This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1577

 

In re the Marriage of:

Marvin Frank Johnson, petitioner,

Respondent,

 

vs.

 

Joyce Presley Johnson,

Appellant.

 

Filed May 24, 2005

Affirmed; motions denied

Halbrooks, Judge

 

 

Polk County District Court

File No. F1-03-652

 

Michael L. Jorgenson, Charlson & Jorgenson, P.A., 119 West 2nd Street, P.O. Box 506, Thief River Falls, MN 56701 (for respondent)

 

Joyce Presley Johnson, 1420 South Main Street, Crookston, MN 56716 (pro se appellant)

 

 

            Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the district court’s distribution of property in a marital dissolution action arguing that (1) the property division inequitably favors respondent and is unsupported by the record; (2) the award deprived appellant of her property without due process of law; and (3) the property division should be vacated because respondent’s failure to provide adequate information constituted fraud on the court.  Because the property distribution was not inequitable, was reasonably supported by the record, and did not violate due process, and because there is no evidence of fraud by respondent, we affirm.

FACTS

Appellant Joyce Presley Johnson and respondent Marvin Frank Johnson were married in September 1996.  Each party had been married before and the couple have no children in common.  Respondent filed a marital-dissolution petition on May 5, 2003.  Appellant also filed a marital-dissolution petition, and the cases were combined for trial. 

Trial was held in November 2003.  At the time of trial, respondent was 69 years old, retired, and unable to work due to a variety of medical problems.  Appellant was then 57 years old and owned an insurance agency, through which she acted as an agent for Farmers Union Insurance. 

In March 2004, the district court filed a judgment dissolving the marriage and dividing the parties’ property.  Respondent was awarded $255,066 in nonmarital assets and $31,517 in marital assets.  Appellant was awarded $35,799 in nonmarital assets and $39,981 in marital assets.  Respondent was also ordered to pay appellant $35,750.  In support of the cash payment, the district court noted that the parties had been married for six years and that appellant was 57 years old and “her health [was] uncertain.”  But the district court determined that appellant was “not entitled to any greater award because she came into the marriage with substantial pre-marital debt that was liquidated during the marriage through the use in part of marital assets and [respondent’s] pre-marital assets.” 

Respondent then moved to amend the district court’s order to eliminate the $35,750 payment to appellant.  Appellant brought a counter-motion, seeking an increase in the amount of this payment.  Respondent argued that such payment was inequitable because he would have to pay it from his nonmarital assets.[1]  Respondent further asserted that a comparison of the assets that he had at the time of the marriage with those that he had at the time of the dissolution demonstrated that he had suffered a net loss during the marriage.  By way of contrast, respondent pointed out that appellant’s net worth, which was negative prior to the marriage, was over $100,000 at the time of the divorce. 

The district court heard arguments on the motions and on July 7, 2004, filed amended findings of fact, conclusions of law, order for judgment, and judgment and decree.  The amended decision eliminated the $35,750 property-settlement payment to appellant. 

This appeal followed.  After both parties submitted briefs, appellant filed a document on December 20 entitled “How respondent’s brief clarifies perjury.”  By order, this court construed appellant’s “motion” as a reply brief.  To the extent that appellant’s “motion” sought to strike portions of respondent’s brief, its resolution was deferred to the panel. 

On April 8, 2005, only five days before the consideration of the case by this court, and well after the time to file additional briefs had run, appellant submitted a reply brief along with a motion to accept it.  Respondent opposes this motion, noting that appellant’s brief is untimely, that any extension should have been sought before the filing deadline pursuant to Minn. R. Civ. App. P. 131.02, that there is no supporting affidavit establishing good cause, and that the court has already treated the earlier submission as the reply brief, so a second “reply brief” should not be accepted. 

