O R D E R: In Re the Marriage of: Debra K. Parrington, petitioner, Respondent,
vs. Jonathan P. Parrington, Appellant. (CX-97-1651)

Considered and decided by Huspeni, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.


1. Our unpublished opinion was filed on March 10, 1998.

2. It is unclear from the opinion that the decisions of two different district court judges were being reviewed by this court.

3. We have added language on pages 2, 3, 4, and 8 of the opinion, to clarify the involvement of both judges.

IT IS HEREBY ORDERED: the opinion filed March 10, 1998, is withdrawn and the attached opinion, with amended language on pages 2, 3, 4, and 8, is substituted.

Dated: March 31, 1998

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In re the Marriage of:

Debra K. Parrington, petitioner,



Jonathon P. Parrington,


Filed March 10, 1998

Affirmed in part and reversed in part

Huspeni, Judge

Hennepin County District Court

File No. DC181797

John R. Hill, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Ave. S., Bloomington, MN 55431 (for appellant)

Barbara J. Gislason, Barbara J. Gislason & Associates, 219 S.E. Main St., Suite 506, Minneapolis, MN 55416 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.



Appellant challenges the district court's decisions to vacate two prior orders, to deny appellant's request for attorney fees, to impose a fine for late maintenance payments, and to limit appellant's recovery of overpaid maintenance. Because the district court abused its discretion in vacating the orders and denying attorney fees and erroneously applied a private penalty for late maintenance, but properly limited appellant's recovery of overpaid maintenance, we affirm in part and reverse in part.


Respondent Debra K. Parrington and appellant Jonathon P. Parrington were married in 1970 and divorced in 1994. As part of the March 23, 1994, stipulated decree, appellant was ordered to pay $6,250 per month in Level I spousal maintenance, $1,000 per month in Level II spousal maintenance,[1] and $1,750 per month in child support. Respondent was ordered to "assume and pay the monthly mortgage payments, [and] the home equity line of credit" and "to pay [appellant] any reasonable attorneys' fees incurred in obtaining" those payments.

The activity in the district court after entry of the decree is both extensive and complex. As a preliminary matter, we note that this appeal challenges orders issued by two different district court judges.

In June 1994, appellant moved to compel respondent to pay the home equity line of credit, the COBRA insurance premiums he had paid, and attorney fees. That same month respondent moved to compel appellant to pay the maintenance obligation. In November 1994, appellant moved for a reduction in Level I maintenance based on a change in his income.

On February 13, 1995, after hearings on the respective motions, the district court (district court judge number one) ordered appellant to pay a 3% per day penalty for late maintenance payments, to pay maintenance through electronic transfer, and to pay $1,500 in attorney fees. Appellant's notice of appeal was dismissed by this court as premature because his maintenance reduction motion was still pending. In April 1996, respondent filed a motion asking the court to amend the March 23, 1994, decree, arguing that the maintenance award was based on a substantially reduced income figure for appellant. Respondent also requested attorney fees.

On September 9, 1996, the district court (district court judge number two) reduced appellant's Level I monthly maintenance obligation to $3,700 retroactive to November 1994, determined that he was $9,000 in arrears for his Level II maintenance payments, and penalized him 3% a day on the delinquent amount. After offsetting the two amounts, the court ordered appellant's recoupment of overpaid maintenance by reducing monthly maintenance payments by $200. In a separate September 9 order, the court denied respondent's motion to amend the March 23 decree and her motion for attorney fees.

In October 1996, appellant moved to amend both September 9, 1996, orders and to vacate a portion of the February 13, 1995, order. Respondent moved to amend the September 9, 1996, orders, or in the alternative to grant a new trial. Both parties sought numerous changes to the September orders.

On February 21, 1997, the court (district court judge number two) vacated both September 9, 1996, orders in their entirety and incorporated the oral record from the hearing into the order. The oral record stated, in part:

This is an extraordinarily unusual circumstance to find a decision maker in a position of having to admit that a decision cannot be made * * *. I have had six months to consider it and it's rare that a day has gone by that I haven't tried to reach the bottom of what appears to be a bottomless pit of uncertainty.

* * * *

[T]his matter, if it must be addressed, clearly should be addressed in a special forum, a forum where all of the legal, accounting, and real life experiences can be taken into account in front of an individual who has the requisite experience and control to allow this matter to be streamlined and presented in as straightforward a manner as possible.

