This opinion will be unpublished and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

C6-99-1425

 

 

In Re the Marriage of:

Katherine Marie Jones, petitioner,

Respondent,

 

vs.

 

Walter Lloyd Jones,

Appellant.

 

 

Filed April 25, 2000

Affirmed
Foley, Judge^*

 

St. Louis County District Court

File No. F3-97-101423

 

 

Terrence M. Aronson, Carla J. Lindell, Colosimo, Patchin, Aronson, & Kearney, Ltd., 301 Chestnut Street, Virginia, MN  55792 (for respondent)

 

Richard E. Prebich, 1932 Second Avenue East, Suite 2, Hibbing, MN  55746 (for appellant)

 

Considered and decided by Randall, Presiding Judge, Amundson, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant was held in civil contempt and incarcerated for his failure to comply with the provisions of the judgment regarding the homestead exemption, surrender of certain insurance policies, and the sale of jewelry.  Appellant argues the district court improperly modified the underlying dissolution judgment on the sole basis of his contempt citation when it awarded respondent the homestead, the insurance policies, and authorized respondent to sell the jewelry.  We affirm.

FACTS

            The marriage of appellant Walter Lloyd Jones and respondent Katherine Marie Jones was dissolved by a judgment issued in August 1998.  Appellant was 73 years of age and respondent was 72 years of age, and the couple had been married for over 50 years. During their marriage, the parties acquired substantial assets in real and personal property.

By court order dated October 26, 1998, the homestead and non-homestead property, jewelry, furs, and other personal property was divided.  In part, the district court specifically ordered the parties to (1) cooperate in determining a minimum amount for the sale of their jewelry through Sotheby’s; (2) enter into listing agreements for the sale of their homestead and non-homestead property; and (3) sign the documents necessary to liquidate two insurance policies and divide the proceeds equally.  Appellant was allowed to occupy the homestead, pending its sale.

On April 16, 1999, the district court ordered appellant to show cause why he should not be held in contempt of court for (1) refusing to renew the sales agreement for the non-homestead Jammer Lake property; (2) refusing to sign the 1998 homestead exemption application; and (3) violating the provision that the insurance polices be cashed and divided equally between the parties.  In addition, respondent moved the court to deny appellant continued occupancy of the homestead because of his inability to maintain and care for the property properly.

Following a hearing on May 18, 1999, the district court found appellant in contempt and ordered him incarcerated for an indefinite period until he purged himself of the contempt by complying with the court’s orders.  The court found that appellant failed and refused to (1) sign and renew the sales agreement for the parties’ non-homestead property (the Jammer Lake property); (2) sign the homestead exemption form; (3) sign the necessary documents to cash out the insurance policies; (4) sign the necessary documents to authorize the sale of the parties’ jewelry by Sotheby’s; and (5) sign his name on the various documents because he desired to obstruct and delay the implementation of the district court's property division.  Review hearings were conducted on May 26, June 22, and June 30, 1999, and at each one, appellant refused to comply with the court's orders. He remained incarcerated. 

On July 19, 1999, the district court issued an order awarding respondent all right, title, and interest in the parties’ insurance policies, jewelry, homestead, and non-homestead property.  Respondent was ordered to cash the insurance polices and divide the proceeds equally after deducting $10,000 for herself in consideration of appellant’s unauthorized withdrawals from the parties’ joint account.  She was also allowed to deduct $2,000 from appellant’s share as an award of attorney fees based on appellant’s willful contempt, prolonging of the proceedings, and refusal to comply with the court’s previous orders. Respondent was ordered to sell the parties’ jewelry through Sotheby’s, the non-homestead Jammer Lake property, the marital homestead, and to divide the proceeds equally between the parties.  Appellant was ordered to the sign the 1998 homestead exemption.  In addition, because appellant had caused damage to the homestead property and to prevent further damage and diminution in its value, the court ordered appellant to vacate the homestead immediately.

