This opinion will be unpublished and

may not be cited except as provided by

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





Loretta Swanson,



Karl Wenzel, Appellant.


In Re the Marriage of:

Loretta Kay Wenzel, petitioner,



Karl Mitchell Wenzel,


Filed May 26, 1998


Shumaker, Judge

Beltrami County District Court

File Nos. F4-95-1430 & C6-97-929

Susan A. McKay, 305 American Avenue. P.O. Box 1213, Bemidji, MN 56619-1213 (for appellant )

Thomas L. D'Albani, Cann, Haskell, D'Albani, Schueppert, Hazelton & Rodgers, P.A., 205 Seventh Street, P.O. Box 978, Bemidji, MN 56619 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.



In these consolidated actions, appellant Karl Mitchell Wenzel appeals from an unlawful detainer judgment and an order denying post-dissolution decree relief. We affirm.


Appellant and respondent Loretta Wenzel, now Loretta Swanson, dissolved their marriage on January 23, 1997. The decree provided that the parties were to continue to own their homestead as joint tenants but that it was to be sold by July 6, 1997. Until that date, appellant was entitled to exclusive occupancy. The decree provided that, if the property was not sold by July 6, 1997, respondent would be entitled to exclusive occupancy and she would have the obligation to sell it. The decree defined "sale":

The homestead shall be considered "sold" * * * when a purchase agreement has been signed before July 6, 1997, a closing date scheduled on or before July 6, 1997, and a letter from the bank verifying financing for the buyers and the closing has occurred on or before July 6, 1997.

On February 7, 1997, appellant and respondent signed an "exclusive right to sell" listing agreement with RE/MAX. The list price was $83,900 and the commission rate 7%. The contract provided that if the property was sold to Curt Bohlman or either of two undesignated persons, the commission would be $1,000, provided that such buyers purchased the property through the RE/MAX agent. The contract further provided, "I agree to pay your commission whether You, I, or anyone sells the Property." July 6, 1997, was the listing agreement's expiration date.

Appellant notified respondent on June 24, 1997, that he had sold the property and that she should go to First National Bank to sign the purchase agreement. Respondent then called RE/MAX and learned that appellant had taken the property off the market, that RE/MAX was unaware of the purchase agreement at the bank, that it would not be possible to close a sale by the July 6, 1997, deadline, and there would be an outstanding brokerage fee. Respondent went to the bank and saw a purchase agreement dated June 6, 1997, for a sale price of $35,000, naming as buyer a woman with whom appellant periodically lived. Because she feared that she might have to pay the broker's commission, respondent declined to sign the purchase agreement. Apparently, appellant had obtained a release from the listing obligation before June 24, 1997, but he did not tell respondent about it until about a month later. The July 6, 1997 sale deadline passed and appellant refused to move out of the property. Respondent brought an unlawful detainer action and was awarded a judgment of restitution.

The decree of dissolution awarded the parties joint legal custody of their children. Respondent was given the authority to decide where the children would attend school. Appellant was given the right to object to the appropriateness of the school selected for daughter K.W. Respondent selected a private school for K.W. and appellant objected and moved for an order compelling enrollment of K.W. in a public school, allowing appellant to care for the children when they are not in daycare, and compelling respondent to execute a quitclaim deed for the sale of the homestead. The district court denied the motions.


As to the unlawful detainer action, this court's "standard of review is whether the trial court's findings of fact are clearly erroneous." Minneapolis Community Dev. Agency v. Smallwood, 379 N.W.2d 554, 555 (Minn. App. 1985) (citations omitted).

With respect to the child visitation issues, we recognize that the district court has broad discretion to determine how to best serve the children's interests. Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984); Bear v. Bear, 415 N.W.2d 389, 393 (Minn. App. 1987). Our review is limited to a determination of whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. See Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

Appellant argues that he sold the homestead on or before the July 6, 1997 deadline and that respondent frustrated the sale by failing to cooperate. The district court found no evidence that respondent frustrated the sale. Nor do we find any such evidence. The information respondent had between June 24, 1997, and July 6, 1997, reasonably supported an inference that there was to be a quick sale for less than half the list price without the broker's knowledge. Respondent was justifiably concerned that she might be held responsible for the broker's commission since she was bound by the listing agreement. The district court's findings and conclusions were not clearly erroneous, and its strict construction of the sale provision in the dissolution decree was proper. See 1985 Robert St. Assoc. v. Menard, Inc., 403 N.W.2d 900, 901-902 (Minn. App. 1987).

Appellant's motion for additional visitation when the children are not in daycare presents no evidence that was not available to the district court when it entered the decree. The district court has broad discretion to determine how visitation will serve the best interests of the children. Rutten, 347 N.W.2d at 51. We find no abuse of that broad discretion.

With respect to respondent's choice of school for K.W., the district court again had essentially the same evidence available at the time of the dissolution. K.W. is in the same school she has attended since kindergarten and the psychologist's report on which appellant relies is the same report he produced at the dissolution hearing. The district court concluded that there is no reasonable basis to interfere with the child's school enrollment. We agree. The district court did not abuse its discretion in this matter.