In March 1997, appellant filed both a notice of appeal and a petition for writ of mandamus, seeking to direct the district court to decide appellant's motion for attorney fees and reimbursement of insurance premiums. This court granted the writ in regard to the insurance premiums, but held that appellant's motion for attorney fees was implicitly denied when the court granted respondent $1,500 in attorney fees on February 13, 1995. This court also held that any appeal regarding the award of spousal maintenance was premature until the insurance issue had been decided. In August 1997, respondent was ordered to pay $799.10 in COBRA insurance premiums, thereby disposing of the final issue and rendering all prior orders appealable.


1. Vacated orders

Appellant argues that the district court had no authority to vacate the September 1996 orders that reduced appellant's maintenance obligation and denied respondent's motion to amend. "The decision to vacate a judgment is within the district court's discretion and that decision will not be reversed on appeal absent a clear abuse of discretion." Safeco Ins. Co. of America v. Dain Bosworth, 531 N.W.2d 867, 873 (Minn. App. 1995), review denied (Minn. July 20, 1995).

The incorporated record is silent on what statutory authority or legal theory the court relied upon in vacating the two September 9 orders. The court merely stated that the case "confounded" the court, that there was a "bottomless pit of uncertainty," and that "it would be unjust to allow orders which have such uncertainty to stand." The court also noted:

I cannot say that I am right or wrong, but I have a strong reason to doubt whether these orders do justice to the parties.

The authority to reopen or vacate orders and judgments under chapter 518 is governed by Minn. Stat. § 518.145, subd. 2 (1996):

Subd. 2. Reopening. On motion * * *, the court may relieve a party from a judgment and decree, order, or proceeding under this chapter, except for provisions dissolving the bonds of marriage, annulling the marriage, or directing that the parties are legally separated, and may order a new trial or grant other relief as may be just for the following reasons:

mistake, inadvertence, surprise, or excusable neglect;

newly discovered evidence * * *;

fraud * * *;

the judgment and decree or order is void; or

the judgment has been satisfied, released, or discharged, or a prior judgment and decree or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment and decree or order should have prospective application.

This statute is very similar to Minn. R. Civ. P. 60.02, except that the statute omits the equivalent to rule 60.02(f), which permits the vacation of an order for "any other reason justifying relief from the operation of the judgment." The supreme court has noted this distinction in holding that section 518.145 was "carefully crafted by the legislature" to omit paragraph (f) in order to limit the "areas of relief to those seeking vacation of judgment and decrees." Shirk v. Shirk, 561 N.W.2d 519, 522 n.3 (Minn. 1997).[2]

Respondent argues that the court has the equitable power to vacate a decision in the interest of justice, relying on DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755, 758 (Minn. 1981) (holding that courts have the "inherent power to grant equitable relief `as the facts in each particular case and the ends of justice may require.'"), and Sward v. Sward, 410 N.W.2d 442, 445 (Minn. App. 1987) (holding that it was proper for the court to use its equity power to restrain the husband from entering the homestead that was granted to wife), review granted (Minn. Sept. 30, 12987), appeal dismissed (Minn. Dec. 2, 1987).

Although we recognize that the court does have inherent equitable powers in some cases, this equitable power does not justify vacating the orders in this case. Vacation of the September orders by the district court could only be justified if the parties met the strict standards of Minn. Stat. § 518.145, subd. 2. See Shirk, 561 N.W.2d at 522 ("The sole relief from a judgment and decree lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2."). The court's equitable power in this case is restrained by the legislature's attempt to limit the "areas of relief" available to those seeking vacation under chapter 518. Shirk, 561 N.W.2d at 522 n.3.

Because the district court only cited confusion and uncertainty as its reason for vacating the September 9 orders, and confusion and uncertainty are not sufficient justification for vacating an order according to Minn. Stat. § 518.145, subd. 2, the district court abused its discretion by vacating those orders.

Even if we were to assume that the district court had the power to vacate the two September 9, 1996, orders under Minn. Stat. § 518.145, here, the court would have exercised this power without completing the task. When the district court vacated the orders, it made vague references to turning the case over to a special master, but did not make any final disposition of the case. The court simply left the parties with two vacated orders and no resolution of the several issues on which they had sought relief.

Therefore, we reinstate the two September 9, 1996, orders and shall review on the merits the issues brought by each party arising from those orders. These issues require us to address portions of the orders issued by both district court judges involved in this case.

2. Penalty provision

Whether a court has the power to impose a private fine is a question of law. A reviewing court is not bound by and need not give deference to a court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). Appellant argues that the district court lacked the power to impose a 3% per day penalty on appellant's late maintenance payments. We agree.

