This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Marriage of:

Terry K. Miller, petitioner,



Debra J. Miller,


Filed February 4, 1997


Huspeni, Judge

Dakota County District Court

File No. F99512726

Stephen C. Aldrich, Suite 1700, 701 Fourth Ave. S., Minneapolis, MN 55415 (for Appellant)

R. M. Bracewell, R.M. Bracewell & Assoc., 2420 Minnesota World Trade Center, 30 E. Seventh St., St. Paul, MN 55101 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Toussaint, Chief Judge, and Lansing, Judge.



In this dissolution action, appellant challenges the denial of her motion for a new trial or amended findings pursuant to Minn. R. Civ. P. 59 and her motion to reopen the decree pursuant to Minn. Stat. § 518.145. She also appeals from the judgment on the grounds of erroneous findings, conclusions not supported by the findings, and improperly excluded evidence. Because we see no error of law in the denial of appellant's motions, we affirm the order denying them; because we see no abuse of discretion in the judgment, we affirm it also.


Appellant Debra Miller and respondent Terry Miller, both then age 39, were married in 1990. There were no children of their marriage, but at the time of the dissolution in 1996 each party had custody of one minor child from a previous marriage. Appellant received approximately $1,500 per month in child support for her son, born in April 1978; respondent received $600 per month in child support for his son, born in August 1979. During the marriage, respondent was involved in a legal dispute over the custody of his son; the legal fees amounted to $6,200.

Respondent's annual gross income from his job at Unisys is about $60,000. Appellant's income from her job as a realtor for Burnet Realty has varied considerably: she earned $38,763.49 in 1995 by December, with an additional $17,000 in receivables due in 1995 or 1996. Neither party was awarded maintenance.

Before the marriage, respondent acquired a house valued at $75,000 by paying $10,000 down and financing $65,000; he invested an additional $10,000 in the house. During the marriage, the parties invested $12,000 in the house, refinanced it, and became joint tenants. The market value of the home is now $120,000, the mortgage encumbrance is $91,000, and the equity is $29,000. The trial court determined that respondent had a $20,000 nonmarital interest in the homestead and awarded respondent a $5,000 lien on it. The parties also owned a lake lot with a value of $30,000, less a tax lien of $500.

Appellant received as marital assets the $29,000 equity in the homestead, a retirement account worth $5,139, a car worth $3,900, a computer worth $3,600, and personal property worth $1,200; respondent's $5,000 lien was deducted, and her total was $37,839. Respondent received the $29,500 lake lot, the marital interest in his 401K worth $13,255, a retirement plan worth $5,419, a stock account worth $3,006, and the $5,000 lien on the homestead; his $20,000 nonmarital interest in the homestead was deducted, and his total was $36,180.

Appellant's motions for a new trial and to reopen the judgment were dismissed as untimely. She challenges that dismissal and also challenges the judgment itself on the ground that the trial court abused its discretion in making various findings, in refusing to award appellant any of respondent's nonmarital property, in denying appellant attorney fees, and in denying appellant maintenance.


1. Motions for amended findings or a new trial and to reopen judgment.

Appellant was served by mail with notice of entry of judgment and decree on January 22, 1996. Minn. R. Civ. P. 59.03 provides that motions for a new trial shall be made within 15 days of service of notice of entry of judgment and decree. The additional three days provided for serving by mail should be added to the 15 days. Minn. R. Civ. P. 6.05. Eighteen days after January 22 is February 9. On February 12, respondent was served with appellant's motion for a new trial or amended findings and her motion to reopen the judgment .

