STATE OF MINNESOTA
IN COURT OF APPEALS
Janet D. Solomon, petitioner,
David J. Solomon,
Filed February 10, 1998
Reversed and motions denied
Hennepin County District Court
File No. DC 140698
Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 S. Eighth St., Minneapolis, MN 55402; Barbara Saunders Lutter, Lehmann & Lutter, P.A., 203 Galaxie Cliff Plaza, 1875 Plaza Dr., Eagan, MN 55122 (for appellant)
Michael D. Dittberner, Kathleen W. Kissoon, Kissoon, Clugg, Linder & Dittberner, Ltd., 3205 W. 76th St., Edina, MN 55435-5244 (for respondent)
Considered and decided by Harten, Presiding Judge, Huspeni, Judge, and Klaphake, Judge.
Appellant challenges the trial court's determinations that he pay respondent's attorney fees, the income tax liability on a maintenance arrearage payment, and increased spousal maintenance; that he deposit his bonus and commission earnings with the court administrator; and that settlement papers be removed from the file. Respondent moves to strike portions of appellant's appendix and seeks attorney fees on appeal. Because the award of attorney fees to respondent, the order to pay the tax liability, the increase in maintenance, the order to deposit bonus and commission earnings with the trial court, and the order to remove settlement papers from the file constitute an abuse of the trial court's discretion, we reverse; we also deny respondent's motions to strike and for attorney fees on appeal.
Appellant David Solomon and respondent Janet Solomon were married from 1976 to 1989. At the dissolution, respondent received custody of their children; she was also awarded permanent spousal maintenance because of her health problems. After a series of modifications due to appellant's termination from one job and acquiring another, in 1990 maintenance was set at $100 per month and child support at $774 per month. Child support is not an issue on appeal.
In 1991, appellant began work as an investment banker for his current employer, and receives an annual base salary of $50,000, a commission on any of his transactions that close, and a share of the firm's annual profit. Appellant's income in a given year is unpredictable.
The events giving rise to this appeal began in 1993, when appellant's gross income was far higher than in any previous year. Respondent, upon becoming aware of this circumstance, moved to increase spousal maintenance. A July 1994 order set maintenance temporarily at $1,000 monthly, retroactive to November 1993. An October 1994 order (after a hearing) reduced maintenance to $300 monthly and suspended payment for 28 months because the court found that appellant had overpaid $8,400. Respondent challenged the order in this court and, while the appeal was pending, a new district court judge was assigned to the case.
Solomon v. Solomon, No. C6-94-2555 (Minn. App. July 13, 1995) (Solomon I), reversed and remanded for findings on respondent's income and needs. In November 1995, the new district court judge found that respondent's attorney fees and taxes were part of her monthly needs and ordered yearly maintenance at the lesser of 15% of appellant's gross income or $30,000 and provided that if in a prior year, beginning with 1993, maintenance was less than $30,000 and if in a future year 15% of appellant's income would be more than $30,000, respondent would receive the excess until she had received an average of $30,000 for each year beginning with 1993.
Appellant challenged the November 1995 order. Solomon v. Solomon, No. C6-96-308 (Minn. App. Aug. 27, 1996), review denied (Minn. Oct. 28, 1996) (Solomon II), held that the trial court erred in including respondent's attorney fees and taxes as part of her monthly needs and in ordering a "profit-sharing" maintenance tied to fluctuations in appellant's income without regard to respondent's needs. Id. at 2-3. The Solomon II court set maintenance at 15% of appellant's tax return income with an annual ceiling of $30,000 and an annual floor of $21,600 and noted that "[h]opefully this [decision] will help both parties decrease the high amount of attorney fees and costs that both sides have been spending to carry on this dispute." Id. at 4.
The hope of the Solomon II court was not realized. In September 1996, the parties' oldest child moved to live with appellant. In October 1996, appellant moved for a reduction of maintenance to 15% of his net income as received, with a ceiling of $15,000; respondent moved for judgment of $92,912 for maintenance arrearages from January 1993, for an order requiring appellant to provide past, present, and future financial information, and for an order restraining him from transferring his assets.
