This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Mary E. Frendin, petitioner,
Filed December 8, 1998
Polk County District Court
File No. F8-95-620
Mary E. Seaworth, Howe & Seaworth, 421 DeMers Avenue, Grand Forks, ND 58201
Steve Frendin, 433 Central Avenue, Crookston, MN 56716 (appellant pro se)
Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court's 1) valuation of a 401(k) plan; 2)
denial of his motion for the termination of the reservation of spousal
maintenance; 3) denial of his motion for transfer of personal property; and 4)
denial of his motion to reestablish "college accounts." Because we see no
abuse of discretion or error in the trial court's decisions, we affirm.
Appellant Steven Frendin and respondent Mary E. Frendin were divorced
in January 1996 and a judgment was entered dividing the parties' property and
reserving the issue of spousal maintenance. The parties were each awarded an
undivided 50% interest in appellant's 401(k) pension plan. Among the assets at
issue in the dissolution were certain accounts maintained by Piper Jaffray,
also known as "college accounts." Those accounts, established in the names of
the children of the parties, were determined to be respondent's non-marital
property because they were established through funds she received by
inheritance. Appellant's challenge to the dissolution judgment was rejected
and this court affirmed the underlying judgment. See Frendin v.
Frendin, No. C5-96-476, 1996 WL 589066 (Minn. App. Oct. 15, 1996).
Respondent filed a motion in district court on August 28, 1997, requesting
appellant to account fully for his 401(k) plan and find appellant in contempt
for disregarding the provisions of the judgment regarding the 401(k) plan. In
his response, appellant 1) asserted that the district court made numerous
mistakes in the division of property between the parties; 2) requested that
respondent provide him with informational access to the Piper Jaffray accounts;
3) argued that items of property awarded to him were never transferred; and 4)
requested that the issue of spousal maintenance be resolved.
After determining that appellant had closed out his 401(k) plan and that he
had failed to pay respondent, the district court found appellant in contempt of
court for failure to comply with the judgment. The district court, based on
the absence of any evidence offered by appellant, denied the request to
terminate the reservation of spousal maintenance. The court concluded that the
property disposition set forth in the judgment and decree is the law of the
case and cannot be altered or modified by the district court.
The district court also determined the value of the 401(k) account and ordered
appellant to pay respondent her interest in the account. Appellant now appeals
the district court's order 1) valuing the 401(k) account; 2) denying
appellant's motion for termination of the reservation of spousal maintenance;
3) denying appellant's motion for transfer of specifically listed personal
property; and 4) denying appellant's motion to reestablish "college accounts."
D E C I S I O N
Respondent argues that appellant is precluded from challenging
the valuation of the 401(k) account because appellant failed to timely appeal
the December 23, 1997, order valuing the 401(k) account. In marital
dissolution actions, an appeal from an order may be taken within 30 days after
an adverse party serves written notice of filing. Minn. R. Civ. App. P.
104.04, subd. 1. At a minimum, the notice of filing must state what has been
filed and when. Rieman v. Joubert, 376 N.W.2d 681, 684 (Minn.
1985). Respondent's notice of filing states that the order was dated December
23, 1997, and that it was filed with the district court clerk, but the notice
does not indicate the date the order was filed. The order was filed on December
24, 1997. Because respondent's notice does not indicate when the order was
filed, it is not an effective notice of filing and did not limit the time to
appeal the order. See Garcia v. Commissioner of Pub. Safety, 572
N.W.2d 311, 313 (Minn. App. 1997) (service of letter that does not contain
minimum elements for notice of filing, including date of filing, does not limit
An appellate court will not reverse a trial court's valuation
of an asset unless it is "clearly erroneous on the record as a whole."
Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). An
appellate court does not require the trial court to be exact in its valuation
of assets; "it is only necessary that the value arrived at lies within a
reasonable range of figures." Johnson v. Johnson, 277 N.W.2d 208,
211 (Minn. 1979) (citing Hertz, 304 Minn. at 145, 229 N.W.2d at 44).
Appellant challenges the district court's valuation of the 401(k) account.
Error, however, is never presumed on appeal. White v. Minnesota Dep't of
Natural Resources, 567 N.W.2d 724, 734 (Minn. App. 1997) (quoting
Midway Ctr. Assocs. v. Midway Ctr. Inc., 306 Minn. 352, 356, 237
N.W.2d 76, 78 (1975)), review denied (Minn. Oct 31, 1997).
Appellant points to no evidence in the record indicating that the court erred.
Therefore, we affirm the district court's valuation of the account.
"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). A maintenance award may be modified only upon clear proof
of facts showing a substantial change in circumstances. Wiese v.
Wiese, 295 N.W.2d 371, 372 (Minn. 1980).
A movant for maintenance modification must not only demonstrate the
existence of a substantial change of circumstances, but is also required to
show that the change has the effect of rendering the original maintenance award
both unreasonable and unfair.
Beck v Kaplan, 566 N.W.2d 723, 726 (Minn. 1997).
Appellant did not present any evidence at the hearing to prove a change in
circumstances; therefore, the district court did not abuse its discretion in
denying appellant's request to cease holding the issue of spousal maintenance
Appellant moved to compel respondent to produce certain
property he alleged he was awarded in the judgment. The district court found
respondent's testimony that she did not have that property to be credible. We
defer to that finding. See Sefkow v. Sefkow, 427 N.W.2d 203, 210
(Minn. 1988) (appellate courts defer to district court credibility
determinations). Because the district court also ruled that some of the
property appellant sought was not awarded to him in the judgment, it construed
the portion of appellant's motion seeking that property to be a motion to
modify the property division. See Minn. Stat. § 518.64,
subd. 2 (Supp. 1997) (absent circumstances listed in Minn. Stat. §
518.145, subd. 2, property division is final). Because the judgment is clear
that the property in question was not awarded to appellant and because
appellant made no argument supporting a motion to modify the original property
division, the district court did not abuse its discretion in denying
appellant's motion. See Head v. Metropolitan Life Ins. Co., 449
N.W.2d 449, 452 (Minn. App. 1989) (stating existence of ambiguity in a
dissolution judgment is legal question), review denied (Minn.
Feb. 21, 1990); see also 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 in
appellant's brief is waived unless prejudicial error is obvious).
All divisions of personal property under section 518.58 are
final and may be revoked or modified only pursuant to section 518.145, subd. 2.
Minn. Stat. § 518.64, subd. 2(e). The Piper Jaffray accounts were
determined in the original judgment to be respondent's non-marital property.
Although appellant appealed that judgment to this court in 1996, he did not
appeal the determination that the Piper Jaffray accounts were non-marital.
See Frendin, 1996 WL 589066 at *1. The determinations made in an
appealable order are final after the time for appeal has expired which is the
situation here. Dieseth v. Calder Mfg. Co., 275 Minn. 365,
370-71, 147 N.W.2d 100, 103 (1966).
Finally, appellant requests that this court order the trial court's contempt
order of September 25, 1997, permanently stayed. Appellant provided no
argument or support for this request. Issues not briefed on appeal are waived.
Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).
[*]Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.