In the case of the new trial motion, this delay was fatal. The 15-day time limit for moving for a new trial is absolute, and a trial court cannot extend it. Ferraro v. Ferraro, 364 N.W.2d 821, 822 (Minn. App. 1985). Failure to comply with the 15-day time limitation for service of notice of motion for a new trial is a jurisdictional defect that deprives the court of the jurisdiction to hear and rule on the tardy motion. Differt v. Rendahl, 306 N.W.2d 813, 814 (Minn. 1981). A trial court has no jurisdiction to amend its findings or to entertain a motion for a new trial when the motion was not timely filed, regardless of the fact that the movant's attorney misread or misinterpreted an order delaying time for hearing on posttrial motions. Ring v. McPeek, 423 N.W.2d 711, 712 (Minn. App. 1988). The trial court lacked jurisdiction to entertain the motion for a new trial.

Appellant also served a motion to reopen the decree pursuant to Minn. Stat. § 518.145, subd. 2 (1994), providing that a judgment may be reopened for "mistake, inadvertence, surprise, or excusable neglect" if the motion is made "within a reasonable time * * * not more than one year after the judgment and decree * * *." Under the statute, the standard of review for decisions on reopening a judgment is abuse of discretion. Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 493-94 (Minn. App. 1995).

Appellant argues that because it was her attorney's neglect, not her own, she is entitled to reopen the judgment.[1] A party may be relieved of the neglect of her attorney by satisfying the four-part test for relief from judgment. Bentonize v. Green, 431 N.W.2d 579, 584 (Minn. App. 1988). Where relief from dismissal is sought based on counsel's excusable neglect, the movant must establish a reasonable claim on the merits, a reasonable excuse for failure to act, due diligence, and lack of prejudice to the other party. Hellerstedt v. MacGibbon, 489 N.W.2d 247, 249 (Minn. App. 1992).

As demonstrated in the analysis that follows, appellant cannot meet the first element: a reasonable claim on the merits. Therefore, even though the attorney may have had a reasonable excuse for failure to act and may have exercised due diligence once the mistake was discovered, and even though appellant might not be prejudiced by reopening the judgment, we cannot hold that there was an abuse of discretion.

2. Marital property division.

Standard of Review

A trial court has broad discretion in dividing property; absent an abuse of that discretion, the trial court's decision must stand. Rutten v. Rutten, 347 N.W.2d 47, 50-51 (Minn. 1984). Appellant alleges that the trial court failed to credit her with a nonmarital share of $2,000 in her car. The only evidence supporting her nonmarital share was her attorney's statement at trial that the nonmarital interest "will be the subject of testimony." The trial court would have had no basis for finding that she had a nonmarital interest or what that interest was because there was no such testimony.

Appellant next argues that half the $6,200 spent in the custody dispute over respondent's son should be considered a marital asset awarded to respondent because the child support respondent acquired with custody is nonmarital income. Appellant offers no support for her argument on this issue and error is not obvious.[2] See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (assignment of error based on mere assertion and not supported by argument or authority is waived unless error is obvious).

Appellant claims the court failed to make findings as to the home improvements made during the marriage. We disagree. The court found that the parties jointly invested $12,000 in the home after the marriage, a finding amply supported by evidence in the record.

The trial court also found that respondent had invested $10,000 in home improvements prior to the marriage, added his $10,000 down payment, and found that he had a $20,000 nonmarital interest. Appellant argues that respondent cannot prove that his premarital expenditures increased the homestead's value because there is no evidence of the homestead's value on the date of the marriage. However, there is evidence that the house was worth $75,000 when respondent bought it in the spring of 1988 and worth $110,000 seven months after the marriage in December 1990. Respondent submitted records of expenditures of at least $20,000 on the house prior to the marriage. The trial court's finding that respondent had a nonmarital interest of $20,000 is supported by evidence in the record.[3]

Appellant claims that the trial court should have charged respondent with $4,400 in marital assets he allegedly loaned to his daughter. We find no error. The record shows that this $4,400 was withdrawn from the account of respondent's son; there is no evidence that this account was a marital asset. Appellant also claims the trial court should have charged respondent with $1,087 withdrawn from a "joint account" he had with his adult daughter. There is no evidence that this account was a joint account; it belonged to respondent's daughter. Consequently, there is no basis for appellant's assertion that a withdrawal from this account should be charged to respondent as a marital asset.