In November 1996, the district court ordered appellant to pay $28,728 in 1993 maintenance arrearages, $30,000 in 1995 maintenance arrearages, $2,000 in respondent's attorney fees, and reserved a decision on 1994 arrearages; it also stated that the case would be continued until "it can be scheduled before a new judge in Hennepin County Family Court." In December 1996, appellant paid respondent $31,427 for 1993 maintenance arrearages, $32,678 for 1995 maintenance arrearages, $14,100 for 1996 maintenance, and $2,000 for attorney fees. She filed a satisfaction of judgments and releases of all 1993 and 1995 claims. The court ordered, pursuant to the parties' stipulation, that appellant's employer make all of appellant's profit-sharing payments to the court.
Because appellant had prevailed in Solomon II, this court in January 1997 issued an order taxing respondent $1,427 for costs and disbursements. A district court hearing to resolve the parties' remaining issues was scheduled for April 28, 1997. On March 7, 1997, however, appellant, in an effort to terminate the litigation, withdrew his outstanding motions, including the motion for a reduction in maintenance, and requested cancellation of the hearing date.
On March 21, 1997, respondent sought an ex parte order to prevent appellant from executing on his $1,427 judgment and from having the oldest child move back with respondent, and scheduled a hearing for 2:00 p.m. on that day. Appellant's attorney, unable to attend the hearing, notified the court that appellant had deposited with the court the remaining 1994 maintenance arrearages and would deposit the 1997 maintenance. The district court ordered appellant not to execute on his judgment and directed both parties not to alter the oldest child's living arrangements, i.e., to remain with appellant. On March 24, 1997, appellant's attorney advised respondent's attorney that all money owing to respondent had been paid and that appellant wanted the litigation to end. The parties stipulated, and the court ordered, that appellant deposit funds and respondent receive $8,909 for 1994 spousal maintenance and $3,525 for January-March 1997 spousal maintenance.
Three days later, respondent moved for an order seeking, inter alia, that appellant pay $12,167 for respondent's income tax, that maintenance be increased, that there be a cost-of-living adjustment to the maintenance ceiling and floor set by this court eight months earlier in Solomon II, that appellant's employer deposit appellant's commission payments as well as his profit-sharing payments with the court as security for maintenance and support, that appellant be forbidden to transfer any assets if he is in arrears on support or maintenance, that appellant pay respondent's attorney fees and costs, that appellant's obligation to provide financial data be clarified, and that all appellant's settlement proposals be removed from the court file. Appellant opposed respondent's motion for payment of tax liability, sought further discovery on the motion for increased maintenance, and, because his support and maintenance payments were now automatically withheld, objected to depositing commission payments with the court.
Following a hearing, the court on June 26, 1997, ordered appellant to pay $12,167 for respondent's income taxes, increased the maintenance ceiling to $30,900 and the floor to $22,248, required appellant's profit-sharing and commission earnings to be deposited with the court, required appellant to provide his tax information to respondent, forbade appellant to transfer assets if he is in arrears on maintenance or support, ordered appellant to pay $43,441 in "bad-faith" attorney fees, directed the removal of settlement proposals from the court file, and directed that another judge or referee be assigned if further court action were necessary. Judgment was entered for $12,167 (income taxes) and for $43,441 (attorney fees).
In consolidated appeals, appellant challenges: (1) the June 26, 1997, order; (2) the judgment; (3) an amendment requiring that $325,000 he would receive in 1997 compensation be deposited with the court; and (4) a further order denying appellant's motion for a stay, directing that a commission payment he received prior to the court's June 26, 1997, order be deposited with the court, and ordering his employer to deposit with the court all future commission payments as well as profit-sharing payments. Respondent moves to strike parts of appellant's brief and for attorney fees on appeal.
The trial court, in ordering appellant to pay attorney fees of $43,441 incurred by respondent since Solomon II, found that respondent was entitled to these fees under Minn. Stat. § 549.21 (1996) because appellant had acted in bad faith. "On review, this court will not reverse a trial court's award or denial of attorney fees absent an abuse of discretion." Becker v. Alloy Hardfacing & Eng'g, 401 N.W.2d 655, 661 (Minn. 1987).
Appellant contends that the trial court abused its discretion by finding that he acted in bad faith because none of the three grounds for bad faith, i.e., untimely payment of maintenance, protraction of the litigation, and failure to disclose income, is supported by the record. We agree.
