In Re the Marriage of: Diane Marie Nelson, petitioner, Respondent, vs. Kevin John Nelson, Appellant. C3-99-1527, Court of Appeals Unpublished, April 4, 2000.

This opinion will be unpublished and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

C3-99-1527

In Re the Marriage of:

Diane Marie Nelson, petitioner,

Respondent,

vs.

Kevin John Nelson,

Appellant.

Filed April 4, 2000

Affirmed

Shumaker, Judge

Washington County District Court

File No. F5982003

Jon H. Larson, 6015 Cahill Avenue East, Suite 400, Inver Grove Heights, MN 55076 (for respondent)

John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

SHUMAKER, Judge

Appellant Kevin John Nelson contends that the district court abused its discretion by impermissibly modifying a final property award in a marriage dissolution and by ordering the sale of real estate without following the required statutory procedures. We affirm.

FACTS

Appellant stopped providing financial support for his three minor children when he and respondent separated on October 5, 1997. He did not comply with the temporary order of June 17, 1998, requiring him to pay child support. He failed to pay the child support, arrearages, and medical insurance costs for the children required by the final dissolution decree entered April 20, 1999. As of June 10, 1999, appellant owed $4,050 in child support arrearages.

On July 12, 1999, respondent moved to compel the sale of certain Cass County real estate appellant had been awarded in the dissolution. The property was encumbered by respondent’s $8,000 lien, which was payable five years after entry of the decree.

After a hearing, the district court found that appellant’s “failure to pay any support in the past” made it unlikely “that he will voluntarily pay support in the future.” The court then ordered the sale of the real estate, and the application of the proceeds to tax obligations, real estate sale costs, respondent’s lien, and child support arrearages. The court ordered any remaining amounts sequestered for payment of future child support obligations.

On appeal, appellant contends that the court abused its discretion by improperly modifying a final property disposition and by failing to follow the correct statutory proceedings for the forced sale of the real estate.

D E C I S I O N

The district court has discretionary power to enforce its own decrees. Jensen v. Jensen, 414 N.W.2d 742, 746 (Minn. App. 1987), review denied (Jan. 15, 1988). Appellant argues that the district court abused its discretion by improperly modifying a final property division, and then erred by failing to apply the proper statutory procedures to the sale of the property.

Once a final decree has been entered and the time for appeal has expired, a court generally has no authority to modify a property division. Minn. Stat. § 518.64, subd 2(d) (Supp. 1999); Arzt v. Arzt, 361 N.W.2d 135, 136-37 (Minn. App. 1985). But the court

shall make a further order which is just and proper concerning the maintenance of the minor children * * * and for the maintenance of any child of the parties * * * as support money. The court may make any child support order a lien or charge upon the property of the obligor, either at the time of the entry of the judgment or by subsequent order upon proper application.

Minn. Stat. § 518.57, subd. 1 (Supp. 1999); see also Minn. Stat. § 518.64, subd. 2(d) (the court “may impose a lien or charge on the divided property” at any time for payment of support money).

Appellant apparently does not dispute the court’s authority to impose a lien or charge for the payment of child support even on property that has been divided and awarded in a final decree. Nor does appellant dispute the court’s authority to enforce such a lien or charge. Rather, appellant contends that the court awarded the Cass County real estate to appellant in the final decree and then took it away from him by post-decree order. This, he claims, was an impermissible modification of a property division. We disagree. Because the modification statute expressly permits the imposition of a post-decree lien or charge on divided property, it necessarily follows that, to the extent the lien is related to child support, its modification on enforcement is not an impermissible property modification. Id. It would lead to an absurd result if the court could impose a lien or charge on divided property but could not enforce the lien or charge because enforcement would in some way alter the status of the property and thereby become a prohibited modification.

Appellant next contends that the district court abused its discretion by not following the judgment and execution provisions in Minn. Stat. § 550.01-.42 (1998). He argues that by not applying these statutes, the court improperly modified the real estate award. We disagree.

We note that the state has a “strong interest in insuring that parents provide for their children.” Jensen, 414 N.W.2d at 746. Furthermore, “Minn. Stat. § 518.64, subd. 2 (1986), expressly grants the court equitable powers” over the parties’ property, including post-decree property. Id. In exercising its equitable power to ensure that parents will support their children, the court is not limited to the remedy provided in Minn. Stat. § 550.01-.42. See, e.g., Jensen, 414 N.W.2d at 746 (holding that the “court’s equitable powers override the application of the homestead exception.”). In Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991), the district court awarded real estate to one party subject to a lien in favor of the other in a marriage dissolution. The lien was to secure property division payments. The decree provided no mechanism for enforcement of the lien. When the property owner defaulted, the court ordered the immediate sale of the property on the open market. The owner contended that the lien could be enforced only through statutory foreclosure. On appeal, we rejected that contention, saying:

We acknowledge respondent could have foreclosed her lien upon the property * * * . We point out, however, foreclosure is not the only means available to the trial court to enforce a lien provision in a dissolution decree. The paramount concern is whether the parties’ substantive rights are changed * * * . Thus the trial court simply issued an appropriate order to implement and enforce the dissolution decree and did not improperly modify the terms of the property award.

Potter, 471 N.W.2d at 114. See also Sullivan v. Sullivan, 393 N.W.2d 521, 523 (Minn. App. 1986) (trial court’s order that property awarded husband must be sold and proceeds held to pay child support not a property modification but simply an effectuation of the decree). The district court did not abuse its discretion in ordering the sale of appellant’s real estate.

Affirmed.