This opinion will be unpublished and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

A05-409

 

In re the Marriage of:

 

Gretchen Iris Snedeker,

n/k/a Gretchen Iris Anderson, petitioner,

Respondent,

 

vs.

 

Brad Lawrence Snedeker,

Appellant.

 

Filed January 17, 2006

Affirmed

Stoneburner, Judge

 

Freeborn County District Court

File No. F0011628

 

James J. Schlichting, 516 South Water Street, Suite 102, Northfield, MN 55057 (for respondent)

 

Robert A. Manson, 2233 Hamline Avenue North, Suite 609, Roseville, MN 55113 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

            Appellant challenges the district court’s award of attorney fees to respondent in this dissolution matter, arguing that neither the record nor the findings supports an award of attorney fees.  Because the parties’ dissolution decree allows the award, and because the findings justifying the award are supported by the record, we affirm.

FACTS

 

            The parties’ dissolution decree required appellant Brad Lawrence Snedeker (husband) to pay respondent Gretchen Iris Snedeker, n/k/a Gretchen Iris Anderson (wife) $16,769 (property settlement) with interest at 6% and $11,200 in attorney fees designated as “additional spousal maintenance” at 4% interest, in monthly installments.  The decree also provided for recovery of attorney fees incurred by either party as a result of the other party’s default on any provision in the decree. 

            Husband defaulted on the ordered payments.  Wife moved for judgment on the amounts owed and, under the provision in the decree, requested attorney fees incurred in obtaining the judgments.  Husband moved to deny entry of judgment, arguing that wife miscalculated the amounts owed.  Husband also requested that attorney fees be denied.  At a hearing on the motions, wife admitted that her calculations were incorrect.  The district court entered judgment for the correct amount plus attorney fees in the amount of $1,242.  The attorney-fee award was made under the provision in the decree for recovery of attorney fees from a defaulting party.  Husband appeals the award of attorney fees.

D E C I S I O N

            Attorney-fee awards in dissolution cases are generally governed by Minn. Stat.     § 518.14, subd. 1 (2004), which provides for both need-based and conduct-based awards.  Geske v. Marcolina, 624 N.W.2d 813, 816 (Minn. App. 2001).  Husband argues that there is no legal basis for the district court’s award of $1,242 in attorney fees to wife under Minn. Stat. § 518.14, that the facts do not support an award of fees, and that the district court failed to make the findings required to support a need-based or conduct-based award under the statute.  Wife argues that because the award was based on language in the decree, not on the statute, no findings are required.  “The standard of review for an appellate court examining an award of attorney fees is whether the district court abused its discretion.”  Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999).  But the “applicability of a statute is an issue of statutory interpretation, which appellate courts review de novo.”  Ramirez v. Ramirez, 630 N.W.2d 463, 465 (Minn. App. 2001).

            Husband cites Barr/Nelson, Inc. v. Tonto’s Inc., 336 N.W.2d 46, 53 (Minn. 1983), for the proposition that attorney fees may only be awarded based on contract or statute.  Husband argues that because the decree in this case was not based on an agreement of the parties, the district court was without authority to provide for attorney fees based on a party’s default on a term of the decree.  But husband has recited only the general portion of a rule to which there are exceptions.  See Busse v. Bd. of County Comm’rs, Sibley County, 308 Minn. 184, 190, 241 N.W.2d 794, 798 (1976) (noting “general rule” that attorney fees are not granted absent statutory or contractual authorization, but stating “[t]here are exceptions” to this rule). 

Husband’s argument is otherwise defective.  The dissolution decree, including the attorney-fee provision, became final when the time to appeal the decree expired.  Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (“Even though the decision of the trial court in the first order may have been wrong, if it is an appealable order it is still final after the time for appeal has expired.”); Erickson v. Erickson, 506 N.W.2d 679, 680 (Minn. App. 1993) (stating expiration of appeal period precludes party “from seeking to modify or vacate the judgment because of judicial error”).[1]  To the extent husband now challenges the fee award arguing that the attorney-fee provision on which it is based should not have been included in the dissolution decree, he is collaterally attacking that judgment.  See Elbow Lake Coop. Grain Co. v. Commodity Credit Corp., 144 F. Supp. 54, 61 (D. Minn. 1956) (defining “collateral attack” as one requesting relief other than setting aside a former judgment, but where overruling judgment is important part of or necessary to the relief requested), aff’d,251 F.2d 633 (8th Cir. 1958).  And collateral attacks are improper.  See Nussbaumer v. Fetrow, 556 N.W.2d 595, 599 (Minn. App. 1996) (stating Minnesota does not permit collateral attack of facially valid judgment and that judgment alleged to be merely erroneous or founded on nonjurisdictional defects are “not subject to attack”), review denied (Minn. Feb. 26, 1997). 

            Because husband is precluded from challenging the inclusion of the attorney-fee provision in the dissolution decree, the district court may award fees under the provision if a party defaults on decree obligations.  Therefore, wife’s fee award need not have been made under Minn. Stat. § 518.14, subd. 1.  Because the attorney-fee provision governs the fee award, we reject husband’s argument that the award is defective because it lacks the findings to support an award under Minn. Stat. § 518.14, subd. 1.  The district court found that husband “has not made any payments on the property settlement” and that he “has not timely made all of his spousal maintenance payments” as required by the decree.  The record supports these findings, the findings support an award under the decree, and we affirm the district court’s award to wife of $1,242 in attorney fees.

            Wife included a motion in her appellate brief, asserting that she is entitled to attorney fees on appeal for time spent preparing for three issues that husband included in his statement of the case on appeal but abandoned prior to briefing.  “A party seeking attorneys’ fees on appeal shall submit such a request by motion under Rule 127.”  Minn. R. Civ. App. P. 139.06, subd. 1.  “Unless another form is prescribed by these rules, an application for an order or other relief shall be made by serving and filing a written motion for the order or relief.”  Minn. R. Civ. App. P. 127.  Because wife did not properly move this court for attorney fees, her request for fees is not properly before this court.  Even if we disregarded this defect, we would find no merit in wife’s claim.

            Affirmed.