A. Untimely payment of maintenance
The finding that maintenance payments for 1993-96 were untimely ignores the most obvious fact in this litigation: appellant's maintenance obligation has not been an undisputed amount. In 1994, appellant's maintenance obligation for the relevant period was first increased, then reduced and suspended for overpayment, then challenged by respondent in this court. In 1995, maintenance was remanded by this court, increased, and arrearages assessed. Upon challenge by appellant, this court in 1996 modified maintenance. Arrearages were subsequently calculated and the amount thus calculated was paid a month after its final determination. This chronology does not justify a finding of bad faith and cannot support an award of attorney fees based on bad faith.
B. Protraction of litigation
The district court's finding that litigation was protracted because appellant repeatedly forced respondent to return to court ignores events both before and after Solomon II. Before Solomon II, respondent made a successful effort to have her maintenance tied not to her needs but to appellant's income; this court rejected that effort. See Solomon II, unpub. op. at 3 ("[T]he purpose of maintenance is not to provide the obligee with a lifetime profit-sharing plan. * * * * [O]n these facts, the profit sharing award ordered by the trial court is impermissible.").
After Solomon II, when respondent incurred the fees challenged here, appellant made a significant effort to terminate this litigation by withdrawing his pending motions. At that point, appellant owed no money to respondent and this litigation proceeded on respondent's motion. We can determine no protraction of litigation to support an award of attorney fees incurred after August 1996.
C. Failure to provide income information
Both the uncontroverted testimony of appellant's employer and the record itself verify that appellant's income is variable and unpredictable. Appellant earned $375,474 in 1993, $148,468 in 1994, and $363,228 in 1995. Respondent argues that appellant knew during 1995 that he would receive a commission comparable to that received in 1993 and failed to disclose this information in his July 1995 affidavit. That affidavit, however, was submitted after Solomon I remanded for findings on respondent's needs and income. On remand in 1995, the court did not seek further information on appellant's income; it issued an order that "[n]o submissions are required pending further order of the Court." Moreover, appellant did not receive a significant portion of his income until the end of 1995. He was under no order requiring him to report income before he received it. His failure to do so cannot justify the imposition of attorney fees.
Because the record supports none of the grounds stated as the bases for the award of attorney fees, that award was an abuse of discretion.
2. Payment of respondent's income tax
In December 1996, the trial court issued an "order and stipulation for order" directing that respondent be paid the entire 1993 and 1995 arrearages in 1996. Appellant complied with this order. As a result of payment, respondent's tax liability for 1996 was increased. The court held "that [appellant's] deliberate withholding of spousal maintenance led to the income tax liability. Therefore, [appellant] should be held responsible for these payments."
The court's intent in requiring appellant to pay respondent's tax liability was clearly punitive. This court reviews all aspects of sanction determinations for an abuse of discretion. See Uselman v. Uselman, 464 N.W.2d 130, 145 (Minn. 1990) (concerning sanctions under Minn. R. Civ. P. 11); Blattner v. Forster, 322 N.W.2d 319, 321 (Minn. 1982) (concerning sanctions under Minn. Stat. § 549.21).
In its June 26, 1997, order, the trial court cited its order of November 1995 (arrearages were to be calculated within 30 days and paid within 90 days) and found it was "not true" that appellant had been ordered to pay all the maintenance arrearages in December 1996. However, appellant successfully challenged the November 1995 order in this court. Subsequent trial court orders of November 1996 and December 1996 both directed that arrearages be paid in full in 1996. Therefore, the court's June 26, 1997, determination that appellant was not ordered to pay the entire amount in 1996 contradicts the record.
The trial court also found that if appellant had paid maintenance when it was due, respondent would not have incurred the tax liability. Like the award of attorney fees, this finding is based on the premise that appellant repeatedly failed to meet a clear and undisputed maintenance obligation. That premise is amply refuted by the two prior opinions from this court and numerous orders from the trial court. The award of income tax liability was an abuse of discretion.
3. Increase in 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). Less than a year after Solomon II decreased maintenance to a ceiling of $30,000 and a floor of $21,600, the trial court increased it by three percent to a ceiling of $30,900 and a floor of $22,248.