Appellant claims that the trial court's division of the tangible marital property was inequitable: she asserts that respondent has $3,900 in marital tangibles while appellant has only $2,600. Appellant admits, however, that she sold marital property for $1,200 prior to trial to obtain money to pay her attorney fees. The trial court did not abuse its discretion in charging her with this amount.

3. Refusal to award nonmarital property.

"A very severe disparity between the parties is required to sustain a finding of unfair hardship necessary to apportion nonmarital property." Reynolds v. Reynolds, 498 N.W.2d 266, 271 (Minn. App. 1993). See also Minn. Stat. § 518.58, subd. 2 (1994). Appellant's argument is not that her resources or property are so inadequate as to work an unfair hardship under the statute, but rather that respondent's nonmarital assets include $42,966 in a 401K and $6,273 in a pension and that appellant has no comparable nonmarital assets. However, Minn. Stat. § 518.58, subd. 2 does not mandate that the parties' estates following dissolution be equal. Appellant makes a showing of inequality, but not of unfair hardship.

Appellant's citation of Rutten, 347 N.W.2d 47; Cummings v. Cummings, 376 N.W.2d 726 (Minn. App. 1985); and Van de Loo v. Van de Loo, 346 N.W.2d 173 (Minn. App. 1984), to support her argument is unavailing. All of these cases are distinguishable on their facts.

4. Denial of appellant's attorney fees.

"An award of attorney fees in dissolution cases 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). Appellant argues that she is entitled to attorney fees pursuant to Minn. Stat. § 518.14 (1994) because she does not have the means to pay and respondent does.

Appellant argues that her $33,000 of assets includes only $5,000 for retirement and $3,009 for her car and that her income is "at best uncertain" in contrast with respondent's $60,000 income. Her income fluctuates, but is not "uncertain": she earned $22,391.66 from Burnet Realty in 1992, $56,000 in 1993, $13,623 in 1994, and $38,763 in 1995 by December, with an additional $17,000 in receivables due in 1995 or 1996. Appellant cites respondent's $7,200 in child support as an addendum to his income, but did not mention the $19,000 in child support added to her own income. Her argument that she is unable to pay her attorney fees, while respondent has the means to do so, is unsupported by the evidence.

5. Denial of maintenance.

"The standard of review on appeal from a trial court's determination of a maintenance award is whether the trial court abused the wide discretion accorded to it." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). Appellant argues that the trial court's conclusion that she is not entitled to maintenance is not supported by a finding as to her expenses. There is no indication that appellant submitted any evidence of her expenses that the trial court failed to consider. We see no abuse of discretion in the denial of maintenance.

The trial court neither erred in denying the motions for a new trial or to reopen judgment nor abused its discretion in making the determinations to which appellant objects. Respondent's motion for attorney fees on appeal is denied, as is his motion to strike portions of appellant's brief. We note that appellant acknowledged and corrected the most significant error in her reply brief.


[ ]1In his affidavit, appellant's attorney explains that he forgot January has 31 days rather than 30, therefore computed February 10, a Saturday, to be the last day for a new trial motion, and accordingly served the motion on Monday, February 12.

[ ]2Appellant also argues that the trial court erred in refusing to admit into evidence a list of the amounts paid to respondent's attorney for handling the custody dispute. Rejection was based on the grounds that the marital funds used to obtain custody of respondent's child are not a marital asset awarded to respondent. Exclusion of this evidence was proper.

[ ]3Appellant also argues that the money obtained from refinancing the house was a marital asset used to pay off nonmarital debts and that respondent could not prove what portion of the debt paid was marital and what portion was nonmarital. Respondent testified that the credit card debts paid with the proceeds from refinancing were not exclusively expenditures made for the house but were "things for the house, vacation, clothes, everything." Therefore, appellant cannot argue that the extent of respondent's nonmarital interest in the house should be computed from the credit card debts.