount of the award because the record
contains no affidavit or statement detailing respondent's costs and
fees.(2)
        [Footnote] (2)Respondent has moved to strike this
        argument from appellant's reply brief because
        appellant did not make this argument in his brief
        and this argument is not in response to a ``new
        matter'' raised in respondent's brief. See
        Minn. R. Civ. App. P.128.02, subd.3 (``The reply
        brief must be confined to new matter raised in the
        brief of the respondent''). We agree. Appellant's
        brief contains no comment about the amount of fees,
        but only challenges the basis for the award,
        claiming that the fees include expenses for
        proceedings in Wisconsin. We grant respondent's
        motion to strike.

Contrary to appellant's claim, the record demonstrates that the district
court's award of fees was based upon fees and expenses from the proceedings
held in Minnesota. The district court specifically stated that the award
was for ``attorney fees and expenses incurred in the Minnesota proceeding
to enforce payment.'' Between the first award of $750 for fees and the
award of $5,000, respondent incurred additional fees and expenses for the
following: (1) responding to appellant's motion to amend the March 10, 1994

findings and for a new trial, including respondent's filing a memorandum of
law and attending a hearing on this motion; (2) submitting a memorandum to
the court of appeals on the issue of appealability of the March 10 and May
16, 1994 contempt orders (this court subsequently dismissed the appeal on
July 12, 1994); (3) appearing at the second-stage contempt hearing on
Feb.13, 1995; and (4) submitting a proposed final contempt order at the
district court's request. Where, as here, the trial court was in a good
position to estimate the value of services rendered, the court's estimation
of the value of fees was reasonable and not an abuse of discretion.  See
Fick v. Fick, 375 N.W.2d 870, 875 (Minn. App. 1985). We hold that the
district court did not abuse its discretion in calculating and awarding
fees to respondent.
                           II. Bad Faith

Appellant challenges the district court's denial of his motion for an award
of bad faith attorney fees from respondent under Minn. Stat. 𨹽.21,
subd. 2. He claims entitlement to an award of attorney fees based on
respondent's attempts to employ the remedy of contempt to enforce a marital
property division. But respondent prevailed on the contempt issue after a
contested hearing where appellant had a full opportunity to argue his
position. While this court reversed the district court's finding of
contempt regarding appellant's nonpayment of the portion of the judgment
related to the property settlement, the finding of contempt for nonpayment
of the portion of the judgment concerning attorney fees was valid and
affirmed by this court on appeal. Further, respondent prevailed on the
substantive issues regarding appellant's obligation to satisfy the
judgment. Finally, respondent did not continue to challenge issues when a
court ruled against her. Under these circumstances, the trial court did not
abuse its discretion when it refused to award bad faith fees to appellant.
                    III. Appellate Attorney Fees

Respondent seeks an award of appellate attorney fees. We decline to make
such an award of fees because the issues raised on appeal were not
frivolous and because respondent has not demonstrated an inability to pay
her fees. Cf. Dabrowski, 477 N.W.2d at 766 (recognizing that
attorney fees may be awarded on appeal when appeal is frivolous or in bad
faith, but deciding not to grant award of appellate attorney fees).
Affirmed.