The district court referred to all factors set forth in Minn. Stat. § 518.552, subd. 2, but made no finding to support the increase in maintenance except in regard to the factor set forth in subdivision 2(g), the obligor spouse's ability to meet needs while meeting those of the obligee. The court found:
[Appellant] clearly has the ability to pay maintenance while meeting his own needs. [Appellant] earned approximately $1 million between 1993-1995. Yet, he failed to pay any maintenance for this time period until the end of 1996.
While the court noted appellant's claims that respondent's household expenses have decreased because the parties' oldest child is no longer living with her and that respondent's tax returns indicate far lower medical expenses than were listed on her claimed monthly expenditures, the court took no account of either factor. Instead, the court found that:
[Respondent] incurs a significant amount of medical-related expenditures which are not tax deductible, yet clearly do constitute medical expenses. The court has reviewed [respondent's] expenses and finds that they are quite reasonable in light of [respondent's] disabilities, as well as the disabilities of the children.
There are no findings as to any particular expenses for respondent, nor as to the Minn. Stat. § 518.64, subd. 2, requirement that there be a showing of substantially increased or decreased earnings of a party or substantially increased or decreased needs of a party or the parties' child or children. Absent a showing of a substantial increase in respondent's needs or the children's needs, the increase in maintenance cannot be sustained. Tuthill v. Tuthill, 399 N.W.2d 230, 231-32 (Minn. App. 1987).
4. Order to deposit supplemental income with the court administrator
"The court finds that [appellant's] past bad behavior indicates that he will not pay his maintenance unless his bonuses, commissions, or compensation are placed in a fund with the District Court Administrator." The intent of this provision in the June 26, 1997, order was punitive, and the standard of review is abuse of discretion. Uselman, 464 N.W.2d at 145; Blattner, 322 N.W.2d at 321. A December 1996 court order required appellant to deposit his annual profit-sharing payment with the court. Respondent subsequently moved to require appellant's employer to "continue" to pay appellant's commissions to the court administrator. The December 1996 order, however, did not refer to commissions but to profit-sharing.
On June 23, 1997, while a decision on respondent's motion to "continue" was pending, appellant received a commission payment. Upon release of the June 26, 1997, order, respondent informed the court that appellant had received a commission payment. The court then issued orders retroactively requiring the deposit of this June 23, 1997, commission payment, prospectively requiring the deposit of all future commissions, and finding that by receiving his commission appellant had violated the "clear intent" of the court's December 1996 order.
We conclude that orders requiring retroactive or prospective deposit, or both, of appellant's supplemental income with the court were improvidently issued. The "bad behavior" cited in the trial court's June 26, 1997, order is the same "bad behavior" that led to the awards of attorney fees and income tax payment: failure to make timely maintenance payments, causing a tax liability for respondent, and deceiving the court as to the probable amount of his 1995 income. As indicated earlier in this opinion, none of these bases is supported by the record.
Requiring appellant to have all income beyond his $50,000 draw paid to the court administrator as a punitive measure was an abuse of discretion.
Removal of the settlement papers
A. Trial court decision
The trial court, in granting the relief requested by respondent, did not specify reliance on any particular documents but found generally
that it is inappropriate for the court file to contain records that have not been properly filed, nor have they been argued in front of this court. Rather, the court finds that settlement proposals sent between parties are not, and should not be, part of the court file.
The composition of the record on appeal is established by Minn. R. Civ. App. P. 110.01. Therefore, whether items should be included in or removed from the record appears to be a question of law and subject to de novo review. See Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).
The settlement proposals in letters between the parties' attorneys were properly filed by appellant, generally as exhibits to affidavits submitted to refute the charges of "bad faith" leveled against appellant in respondent's motions for attorney fees or other sanctions. The court's finding that they were not properly filed is not supported by the record.
Respondent claims that Minn. R. Evid. 408 bars evidence of settlement negotiations from admission into the record. However,
[t]his rule * * * does not require exclusion when the evidence is offered for another purpose, such as * * * negativing a contention of undue delay * * *.
Minn. R. Evid. 408. Here, the evidence of settlement negotiations was offered for the purpose of refuting charges of bad faith, including protracting the litigation, analogous to "negativing a contention of undue delay." Minn. R. Evid. 408 does not support exclusion of the documents challenged by respondent.
B. Motion to strike
Respondent contends that because the trial court granted her motion to remove the settlement documents, they are not part of the record before this court. We disagree. Respondent's argument would preclude any review of a trial court's decision to remove documents. Respondent offers no authority for the view that the record of a case may be altered irrevocably, without possibility of review, on the motion of one party to remove documents filed by the other party.
