This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-99-607

In Re the Marriage of:
Sharon Kay Young Timlin, petitioner,
Respondent,

vs.

William Leo Timlin, et al.,
Appellants.

Filed October 26, 1999
Affirmed in part and remanded in part; motion granted
Lansing, Judge

Hennepin County District Court
File No. 220789

Marilyn J. Michales, Honsa & Michales, P.A., 5500 Wayzata Boulevard, Suite 520, Minneapolis, MN 55416 (for respondent)

Paul F. Leutgeb, 140 West 98th Street, Minneapolis, MN 55420 (for appellants)

Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

On appeal from a postjudgment order, William Timlin and his attorney challenge the amount and source of spousal maintenance and the district courtís sanction for failing to comply with a court order. Sharon Timlin moves for an award of the attorneysí fees she incurred on appeal. We affirm the imposition of a sanction for noncompliance and remand for further findings on spousal maintenance. We award Sharon Timlin $1,000 in attorneysí fees.

FACTS

William and Sharon Timlin dissolved their marriage through a stipulated judgment the district court entered on July 16, 1998. Since the entry of judgment, Sharon Timlin and her attorney have continuously attempted to enforce the judgment, effectuate the property distribution, and conclude the reserved issues. Motion papers, affidavits, and court orders contained in the record demonstrate that, during this same period, William Timlin and his attorney have directly or indirectly circumvented the enforcement of the judgment. The scope of this appeal is limited to two of several such instances evidenced in the record, but a brief overview is necessary to analyze the propriety of the district courtís sanctions.

In October 1988, Sharon Timlin moved to compel William Timlin to comply with the income disclosure requirement of the judgment and to complete the documents necessary to effectuate its mortgages provision. The judgment provided sequentially for mortgages of $40,000 as security for Sharon Timlinís nonmarital interest in the homestead, $10,000 for her attorneysí fees, and $10,000 for William Timlinís attorneysí fees. The specific sequence for the mortgages was reinforced in the judgment section that ordered the distribution of proceeds upon sale of the homestead.

The purpose of the income disclosure was to establish a spousal maintenance amount for Sharon Timlin. The judgment required William Timlin to pay $750 spousal maintenance for the month of March 1998, and thereafter reserved the issue, pending further information on the partiesí respective incomes. William Timlin had been earning a salary of $42,000 a year, but was involuntarily terminated from his employment in February 1998. In a supplemental affidavit submitted in support of her motion, Sharon Timlin indicated that her unemployed status remained unchanged and that she had not received money or gifts from another source. William Timlin submitted nothing in opposition to the motion to compel. Instead, he made a counter-motion asking the court to amend the judgment based on various frauds Sharon Timlinís counsel had allegedly committed on the court.

In its November 30, 1998, order, the court granted Sharon Timlinís motion, stating that her requests "reiterate[d] the mandates of the [j]udgment." The court denied William Timlinís motion, rejecting each of the claims of fraud and reprimanding William Timlinís attorney for having attempted "under the guise of Ďfraudí" to correct alleged factual mistakes when the time for amended findings had passed.

The court ordered William Timlin to provide the requested income information within 30 days. It also ordered him to execute the documents related to the judgmentís mortgages provision in the designated amount and specific sequence within the same 30-day period.

On December 28, 1998, William Timlin arrived at Sharon Timlinís counselís office for the scheduled signing of the mortgage documents, but his attorney failed to appear. Eventually the attorney was contacted at his office, but would not speak with anyone but his client. After William Timlin spoke with his attorney, he left the office without explanation and without signing the papers.

Because the failed signing was close to the expiration of the time allowed in the courtís November 1998 order, Sharon Timlinís attorney immediately faxed William Timlinís attorney, instructing him how to contact the mortgage closer. William Timlinís attorney ignored the letter and neglected to contact the closer. It was later discovered that on November 11, 1998, after the motion to compel and before the court entered its order, William Timlin had executed and filed a $10,000 mortgage in favor of his attorney.

In late December of 1998, Sharon Timlin moved to hold William Timlin in contempt for flouting the November order. She served his attorney with the motion, but was unsuccessful in serving William Timlin, who avoided service by refusing to come to the door even though he was in his house. Sharon Timlin amended her motion to hold William Timlinís attorney in contempt and on January 11, 1999, served the amended motion on him. The amended motion requested the court to vacate, on the basis of fraud, that part of the judgment equally dividing William Timlinís United States Air Force pension and instead award the entire pension to Sharon Timlin.

The court heard the motion on January 14, 1999. In its order of February 10, 1999, the court vacated parts of the judgment based on fraud on the court, awarded Sharon Timlin $598.50 in permanent spousal maintenance to be withheld from William Timlinís Air Force pension, and sanctioned William Timlinís attorney for his failure to comply with the November 30, 1998, order. The court found that the execution of the mortgage to his attorney earlier in November thwarted the judgment by providing the attorney a security interest in the homestead superior to that of Sharon Timlin or her counsel. As a sanction, the court ordered the attorney to execute a release of his $10,000 mortgage. William Timlin and his attorney appeal from the February 10, 1999 order.[1]

D E C I S I O N

I

The district court has broad discretion in determining spousal maintenance. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). The court must, however, make findings that reflect it considered the relevant factors in support of an award. Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989). Findings are necessary even if the record supports the award. Stevens v. Stevens, 501 N.W.2d 634, 637 (Minn. App. 1993). When spousal maintenance is reserved in the judgment, the court must evaluate the partiesí circumstances at the time of the motion. Id. at 636-37.