            The court noted that it was not modifying the original property settlement, but that it was implementing and enforcing the specific provisions of the original property division. The court stated that the ownership interests in the parties’ martial property was being changed "so that the property can be sold or disposed of as originally set forth by the Court."  The court observed that appellant would receive "the same amount of proceeds as to which he was entitled under the original Judgment and Decrees."  On the filing of the order, the court ordered appellant released from custody.        

D E C I S I O N

            A property division in a dissolution action is final and cannot be revoked or modified unless the standards that justify reopening a judgment exist.  Minn. Stat. § 518.64, subd. 2(e) (Supp. 1999).  While the district court cannot modify a final property division, "it may issue orders to implement, enforce, or clarify the provisions of a decree, so long as it does not change the parties’ substantive rights."  Redmond v. Redmond, 594 N.W.2d 272, 275 (Minn. App. 1999) (citation omitted).

            Appellant insists that the district court’s July 19, 1999, order is an impermissible modification of the original final property division because it deprived him of his interest in the property, taking away a substantial property right.  Appellant’s argument is without merit.

            Appellant’s argument was rejected by this court in Hanson v. Hanson, 379 N.W.2d 230 (Minn. App. 1985).  In Hanson, the dissolution granted each party one-half of their personal property, but they could not agree on its division.  Id. at 231.  To implement and enforce its decree, the district court awarded the wife title to the property and ordered her to pay the husband one-half of the property’s value.  Id.  This court affirmed the district court, reasoning the amendment was necessary to implement the original decree.  Id. at 233.  The court held that

[i]n this case the court’s order does not affect the division of personal property but changes the form of respondent’s interest from goods to cash in order to fairly implement the decree. Neither party received more or less than each received under the original judgment and decree.  The parties had sufficient time to physically divide the personal property.  Because they were unable to do so, the court appropriately implemented the division.  The trial court did not err in this enforcement of its own property division.

 

Id. 

            There is little to distinguish Hanson from the present case.  The district court converted appellant’s interest from property to cash based on his refusal to cooperate and comply with the court’s original property division.  The court’s order simply allowed the property in question to be sold and divided according to the original judgment.  It did not modify any substantive rights of the parties, but merely assured the fair implementation of the original decree.  Neither party received any more or less than they received under the original property division.  Because the court’s order simply changes the form of appellant’s interest from property to cash and does not substantial or materially change the parties’ substantive rights, the district court’s order does not constitute a modification of the original property division, but rather an attempt to fairly implement its provisions.

            Next, respondent argues that this appeal was brought for the purposes of delay and that she is entitled to an award of attorney fees on appeal pursuant to Minn. Stat. § 518.14, subd. 1 (1998).  This court may award attorney fees on appeal if the appeal is frivolous or brought in bad faith.  Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991); see Minn. Stat. § 518.14, subd. 1 (providing court may award attorney fees against party who unreasonably contributes to length or expense of proceedings).  The decision to award attorney fees on appeal is within the discretion of this court.  Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 364 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987).

            The district court awarded conduct-based attorney fees because of appellant’s refusal to comply with its order.  Similarly, we conclude that this appeal was brought for the purposes of delay.  Throughout these proceedings and without legal justification, appellant has unnecessarily and continually sought to obstruct the implementation of the court’s property division.  The decision in Hanson is controlling and authorizes the district court to convert the form of a party’s marital property award if it is necessary to fairly implement the provisions of the original judgment and decree and does not substantially change the parties’ rights.  Because there is little or no legal merit to this appeal, we award respondent attorney fees on appeal.  Pursuant to Minn. R. Civ. App. P. 139.06, subd. 1, respondent shall serve and, within 15 days of the filing of this decision, file a motion that includes sufficient documentation to allow this court to determine the appropriate amount of fees.  Any response by appellant to the motion shall be served and filed within 10 days of service of respondent’s motion.  Minn. R. Civ. App. P. 139.06, subd. 2.

            Affirmed.