This opinion will be unpublished and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


Lynn W. Ellis, Jr.,


Andrea Wenz,

Standard Federal Bank,

Filed November 23, 1999
Mulally, Judge[*]
Concurring in part, dissenting in part, Crippen, Judge

Wright County District Court
File No. C798739

David L. Olson, Suite 1200 The Colannade, 5500 Wayzata Boulevard, Minneapolis, MN 55416 (for respondent Ellis)

Dennis L. Peterson, Nelson Peralta, Peterson, Fishman, Livgard & Capistrant, P.L.L.P., 3009 Holmes Avenue South, Minneapolis, MN 55408 (for appellant)

Stephen E. Yoch, Maun & Simon, PLC, 801 Nicollet Mall, Suite 2000, Minneapolis, MN 55402-2534 (for respondent Standard Federal Bank)

Considered and decided by Crippen, Presiding Judge, Short, Judge, and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N


Respondent purchased property when he and appellant were cohabitants. He brought an action for partition of the property and was awarded judgment. Appellant challenges the judgment, arguing lack of subject matter jurisdiction, error in denying a jury trial, and error in calculation of the parties' contributions. Because the district court had jurisdiction and did not err in denying jury trial or in calculating contributions, we affirm.


Appellant Andrea Wenz and respondent Lynn Ellis purchased a rural home for $233,700 in July 1995. Ellis provided $1,000 in earnest money and $29,226.66 as a down payment; he signed the mortgage and the mortgage note, but Wenz did not. Ellis and Wenz moved in; Ellis made the monthly $1,500 mortgage payments. For about eight months, Wenz paid him $400 monthly to defray part of the payment.

By late 1997, the parties' relationship had deteriorated and Ellis brought this action for partition. He later amended the complaint to add respondent Standard Federal Bank, holder of the mortgage, as a codefendant. The bank crossclaimed against Wenz, seeking reformation of the mortgage on the ground that the omission of Wenz's name was inadvertent. Wenz moved to dismiss for lack of jurisdiction and later moved for a jury trial on all issues; both motions were denied.

Following trial, the court ordered the sale of the property to be sold with 96.13% of the proceeds going to Ellis and 3.87% to Wenz and the reformation of the mortgage to add Wenz as a mortgagor.[1] Wenz moved for amended findings; her motion was denied. On appeal, she alleges lack of subject matter jurisdiction over the partition action, error in the denial of a jury trial, and error in the court's calculation of the parties' contributions to the property.


1. Subject Matter Jurisdiction

This court may review subject matter jurisdiction de novo even absent a motion for a new trial. See Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 597 n. 3., (Minn. App. 1995) (citing Berke v. Resolution Trust Corp., 483 N.W.2d 712, 715 (Minn. App. 1992) review denied (Minn. May 21, 1992), as an example of a case in which subject matter jurisdiction, was reviewed de novo absent a motion for a new trial).

On the basis of the parties' understanding that ownership of the property would be in proportion to financial contribution, the district court resolved the partition action by ordering that proceeds from the property sale be divided in proportion to financial contribution. See Minn. Stat. § 558.01 (1998) (providing that a joint tenant or tenant in common of real property may bring an action against another tenant for partition or sale and division of the proceeds); Minn. Stat. § 558.04 (1998) (providing that title to the property and rights of the parties are to be established by evidence or written stipulation and that the court shall render judgment for partition or sale in a proper case); Minn. Stat. § 558.05 (1998) (providing that when one party's title to an undivided share of the property is proved or admitted, the court shall order partition or sale and cause the share or the proceeds therefrom to be allotted to that party).

Wenz argues that the court lacked jurisdiction because of Minn. Stat. § 513.076, (1998) providing that, absent a written contract between cohabiting individuals,

the courts of this state are without jurisdiction to hear and shall dismiss as contrary to public policy any claim by an individual to the earnings or property of another individual if the claim is based on the fact that the individuals lived together in contemplation of sexual relations and out of wedlock within or without this state.

