This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-975

 

In re the Marriage of:

Vasudha Satalkar Bhat, petitioner,

Respondent,

 

vs.

 

Milind Y. Bhat,

Appellant.

 

Filed March 11, 2003

Affirmed
Klaphake, Judge

 

Ramsey County District Court

File No. F100265

 

Carla J. Butz, Butz Law Firm, 3300 Edinborough Way, Suite 400, Edina, MN  55435 (for respondent)

 

Scott R. Martin, 4856 Banning Avenue, White Bear Lake, MN  55110 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In this marital dissolution action, appellant Milind Bhat challenges the district court’s imposition of discovery sanctions, which prevented him from introducing evidence that certain property was nonmarital.  Appellant also challenges the district court’s findings regarding temporary maintenance and its order requiring him to pay a portion of respondent’s attorney fees.  By notice of review, respondent Vasudha Satalkar Bhat claims that the district court abused its discretion by failing to award her permanent maintenance.

            Because there is a record basis for its decision, which is not against logic or the facts, we conclude that the district court did not abuse its discretion in imposing discovery sanctions and ordering attorney fees or in refusing to award permanent maintenance.  Further, the district court’s findings regarding temporary maintenance are supported by the record and are not clearly erroneous.  We therefore affirm.

D E C I S I O N

            1.         Discovery Sanctions

            The district court’s discovery orders are reviewed under an abuse of discretion standard.  Kellar v. VonHoltum, 568 N.W.2d 186, 190 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997).  The district court may sanction a party who fails to respond to a discovery request after the court has entered an order to enforce discovery.  Minn. R. Civ. P. 37.01, .02.  Sanctions can include an order refusing to permit the uncooperative party to introduce evidence of designated claims or defenses.  Minn. R. Civ. P. 37.02(b). 

            Such sanctions are considered extreme, and a district court will normally seek to compel discovery by using alternative measures.  See Sudheimer v. Sudheimer, 372 N.W.2d 792, 795 (Minn. App. 1985).  A reviewing court, however, will regard a district court’s clear warning that the uncooperative party will be sanctioned as a significant factor in deciding whether the sanction was appropriate.  Id.

            The district court issued four orders compelling discovery on June 27 and December 5, 2000, and July 2 and August 16, 2001.  At issue in each of these orders was appellant’s failure to fully answer discovery requests regarding his nonmarital property claims.  Appellant was found in contempt on December 5, 2000, and July 2, 2001, for failing to comply with discovery orders.  On July 2, the court warned appellant that failure to fully comply with discovery would result in sanctions.  On that occasion, the court stated:

As and for sanctions for [appellant’s] continued failure to provide information and documents to substantiate his claims of non-marital property, if the requested information is not provided within five (5) days of the date of this Order, [appellant] is hereby prohibited from making any non-marital claims with respect to the assets held either individually or jointly.  Further, [appellant] will be prohibited from introducing into evidence in this matter any evidence or documents related to any non-marital claims.  This sanction is imposed pursuant to Rule 37.02 of the Minnesota Rules of Court.

 

In this order, the district court specifically required production of all documents relating to any financial transaction from the date of marriage to the time of trial, copies of the 1999 and 2000 income tax returns with attachments, copies of wage records from January 1, 2001 to the date of trial, and complete answers to discovery requests about activity in appellant’s Wells Fargo account.  On August 13, 2001, the district court, after receiving affidavits of noncompliance, entered an order prohibiting appellant from introducing evidence or making any claims regarding the nonmarital nature of property held by the parties.  Avoiding the mistake of Sudheimer, where the district court failed to set a definite deadline for response or to warn appellant that sanctions would result, the district court here gave specific warnings of the type of sanction contemplated and instruction as to what material had to be provided.  See Sudheimer, 372 N.W.2d at 795. 

            The record shows that appellant’s answers to interrogatories were incomplete and lacking in detail, and that he was uncooperative and evasive in his deposition.  Although respondent was given authorizations to gain access to financial records, she was only partially successful in obtaining the requested information.  The party asserting the nonmarital status of property has the burden of proving this by a preponderance of the evidence.  Wopata v. Wopata, 498 N.W.2d 478, 484 (Minn. App. 1993).[1]  The history of financial accounts is relevant to determining whether accrual in the account is nonmarital, from passive market growth, or marital, from active moves made during the marriage that increase the value of an asset or produce income.  See Nardini v. Nardini, 414 N.W.2d 184, 190 (Minn. 1987).  These considerations underscore the importance of the discovery process.

            Appellant argues that because he gained no advantage from failing to cooperate with discovery, the use of a rule 37 sanction is inappropriate under Gebhard v. Niedzwiecki, 265 Minn. 471, 122 N.W.2d 110 (1963).  Appellant’s reliance on Gebhard is misplaced.  Gebhard states that where there is “an honest mistake and the harm can be undone,” a remedy other than a sanction should be used.  Id. at 479, 122 N.W.2d at 115.  Here, appellant may have gained no advantage, or indeed, may have worsened his position, but his behavior cannot be said to be an honest mistake.