The order awarding Sharon Timlin $598.50 monthly in permanent spousal maintenance from William Timlinís half of his United States Air Force pension is not supported by adequate findings. Equally important, a previously distributed monthly pension may not be directly converted into maintenance. See Stevens, 501 N.W.2d at 638 (district court lacks jurisdiction to convert original award of marital property into maintenance award); Erickson v. Erickson, 452 N.W.2d 253, 255 (Minn. App. 1990) (district court cannot modify property division after original judgment has been entered and time for appeal has run). Although the district court vacated parts of the judgment because of fraud on the court, section 11(B) allocating 50 percent of the Air Force pension to Sharon Timlin and 50 percent to William Timlin was neither vacated nor amended. Because the judgment estimates the net monthly payment of the Air Force pension to be $1,200 each month, the courtís February 10 order requiring William Timlin to pay Sharon Timlin $598.50 monthly from the Air Force pension appears to impermissibly convert William Timlinís property distribution into a maintenance payment. If, on the other hand, the district court intended to sequester William Timlinís half of the Air Force pension, rather than relabel it, the court must make additional findings on remand to support its sequestration order and demonstrate that it considered the factors in Minn. Stat. ß 518.24 (1998).

The district courtís February 10 spousal maintenance order is remanded for further findings on the respective needs and income of the parties and to provide support for ordering sequestration or to structure an award of spousal maintenance that will not improperly modify the marital property division. During the pendency of the appeal, William Timlin has disclosed additional income from re-employment compensation and Social Security disability payments. On remand the district court should review and evaluate that evidence and other evidence of William Timlinís income and assets to determine a maintenance amount.

II

We review a contempt order under an abuse-of-discretion standard. Search Warrant of Columbia Heights v. Rozman, 586 N.W.2d 273, 275 (Minn. App. 1998), review denied (Minn. Jan. 21, 1999). The alleged contemnor must have acted "contumaciously, in bad faith, and out of disrespect for the judicial process." Estate of Stollmeyer v. May, 580 N.W.2d 58, 60 (Minn. App. 1998) (quoting Minnesota State Bar Ass'n v. Divorce Assistance Ass'n, Inc., 311 Minn. 276, 284, 248 N.W.2d 733, 740 (1976)). The sanction should induce future compliance and "make the rights of one individual as against another meaningful." Id. (quoting Hopp v. Hopp, 279 Minn. 170, 174, 156 N.W.2d 212, 216 (1968)).

The district court did not abuse its discretion by sanctioning William Timlinís attorney. The evidence demonstrates that the attorney pointedly disregarded the judgment and the courtís November 1998 order. He did not assist in providing Sharon Timlin or her attorney the requested income information. And, as the district court specifically found, he not only failed properly to execute the mortgages within the 30-day period, but also affirmatively arranged to execute and file only the mortgage for his fees, thereby obtaining a security interest superior to Sharon Timlinís nonmarital interest in the property and her attorneysí fees. The court, by requiring William Timlinís attorney to release his second mortgage interest in the homestead, in part merely restored the security interests the judgment intended. The sanction cancels the mortgage and its attendant priority, but does not alter William Timlinís underlying fee obligation. The narrowly drawn sanction demonstrates not only restraint, but also exemplifies the district courtís careful and thoughtful actions in handling this difficult case.

Finally, we hold that the court did not abuse its discretion by hearing the contempt motion, despite untimely service. See Minn. R. Gen. Prac. 303.03 (b) (court "may" cancel hearing if motion untimely). By January 14, 1999, William Timlinís attorney had more than adequate notice of the November 30, 1998 order. See Rozman, 586 N.W.2d at 277 (sufficient notice of order allegedly violated, not service, is necessary to impose contempt sanctions). On this record, the district court acted well within its authority by proceeding with the hearing.

III

Sharon Timlin raises issues relating to the district courtís jurisdiction to transfer title and occupancy of the homestead to her. In part these issues respond to statements in William Timlinís brief addressing his January 7, 1999, chapter 7 bankruptcy petition. This court, in an order dated April 6, 1999, vacated that part of the February 10, 1999, order transferring title and occupancy of the homestead because the transfer affected property included in William Timlinís bankruptcy estate subject to an automatic stay. Because the orderís title transfer and occupancy provisions were vacated, the adequacy of record support for the district courtís action is not an issue in this appeal.

IV

Sharon Timlin moves for attorneysí fees on appeal. Her separate motion was served on William Timlin more than 21 days before it was filed with this court, as required by Minn. Stat. ß 549.211, subd. 4(a) (1998). We are affirming the district courtís determination that contempt and sanctions are warranted in this case because William Timlin and his attorney acted improperly and attempted repeatedly to circumvent enforcement of the judgment for Sharon Timlin. We decline to characterize the entire appeal as taken for improper purposes, but agree that the challenge to the finding of contempt and to the sanction is unwarranted by existing law and lacks evidentiary support. In light of the results obtained on appeal, the entire record, and the partiesí submissions on the issue of appellate fees, an award of $1,000 is appropriate.

Affirmed in part and remanded in part; motion granted.

[1] The preferred procedure would have been for William Timlin's attorney to have filed a separate appeal and to have continued to retain counsel, as he did below, to represent him in appealing the sanction. We caution attorneys to avoid conflicts of interest that arise from attempting to represent themselves as well as their client in the same appeal.