There was no written agreement between Ellis and Wenz, but the statute does not apply because Ellis's complaint did not lay claim to Wenz's "earnings or property" and was not based on the fact of their cohabitation.

Wenz relies on In re Estate of Eriksen, 337 N.W. 2d 671, 673-74 (Minn. 1983) which held that the cohabitation statutes do not apply "where the claimant does not seek to assert any rights in the property of a cohabitant but to preserve and protect her own property." But in Eriksen, each party had contributed equally to the purchase and maintenance of the home and to the life insurance policy used to pay off part of the mortgage when one party died; here, appellant did not contribute equally to the purchase and maintenance of the parties' home. See also In re Estate of Palmen, 588 N.W. 2d 493 (Minn. 1999) (applying Eriksen and holding that Minn. Stat. §§ 513.075 and 513.076 did not preclude jurisdiction over the claim of a cohabitant to recover for her labor and supplies contributed to a log cabin on her partner's property); Mechura v. McQuillan, 419 N.W.2d 855 (Minn. App. 1988) (distinguishing Eriksen and holding that a cohabitant who had contributed nothing to the purchase price of real property had no legal or equitable interest in it).

The district court properly exercised jurisdiction over the partition action.

2. Denial of Jury Trial

The court denied Ellis's request for a declaratory judgment that he was sole owner of the property. Wenz contends that this request entitled her to a jury trial.[2] We note initially that, like subject matter jurisdiction, a new trial motion is not required to preserve for appeal the question of whether Wenz was entitled to a jury trial. Tyroll v. Private Label Chemicals, Inc., 505 N.W.2d 54, 57 (Minn. 1993). "Whether there is a right to a jury trial is determined by the nature and character of the controversy, determined from all of the pleadings" and denial of a jury trial is reviewed de novo. See id.

Appellant argues that she is entitled to a jury trial on all issues because this is actually a declaratory judgment action. But

[t]he fact that a declaratory judgment is sought neither restricts nor enlarges any right to a jury trial that would exist if the issue were to arise in a more traditional kind of action for affirmative relief.

Northgate Homes, Inc. v. City of Dayton, 126 F.3d 1095, 1099 (8th Cir. 1997) (citations omitted). The issues here, i.e. ownership and division of the real property, arose in the context of the partition action, not the declaratory judgment action. If Wenz had no right to a jury trial of the partition action, she has no right to a jury trial in the declaratory judgment action.

Nor are we persuaded by her alternative argument that this is an action in ejectment, entitling her to a jury trial. See also Sina v. Schifsky, 296 Minn. 528, 208 N.W.2d 302 (1973) (holding that when the thrust of an action is equitable, e.g. cancellation of a conveyance of property, adding a count of ejectment does not convert the action to an action at law and entitle the plaintiff to a jury trial). The district court did not err in denying Wenz's motion for a jury trial.

3. The court's calculations

The district court found that Wenz contributed $4,300 to the acquisition and improvement of the property, that Ellis had contributed $106,952, and that of the $111,252 total, Ellis contributed 96.13% and Wenz 3.87%. Findings of fact shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01.

Wenz argues that because she paid between $9,000 and $15,000 for the parties' food and supplies after she stopped contributing $400 monthly to the mortgage, this amount should be added to her contribution and subtracted from Ellis's contribution, changing Ellis's percentage to 82.36% and Wenz's percentage to 17.64%. Wenz argues for amended findings in accord with these calculations.

Wenz offers no support for this argument, and we see no basis for it in logic or the facts. The parties' expenditures for food and supplies presumably existed and were borne by Ellis while Wenz was paying $400 monthly for the mortgage.

Particularly in light of the district court's opportunity to judge the credibility of the witnesses, its findings on the parties' contributions were not clearly erroneous.



CRIPPEN, Judge (concurring part, dissenting in part)

Although I concur with the majority's determinations that this action is not beyond the district court's subject-matter jurisdiction and that appellant is not entitled to a jury trial, it is my opinion that neither the law nor the facts permit the trial court's decision to ignore appellant's indirect contributions to the acquisition of real estate jointly owned by the parties.