D E C I S I O N

We begin by considering appellant’s motion to accept her late reply brief.  Appellant’s brief is untimely, and she has failed to establish good cause for its acceptance.  See Heinsch v. Lot 27, 399 N.W.2d 107, 109 (Minn. App. 1997) (stating that pro se litigants are held to same standard as attorneys and that unfamiliarity with procedural rules is not good cause to excuse untimely action).  In addition, all of the relevant documents submitted by appellant in the appendix to her brief are already part of the record.  Accordingly, we deny appellant’s motion to accept her late brief.

We next consider appellant’s motion to strike portions of respondent’s brief.  Although appellant’s “motion” is not in the proper form, this court construed it as a reply brief and, to the extent that appellant seeks to strike parts of respondent’s brief, deferred the question to this panel.  “The papers filed in the [district] court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”  Minn. R. Civ. App. P. 110.01.  In general, we may not consider matters not produced and received in evidence by the district court.  Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977).  “The court will strike documents included in a party’s brief that are not part of the appellate record.”  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993).  References in a party’s brief to stricken extra-record material are also stricken.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 543-44 n.7 (Minn. 2001). 

Here, appellant does not argue that any of the documents referred to in respondent’s brief were not before the district court.  Rather, her objection is based on her characterization of several of respondent’s submissions to the district court as fraudulent.  Because the documents were part of the record and because they are central to the substantive arguments raised by appellant, they are properly before this court.  Accordingly, appellant’s motion to strike is denied.

I.          Property Division

Appellant argues that the district court erred by classifying certain assets as respondent’s nonmarital property and by ordering an inequitable division of the parties’ property.  The district court has broad discretion in the division of property.  Bollenbach v. Bollenbach, 285 Minn. 418, 426, 175 N.W.2d 148, 154 (1970).  Whether property is marital or nonmarital is a question of law subject to de novo review.  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).  But we review the district court’s findings of fact underlying this determination for clear error.  Id. A district court abuses its discretion regarding a property division if its findings of fact are “against logic and the facts on [the] record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  Even if we would have decided differently, this court will affirm the district court’s division of property if it has an acceptable basis in fact and principle.  Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984). 

The district court is to make a “just and equitable division of the marital property of the parties.”  Minn. Stat. § 518.58, subd. 1 (2004).  But this division of the marital property need not be equal.  Ruzic v. Ruzic, 281 N.W.2d 502, 505 (Minn. 1979).  In addition, the district court may award “up to one-half of the [nonmarital] property” of one spouse to the other if it finds that the other property awarded is “so inadequate as to work an unfair hardship” on that spouse.  Minn. Stat. § 515.58, subd. 2 (2004).

All property acquired during marriage is presumed to be marital property.  Minn. Stat. § 518.54, subd. 5 (2004).  Nonmarital property is property acquired before the marriage, property that is acquired in exchange for property acquired before the marriage, or the increase in the value of property that was acquired before the marriage.  Id.  The supreme court has held that

the increase in the value of nonmarital property attributable to the efforts of one or both spouses during their marriage, like the increase resulting from the application of marital funds, is marital property.  Conversely, an increase in the value of nonmarital property attributable to inflation or to market forces or conditions, retains its nonmarital character.

 

Nardini v. Nardini, 414 N.W.2d 184, 192 (Minn. 1987) (emphasis added).

“A party seeking to establish the nonmarital character of an asset must do so by a preponderance of the evidence.  In order to maintain its nonmarital character, nonmarital property must be kept separate from marital property or, if commingled, must be readily traceable.”  Wopata v. Wopata, 498 N.W.2d 478, 484 (Minn. App. 1993) (citation omitted); see also Carrick v. Carrick, 560 N.W.2d 407, 413 (Minn. App. 1997) (noting that standard required is not “strict tracing” but a preponderance of the evidence).  Here, appellant contends that the extensive commingling of respondent’s formerly nonmarital property had converted it to marital property.

