This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-99-154

Robert B. Stiles,

Appellant,

vs.

Karen L. Stiles,

Respondent.

Filed June 22, 1999

Affirmed

Schultz, Judge[*]

Hennepin County District Court

File No. 72680

Deno W. Berndt, Warchol, Berndt & Hajek, P.A., Suite 110, 3433 Broadway Street Northeast, Minneapolis, MN 55413-1783 (for appellant)

David L. Olson, David L. Olson Law Office, Suite 1200 The Colonnade, 5500 Wayzata Boulevard, Minneapolis, MN 55416 (for respondent)

Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Schultz, Judge.

U N P U B L I S H E D O P I N I O N

SCHULTZ, Judge

Appellant challenges the trial court determination that respondent could satisfy appellant's marital lien on a homestead by refinancing, rather than selling, the homestead. Appellant also challenges the trial court's determination of the amount of appellant's marital lien. Finding no merit in these contentions, we affirm.

FACTS

In 1981, the parties divorced. The judgment and decree provided that respondent Karen Stiles retained the homestead, subject to appellant Robert Stiles's marital lien of $12,000 plus interest. The judgment and decree also provided that the homestead

shall be placed upon the market for sale at fair market value within thirty (30) days after the happening of any of these conditions: * * * The 18th birthday or emancipation * * * of the last minor child of the parties residing in the homestead.

The parties' youngest child turned 18 in February 1992, but appellant made no effort to force a sale or obtain satisfaction of his lien until June 1998. At that time, the parties commenced negotiations regarding the lien amount, the valuation of the homestead, and the amount of appellant's past-due child support and medical insurance payments. Because negotiations failed, appellant brought a post-decree motion to enforce the terms of the 1981 judgment and decree. The trial court held that respondent need not sell the property so long as she could satisfy appellant's lien via refinancing and determined that the amount due appellant was $43,013. This appeal followed.

D E C I S I O N

1. Refinancing

Appellant contends that the trial court erred by allowing respondent to refinance the homestead because the 1981 judgment and decree mandates a sale. Appellant argues that the trial court "did not have jurisdiction to amend the Judgment and Decree to provide for an alternate means of disposition of Appellant's marital lien."

But appellant's argument fails for a number of reasons. First, assuming arguendo, that the trial court did err, appellant has shown no prejudicial error. See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993) (stating that appellants have burden on appeal to show prejudicial error), review denied (Minn. June 28, 1993). Whether respondent sells the house or satisfies the lien via refinancing, appellant gets a check for the properly determined sum of money.

Second, there is no error on the part of the trial court. Appellant correctly notes that the portion of a dissolution decree awarding one party a lien on the homestead is a division of property. Kerr v. Kerr, 309 Minn. 124, 126, 243 N.W.2d 313, 314 (1976). And that property divisions are final and can only be modified under limited circumstances. Ulrich v. Ulrich, 400 N.W.2d 213, 218 (Minn. App. 1987) (concluding property divisions are final and not subject to modification except where they are result of mistake or fraud); see Minn. Stat. § 518.145, subd. 2 (1998) (listing circumstances under which judgment may be reopened). But a trial court has the power to implement or construe the provisions of a judgment and decree so long as the parties' substantive rights are not changed. Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991); see also Hanson v. Hanson, 379 N.W.2d 230, 233 (Minn. App. 1985) (recognizing trial court jurisdiction to "fairly implement" provisions of an earlier decree). Under the judgment and decree, appellant's lien entitles him to a sum of money from respondent. As noted above, appellant receives the properly determined sum of money no matter how respondent satisfies the lien. His substantive rights do not change. Therefore, we affirm the district court's refusal to compel sale of the house.

Appellant waited six years to enforce his rights under the judgment and decree and, on this record, to allow him to force a sale at this late date, when respondent is able to satisfy her obligation via refinancing, is both inequitable and prejudicial to respondent. The trial court issued an appropriate order implementing the intent of the 1981 dissolution decree. The trial court's resolution of this issue has "a reasonable and acceptable basis in fact and principle." DuBois v. DuBois, 335 N.W.2d 503, 507 (Minn. 1983).

2. Appraisal of the Homestead

Appellant argues that the trial court erred in using an appraised value of the homestead determined when respondent was seeking refinancing. Appellant contends that he should have been allowed to present his own appraisal of the homestead. But appellant did not provide this court a transcript of the trial court proceedings and there is nothing in the record suggesting that this issue was raised below. Therefore, this court need not address the issue. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating reviewing court will not consider matters not presented to or considered by court below); Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995) (appellant bears the burden of providing an adequate record).

Moreover, there is nothing in the record suggesting clear error by the trial court in adopting the Norwest Mortgage valuation of the homestead. See Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975) (noting that 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").

3. The Amount of the Marital Lien

A district court's findings regarding the intended meaning of an ambiguous judgment should not be reversed unless it is clearly erroneous. Empire State Bank v. Devereaux, 402 N.W.2d 584, 587 (Minn. App. 1987).

The judgment and decree provides for "[t]he payment of all encumbrances" on the homestead, with the remaining balance to be "divided equally between the parties." Sometime after the divorce, but before the home was appraised by Norwest, respondent secured a home equity loan of $18,500. She used this money for capital improvements on the homestead. Finding that the appraised value of the home "took into consideration the home improvements," the trial court deducted the amount necessary to pay off this encumbrance from the appraised value of the homestead before determining appellant's share of the homestead's value.

Appellant does not dispute that the money was used for home improvement purposes. But appellant contends that the trial court erred by deducting the amount of this second mortgage because doing so "is clearly contrary to the intent of the Trial Court at the time of the Judgment and Decree." Appellant argues that the decree language providing for "[t]he payment of all encumbrances" meant only payment of the mortgage in place at the time of the judgment and decree.

But appellant's argument fails for two reasons. First, the language of the judgment could not be more clear, it calls for "[t]he payment of all encumbrances" and there is no evidence that the intent of the trial court at the time of the dissolution was the payment of only the existing mortgage.

Secondly, although appellant contends that respondent could theoretically "encumber all of the equity in the home, thereby depriving Appellant of substantially all of his interest," that is simply not the case here. Respondent did not use the loan proceeds for non-homestead related expenses. The entire $18,500, plus an additional $1,346 paid by respondent, was used for home improvements. Therefore, appellant benefited from the loan because the appraised value of the property is directly related to the condition of, and improvements made to, the property prior to the appraisal. The trial court did not err in subtracting the pay-off amount of the loan before determining appellant's share of the home's value.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.