            The district court issued multiple orders, including contempt orders, with specific instructions and clear warnings about the possibility of sanctions.  Accordingly, imposition of rule 37 sanctions was not an abuse of discretion.

            2.         Temporary Maintenance

            This court reviews findings of fact under a clearly erroneous standard.  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).  “That the record might support findings other than those made by the trial court does not show that the court’s findings are defective.”  Vangness v. Vangness, 607 N.W.2d 468, 474 (Minn. App. 2000). 

[T]he party challenging the findings must show that despite viewing that evidence in the light most favorable to the trial court’s findings * * * the record still requires the definite and firm conviction that a mistake was made.

 

Id.  The district court’s award of maintenance is reviewed under an abuse of discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997). 

            In the most basic sense, the district court’s findings here are not erroneous.  The district court acknowledged that the total temporary maintenance ordered was $28,000 and that the total paid was $31,000, and recites a list of the factors it considered that led to its determination that the maintenance paid was reasonable.  Although this list is conclusory, other findings recite the relative incomes, education, training, and expenses of the parties.  The district court also made findings regarding respondent’s physical and cultural limitations, which tend to make her employment prospects more difficult. 

Appellant does not challenge these findings, but argues that the district court abused its discretion by affirming the actual payment of temporary maintenance.  The district court’s decision is not without basis in the record, nor is it against logic and facts.  See Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  Thus, the district court did not abuse its discretion by affirming the temporary maintenance actually paid, rather than the ordered amount.

3.         Attorney Fees

“An award of attorney fees rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).  Need-based or conduct-based attorney fees may be awarded in a dissolution action pursuant to Minn. Stat. § 518.14, subd. 1 (2002). 

Conduct-based fees may be awarded regardless of a party’s need.  Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001).  The district court may, in its discretion, order payment of such fees if it finds that a party has “unreasonably contribute[d] to the length or expense of the proceeding.”  Minn. Stat. § 518.14, subd. 1.  The district court must identify particular conduct occurring during the litigation that contributed to the length or expense of the proceeding; bad faith is not necessary.  Geske, 624 N.W.2d at 819.

Here, the district court found that

an award of conduct-based fees is appropriate in this case in light of the fact that [appellant’s] conduct unreasonably contributed to the length and expense of this proceeding.  [Appellant] has taken virtually every tactic to delay this proceeding and has failed and refused to abide by the Court’s Orders.  [Respondent] has had to bring numerous motions to compel discovery, numerous motions for contempt of court and a motion to freeze the parties’ accounts.  In addition, because of [appellant’s] refusal to provide information regarding his employment, wages and financial accounts, [respondent] was forced to expend substantial amounts of time and money subpoenaing records which [appellant] could have obtained for free.

 

In light of these findings, amply supported by the record, the district court did not abuse its discretion by awarding conduct-based attorney fees.

            4.         Permanent Maintenance

            By notice of review, respondent argues that the district court abused its discretion by failing to award her permanent maintenance.  The district court has broad discretion in matters involving maintenance, and in order for the reviewing court to find an abuse of discretion, “there must be a clearly erroneous conclusion that is against logic and the facts on record.”  Dobrin, 569 N.W.2d at 202 (citing Rutten, 347 N.W.2d at 50). 

The district court must base a maintenance award on the statutory factors found at Minn. Stat. § 518.552, subd. 2 (2002).  These factors include (1) the relative financial resources of the parties, including marital property received; (2) a party’s need for education or retraining over what period of time; (3) the standard of living during the marriage; (4) the duration of the marriage and any absence from employment during the marriage; (5) the loss of employment opportunities; and (6) the age and physical and emotional health of the parties.  Id.  Maintenance findings will not be set aside unless clearly erroneous.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 409 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000).

            The district court found that respondent has health, emotional, and cultural limitations that impair her ability to find work, that her job prospects were poor and appellant’s were good, that the parties enjoyed a high standard of living, and that respondent’s expenses exceeded her income.  But the court also made findings to support its decision to deny an award of maintenance.  Specifically, it found that respondent (1) was employed before the marriage and worked continuously throughout the marriage; (2) holds advanced degrees in two subject areas from Indian universities that are essentially equivalent to American degrees; (3) is able, despite her limitations, to find jobs that she is eligible to hold; and (4) is significantly underemployed.  Respondent did not lose job opportunities because of the marriage or because she acted solely as a homemaker, and has worked continuously within her degree areas.  Further, the marriage lasted for only five years, a relatively short duration, respondent did not forego opportunities in order to support appellant or raise children, and she received a relatively generous marital property settlement.

            The record supports these findings as not clearly erroneous and supports the district court’s decision denying an award of permanent maintenance.  The district court has not abused its discretion in refusing to award permanent maintenance.

            Affirmed.