This case is among others that should alert the courts to the need for a more equitable approach to the unique problem of partitioning real estate purchased jointly or in common by an unmarried, cohabiting couple who do not have a written agreement addressing division of their property as discussed in Minn. Stat. §§ 513.075 or .076. These provisions state that absent a written agreement, the courts have no jurisdiction over claims based solely on cohabitation. Minn. Stat. § 513.076. In spite of this statutory rule, this and other cases come to the court for division of real estate assets. See In re Estate of Palmen, 588 N.W.2D 493, 495 (Minn. 1999) (stating statutory bar inapplicable if one party merely seeking to "preserve and protect" own property and not seeking "to assert any rights in the property of a cohabitant") (citation omitted). In real estate partition proceedings, as respondent acknowledges, the fundamental aim is to achieve an equitable result. Carlson v. Olson, 256 N.W.2d 249, 255 (Minn. 1977) (emphasizing that partition statute "does not restrict equity's normal functions as an aid to complete justice"). The result here is not equitable.

The majority states that the trial court apportioned the property's proceeds based on "the parties' understanding that ownership of the property would be in proportion to financial contribution." Although it is generally equitable to hold parties to their agreements, it is evident that the trial court did not recognize the existence of a governing contract. The court found that the parties "did not discuss what would happen to the Property in the event they did not get married, or if the relationship were to end after the purchase of the property."

The trial court divided the parties' real estate investment based on its finding that appellant's share of the property's equity "should be" based solely on her "direct" cash contributions to the acquisition and improvement of the property. "Money is fungible." Allstate Sales and Leasing Co. v. Geis, 412 N.W.2d 30, 33 (Minn. App. 1987). The trial court's direct-contribution-only calculation ignores this fact. The amounts appellant spent on non-mortgage expenses meant that respondent did not have to pay those expenses. This, in turn, allowed respondent directly to apply his funds for real estate acquisition payments. Respondent's ability to trace a large portion of his money directly to the purchase of the real estate is correlated to appellant's inability to do so.

Equity cannot be accomplished here without accounting for the parties' indirect contributions to the property. Barring unusual circumstances, the apportionment of interests should be determined by comparing the total investment each party has made in meeting the parties' joint needs during cohabitation.

In 1983, the supreme court recognized the equitable interest that a cohabitant can establish on the basis of an equal contribution to the acquisition of property. In re Estate of Eriksen, 337 N.W.2d 671, 674 (Minn. 1983). There, the court affirmed the imposition of a constructive trust on the estate of a deceased cohabitant, noting that the woman with whom the deceased cohabited shared in the mortgage payment, utilities, and life insurance on the deceased cohabitant. Id. at 672. In contrast, this court has determined that the courts may not recognize such an interest for a cohabitant that has made no acquisition payments. Mechura v. McQuillan, 419 N.W.2d 855, 858 (Minn. App. 1988). Neither of these cases deals squarely with the question of whether the courts should consider contributions to the needs of the couple that are not directly channeled to the purchase of the real estate that is being apportioned; the equitable purpose of a partition proceeding cannot be achieved unless the district court is allowed to render a ruling which, under all of the circumstances, is fair. See Nardini v. Nardini, 414 N.W.2d 184, 188 (Minn. 1987) (stating "equity denotes fairness and requires the application of the dictates of conscience or the principles of natural justice to the settlement of controversies"); see also Palmen, 588 N.W.2d at 496 (noting party did not "seek to recover the value of general contributions she made to the relationship" and not addressing whether such contributions were legally significant in respect to commonly owned assets).

I respectfully dissent from the portion of the majority opinion affirming the apportionment of the property's proceeds. The matter should be remanded for a division of the real estate in portions representative of what each party has contributed to their acquisitions and expenditures during cohabitation, thus including both direct and indirect contributions to the acquisition of this asset.


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

[1] Appellant does not challenge the reformation of the mortgage except in contending that she is entitled to a jury trial on all issues because the absence of a jury "tainted" the entire previous trial.

[2] We note that appellant prevailed on the claim that would be re-tried to a jury.