Kronick v. Kronick, 482 N.W.2d 533 (Minn. App. 1992), affirmed a trial court's refusal to enforce a $100 a day fine imposed by a previous court to insure a party's compliance with a divorce decree. Id. at 535-36. In doing so, this court stated:

Neither statutes nor prior appellate decisions suggest a trial court in a dissolution proceeding has inherent power to impose a private fine against one party payable to the other party.

Id. at 534. Even if the court did have the power to impose a civil penalty, we note, as did the court in Kronick, that any advantage of a private fine may be diminished because it "may require due process safeguards similar to those required in contempt proceedings." Id. at 535. Hopp v. Hopp, 279 Minn. 170, 156 N.W.2d 212 (1968), details a long list of those due process safeguards, and notes "punishment for past misconduct * * * is a field reserved to criminal proceedings" and "[t]he civil contempt power, by definition, cannot be used to punish a person for past misconduct * * *." Id. at 173, 175, 156 N.W.2d at 216, 217 (citations and emphasis omitted).

In addition to the requirement of due process safeguards, we must address the propriety of the penalty provision in the context that, although the court was dealing with two different levels of spousal maintenance, it ultimately found that appellant had overpaid his obligation.[3] We believe that even if imposition of a penalty were appropriate, it would not be appropriate in this case in view of the overpayments of maintenance.

The district court's imposition of a 3% per day penalty is reversed.

3. Overpaid maintenance

Appellant argues that Minn. Stat. § 518.611, subd. 2(c)(2) (1996), requires the court to reduce his maintenance obligation by 20% per month until the excess is repaid and, therefore, the district court erred in limiting his recovery of overpaid maintenance to $200 a month, or 5.4%. Statutory construction is clearly a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

Appellant misreads Minn. Stat. § 518.611, subd. 2(c)(2), which provides:

[I]f an overpayment amount remains after reduction of any arrearage or debt, reduce the amount * * * remitted to the obligee by an amount equal to no more than 20 percent of the current monthly * * * maintenance obligation * * *.

Id. (emphasis added). Clearly, the statute provides for a reduction of no more than 20%; it does not compel a reduction of 20%. The court has discretion to establish the rate at which appellant will recoup overpaid maintenance; the statute merely sets a maximum percentage. In this case, reduction of appellant's maintenance obligation by $200 per month complies with this statute.

Appellant also argues that he is entitled to interest on the amount he has overpaid. Appellant does not cite any statute or case law that requires such interest, and our independent research has found none. Because the statute does not expressly provide for the payment of interest on overpaid maintenance, none need be awarded.

4. Attorney fees

Appellant argues that the district court erred when it denied his request for attorney fees that were incurred in securing repayment of the home equity line of credit. An award of attorney fees lies with the discretion of the court and will not be disturbed absent an abuse of discretion. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987).

The March 23, 1994, decree provides:

[Respondent] is ordered to assume and pay the monthly mortgage payments, the home equity line of credit * * * and hold [appellant] harmless from any liability or obligation to make any payment whatsoever regarding the homestead. [Respondent] is ordered to pay to [appellant] any reasonable attorneys' fees incurred in obtaining said indemnification.

As a result of respondent's failure to make monthly payments on the home equity line of credit, appellant brought motions for hearing in July and December 1994 to compel these payments.[4]

As determined by this court in partially denying appellant's writ of mandamus, the district court's June 5, 1995, order implicitly denied appellant's request for attorney fees when it awarded $1,500 in attorney fees to respondent. This implicit denial was an abuse of discretion because it directly contravened the divorce decree. The provision in the decree directing respondent to pay appellant's reasonable attorney fees incurred in obtaining indemnity left no discretion for the district court to exercise. We reverse the implicit denial of attorney fees to appellant. In an effort to bring an end to this exceedingly protracted case, we award appellant $500 in attorney fees in connection with the July 1994 hearing.

Affirmed in part and reversed in part.

[1] Level I maintenance was to continue until respondent's remarriage or either party's death and was modifiable; Level II maintenance would terminate only upon respondent's death and was not modifiable.

[2] Minn. Stat. § 518.145, subd. 2, was added in 1988 and purports to designate when a party may be relieved from a judgment "under this chapter." See Minn. R. Civ. P. 60.02 (stating court may, under rule 60.02, relieve a party from a final judgment, "other than a marriage dissolution decree").

[3] The court found in the September 9 order modifying maintenance that appellant had overpaid his Level I maintenance by roughly $57,000, had failed to pay $9,000 in Level II maintenance, and owed a penalty of $28,350 on the late maintenance. This leaves a surplus of roughly $20,000 in overpaid maintenance.

[4] Appellant seeks attorney fees only in connection with the July 1994 hearing.