The district court concluded that respondent had presented evidence sufficient to trace his nonmarital assets.  After careful review of the financial records, the district court found:

[Respondent] owned substantial assets prior to the parties’ marriage, the proceeds of which were deposited into the parties’ joint checking account and used to acquire the homestead residence, fund most of the improvements to the property, and acquire numerous items of machinery. . . . The total proceeds from the disposition of those assets that were deposited into the parties’ joint checking account were $227,513.18.[[2]] 

 

In making this finding, the court specifically traced those assets contested by appellant.  The district court found that these assets were owned by respondent prior to the marriage, had been sold, and the proceeds deposited into the parties’ joint checking account.  The district court further concluded that the source of the money used to purchase the homestead residence and to make improvements to it “clearly had to be [respondent’s] pre-marital funds that he deposited into the parties’ joint checking account because there were no other funds available.  That is also true for most of the other improvements that were made to the property.”  (Emphasis added).  The district court also found that the increased value of this property was “attribut[able] partly to the other improvements made during the marriage [but paid for by respondent’s premarital funds] and partly to six years of appreciation.”   

The district court’s finding is neither against logic nor the facts on the record.  Rutten, 347 N.W.2d at 50.  Thus, the district court did not clearly err in its determination.  Because respondent’s nonmarital interests in the commingled assets are traceable, they retain their nonmarital character.  Carrick, 560 N.W.2d at 413; Wopata, 498 N.W.2d at 484.  Whether we would have decided differently is immaterial because the district court’s division had an acceptable basis in fact and principle.  Servin, 345 N.W.2d at 758.  Accordingly, the district court did not err in awarding such assets to respondent.

II.        Due Process

Appellant also contends that she was deprived of her property without due process of law.  We review procedural due-process claims de novo.  Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn. App. 1999), review denied (Minn. July 28, 1999). 

The guarantees of due process are the same under both the federal and state constitutions.  Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn. 1988).  Due-process protections “include reasonable notice, a timely opportunity for a hearing, the right to be represented by counsel, an opportunity to present evidence and argument, the right to an impartial decisionmaker, and the right to a reasonable decision based solely on the record.”  Humenansky v. Minn. Bd. of Med. Exam’rs, 525 N.W.2d 559, 565 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995).  “At a minimum the due process clause requires that deprivation of property be preceded by notice and an opportunity for a hearing appropriate to the case.”  Contos v. Herbst, 278 N.W.2d 732, 742 (Minn. 1979); see alsoBaker v. Baker, 481 N.W.2d 871, 873 (Minn. App. 1992), rev’d on other grounds, 494 N.W.2d 282 (Minn. 1992) (noting that the “fundamental aspects” of due process are notice and hearing). 

Here, appellant does not contend that she did not receive notice or that she was denied a hearing.  Neither does she argue that she was unable to present evidence, that the decisionmaker was not impartial, or that the district court’s decision was not based on the record.  Appellant expresses dissatisfaction with the district court’s division of property, but presents no evidence that she was denied a full and fair determination of her claims.  On this record, appellant has not demonstrated that her due-process rights were violated.

III.       Fraud on the Court

Appellant contends that the district court’s judgment must be vacated because respondent has committed “fraud on the court.”  We begin by noting that in this case such a strenuous standard is not required.  This court has previously held that “the failure of a party to a dissolution to make a full and complete disclosure constitutes sufficient reason to reopen the dissolution judgment for fraud, without any showing of fraud on the court.”  Doering v. Doering, 629 N.W.2d 124, 129 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001); see also Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983) (stating that the failure of the parties to a dissolution to make full and accurate disclosure constitutes fraud sufficient to set aside the judgment).

            Appellant argues that respondent committed fraud because some of the exhibits he submitted “were handwritten or typed—with errors and no documentation to corroborate data.”  But appellant’s statements are conclusory and do not provide evidence of fraud by respondent.  We recognize that she disagrees with respondent’s characterization of certain assets, but this is not evidence of fraud by respondent.  Moreover, a review of the transcripts indicates that appellant did not contend, either at trial or the motion hearing, that respondent’s submissions were fraudulent.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (courts will generally not consider matters not argued and considered by the district court).  Appellant has not demonstrated fraud sufficient to vacate the district court’s judgment.

            Affirmed; motions denied.