6. Appointment of a new trial court judge
We share the hope expressed in Solomon II that "this [decision] will help both parties decrease the high amount of attorney fees and costs that both sides have been spending to carry on this dispute." Id. at 4. The emotional and financial toll this litigation has exacted from these parties and their children is as regrettable as it is extreme. Nonetheless, we must acknowledge the possibility that one of the parties may elect to return to court. The judge who issued the orders now on appeal stated:
If further motions or actions on this file are necessary, the Family Court Assignment Office shall reassign this matter to another Judge or Referee * * *. The undersigned has finished his assignment on the family court bench, and has completed the matters on this case which related to the prior appeal.
Appellant's request that any further proceedings in this matter be heard by a different trial court judge appears to coincide with the judge's directives. In the unfortunate event that litigation continues in this matter, that litigation shall be assigned to a judge other than the one whose orders are now on appeal.
7. Attorney fees on appeal
We deny respondent's request for attorney fees on appeal. We find no merit in her challenge of two of appellant's issues (removal of the settlement papers and request for another judge) as frivolous. Nor would an award of fees based upon the remaining issues be appropriate.
We reverse the award of attorney fees, the tax liability award, the order that all appellant's supplemental income be deposited with the court administrator, the increase in maintenance, and the removal of settlement papers from the file, and we deny respondent's motions to strike and for attorney fees on appeal.
Reversed and motions denied.
 Respondent also sought fees under Minn. Stat. § 518.14; the court found that she was not entitled to fees under this statute because she has the means to pay fees herself.
 The trial court found bad faith in appellant's failure to pay arrearages until December 1996. However, Solomon II, issued at the end of August 1996 (further review denied October 28, 1996), did not specify the amounts to be paid. Moreover, the trial court's November 1996 order setting the amount reflects the fact that the parties had agreed to the 1993 amount at the October 29, 1996, hearing. The court therefore knew that the amount was established not in August 1996 but at the end of October 1996 and was not reduced to a court order until November 1996.
 In 1994, appellant reported to the court that this income derived from the largest deal his firm had ever achieved, that his commission was correspondingly greater than it had ever been, and that he did not expect to earn that much again in a single year.
 We note that even if appellant had a duty to disclose, his failure to do so affected neither the calculation nor the payment of maintenance. By November 1996, when maintenance was set for 1993 and 1995, appellant had made full disclosure of his income for those years.
 Even if appellant had complied with the order, payment would still have been made in 1996. A letter from respondent's attorney to appellant's attorney setting forth the calculation of those arrearages is dated January 11, 1996.
 The trial court denied respondent's motion for a cost-of-living increase, saying that it had already increased maintenance by three percent. Respondent did not challenge the denial.
7 To the extent the trial court based its increase in maintenance on appellant's failure to pay maintenance until 1996, it erred in relying on that misconduct both under the facts of this case and under the statute. An obligor's misconduct is not among the eight factors listed in Minn. Stat. § 518.552, subd. 2.
 Alternatively, if this provision is considered a means of securing maintenance payments, the standard of review is again abuse of discretion. See Maeder v. Maeder, 480 N.W.2d 677, 680 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). If the provision was intended to secure maintenance, it was an abuse of discretion because maintenance is automatically withheld from appellant's income.
 Respondent's argument that appellant could move to have the requirement that his income be deposited with the court administrator lifted after he has established a pattern of regular payment ignores, we believe, the due-process requirement that culpability be determined before punishment is imposed.
 Respondent cites the rule for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (a party may not obtain review of an issue litigated below under a different theory).
 Nor are we persuaded by respondent's statement in her attorney's affidavit in support of her motion to strike part of appellant's brief that the settlement proposals "are completely irrelevant to the issues decided by [the trial court] and the issues that are before the Court of Appeals." The trial court's orders reflect an intent to punish appellant at least in part for bad faith in protracting the litigation. Evidence that appellant repeatedly proposed settlement is not irrelevant.
 Although we have noted that appellant's request for a different judge is consistent with the trial judge's own directives, the request is not frivolous. Without a ruling from this court, if issues had been remanded, the trial court, despite its directive, may have felt obligated to address them.