Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Robert Charles Carroll, petitioner,
Pauline Michelle Carroll,
Filed March 17, 1998
File No. F3946431
John C. Sanders, 110 Anoka Office Center, 2150 Third Avenue North, Anoka, MN 55303 (for respondent)
Timothy S. Choal, 155 South Wabasha Street, Suite 103, St. Paul, MN 55107 (for appellant)
Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Davies, Judge.
Appellant challenges the district court's attachment order on the ground that respondent failed to prove circumstances that support an attachment.
On April 28, 1997, respondent moved for a preliminary attachment order pursuant to Minn. Stat. § 570.025 (1996), requesting the court to direct the sheriff to seize the boat, motor, and trailer. Respondent stated in his affidavit that appellant owed him $10,437 in child support arrearages, and he estimated the value of the boat, motor, and trailer to be $2,500.
Respondent claimed in his affidavit that on October 18, 1996, appellant surreptitiously entered his home and removed personal property in violation of a temporary order and that appellant's willingness to disobey court orders was demonstrated by her incarceration "in connection with her failure to comply with conditions the Court set when she was convicted of evading Minnesota income taxes." Finally, respondent stated that appellant's new boyfriend was from North Dakota and that respondent believed appellant would remove the boat, motor, and trailer to North Dakota, beyond the court's jurisdiction. Respondent suggested that appellant's past conduct illustrates her propensity to circumvent her child support obligation, and he requested attachment of the property until he had the opportunity to docket his child support arrearages as a judgment and execute against the property. Appellant filed no affidavit in opposition to respondent's motion.
The district court issued a preliminary attachment order on April 29, 1997. After a hearing on the matter, the court issued an order on June 11, 1997, requiring the Cass County Sheriff to seize the boat, motor, and trailer, which were in the possession of respondent's father, while the "matter [was] under advisement and pending a final decision." On July 17, 1997, the court issued a permanent attachment order. The district court found that respondent had reasonable cause to believe that if appellant had possession of the property, she would remove it from the state and, thereby, the jurisdiction of the court, specifically relying on the facts that appellant (1) previously removed property from respondent's possession; (2) had been incarcerated for evading income taxes and professed willingness to spend time in jail to uphold her beliefs; and (3) has a boyfriend who lives in North Dakota and therefore "has an opportunity to remove the property out of the court's jurisdiction." This appeal followed.
Appellant argued to the district court that it did not have jurisdiction to issue the preliminary attachment order because appellant had filed an appeal from the underlying judgment and decree approximately two weeks earlier. Appellant also asserts this claim in her statement of the case but did not brief the issue. Generally, if a party does not brief an issue, we deem it waived. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982). This issue is, therefore, is not properly before us. But we nevertheless note that a district court's jurisdiction is suspended only as to those matters that are necessarily involved in the appeal. Spaeth v. City of Plymouth, 344 N.W.2d 815, 824 (Minn. 1984) (quoting State v. Barnes, 249 Minn. 301, 302-03, 81 N.W.2d 864, 866 (1957)). And the district court retains jurisdiction as to those matters independent of or supplemental to the appeal or collateral to the proceeding in which the appealed order or judgment was rendered. Id. Because the attachment order does not involve reconsideration of the merits of the judgment and decree, the district court had subject matter jurisdiction to issue an attachment order for the subject property. See id. at 825 (citing Terket v. Lund, 623 F.2d 29, 33-34 (7th Cir. 1980), for proposition that district court could decide claim for attorney fees because it did not involve reconsideration of the merits).
Appellant argues that the district court erred in finding that the circumstances meet the statutory standards for attachment. Where a district court weighs statutory criteria in light of found basic facts,
the [district] court's conclusions of law will include determination of mixed questions of law and fact, determination of "ultimate" facts, and legal conclusions. In such a blend, the appellate court may correct erroneous applications of the law. As to the [district] court's conclusions on the ultimate issues, mindful of the discretion accorded the [district] court in the exercise of its equitable jurisdiction, the reviewing court reviews under an abuse of discretion standard.
Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990).
a. Standards for attachment
Appellant argues that the district court erred in finding that the circumstances supported any of the grounds required for attachment pursuant to Minn. Stat. § 570.02, subd. 1 (1996). As a proceeding ancillary to a civil action, a claimant may request an order for attachment as security for the satisfaction of any judgment the claimant may recover. Minn. Stat. § 570.01 (1996). A court may issue an order of attachment to provide security for satisfaction of a judgment in, among others, the following situations:
(1) when the respondent has assigned, secreted, or disposed of, or is about to assign, secret, or dispose of, any of the respondent's nonexempt property, with intent to delay or defraud the respondent's creditors;
(2) when the respondent has removed, or is about to remove, any of the respondent's nonexempt property from this state, with intent to delay or defraud the respondent's creditors.
Minn. Stat. § 570.02, subd.1. The fact that a party has in the past concealed and secreted property is a factor that can support an attachment order. See Bongard v. Bongard, 342 N.W.2d 156, 160 (Minn. App. 1983) (relying in part on statement in affidavit that appellant had previously concealed and secreted property from respondent to support an attachment order). The district court found that the facts supported attachment under both clauses 1 and 2 of subdivision 1.
Although the district court made no specific finding regarding appellant's intent to assign, secret, or dispose of her property with intent to delay or defraud respondent, the court considered and, in its supporting memorandum, referred to respondent's affidavit, which described past instances where appellant removed property in violation of a court order and her incarceration for violating a court order. The court also reviewed the judgment and decree, which discussed appellant's refusal to file income tax returns or pay taxes for a number of years and her willingness to spend time in jail to uphold her beliefs, "depending on the sentence." Finally, the court cited subdivision 1(1) in its supporting memorandum. We conclude that that the district court did not abuse its discretion in concluding that respondent presented evidence that supports an attachment order under Minn. Stat. § 570.02, subd. 1(1).
The district court also found that respondent had "reasonable cause to believe that if [appellant] gain[ed] possession of the property," she would remove it from the state and, thereby, from the court's jurisdiction. Appellant contends that there is evidence to contradict the district court's finding that her boyfriend lives in North Dakota. Generally, appellate courts refuse to address issues and theories not raised before or decided by the district court. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). Appellant made no claim below that her boyfriend did not live in North Dakota, she filed no affidavit opposing respondent's motion for attachment, and she provided the district court with no other evidence that supports the argument she now makes. We will not consider evidence that was not presented to the district court. We conclude that the district court did not abuse its discretion in finding implicitly that respondent presented evidence to support an attachment order under Minn. Stat. § 570.02, subd. 1(2).
b. Risk to collectibility
Appellant contends that the court erred in finding that respondent had properly demonstrated that without an attachment order there is a risk to the collectibility of a judgment for child support arrearages. Even if a claimant has provided facts to show the existence of at least one of the grounds in section 570.02, a court may not issue an attachment order if "the circumstances do not constitute a risk to collectibility of any judgment that may be entered." Minn. Stat. § 570.026, subd. 3(1) (1996). Appellant argues that because her wages currently are being garnished, there is no risk to the collectibility of the child support arrearages. The district court reasoned that although "garnishment does provide some security on the collectibility of [a] judgment, it does not provide an absolute security." The record shows that not only will it take approximately seven years by garnishment to collect appellant's child support arrearages, but also that she has been unwilling in the past to pay her child support obligations and other debts. We conclude that the district court did not abuse its discretion in finding that the circumstances constitute a risk to the collectibility of any judgment that may be entered.
[ ]1 A respondent is "a party against whom an order of attachment is requested." Minn. Stat. § 570.011, subd. 3 (1996).