This opinion will be unpublished and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

A06-142

 

In re the Marriage of:

Kevin Brian Donovan, petitioner,

Respondent,

 

vs.

 

Anne Donovan, n/k/a Anne Marie,

Appellant.

 

Filed ­­­December 5, 2006

Reversed and remanded; motion denied

Dietzen, Judge

 

Dakota County District Court

File No. F3-92-7765

 

John T. Burns, Jr., Burns Law Office, 200 American Bank Building, 14300 Nicollet Court, Burnsville, MN 55306 (for respondent)

 

Julie K. Seymour, 108 Professional Plaza, 1601 East Highway 13, Burnsville, MN 55337 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            In this post-dissolution proceeding, appellant challenges the district court order granting respondent’s motion to reopen the judgment for the purpose of making further findings.  Because the district court failed to address the requirements of Minn. Stat. § 518.145, subd. 2 (2004), we reverse and remand.  Respondent’s motion for attorney fees is denied.

FACTS

            Appellant Anne Marie (formerly Anne Donovan) and respondent Kevin Donovan were married in 1983.  They separated in 1991 and dissolved their marriage in 1993.  During the marriage, appellant was not employed outside the home.  Respondent was employed by an advertising agency with annual income of $200,000, $550,000 and $200,000 for the years 1990 to 1992 respectively.  At the time of the dissolution, respondent was moving to Texas to start a new advertising business, which he expected would initially provide $75,000 in annual income.

            Respondent and appellant negotiated a marital termination agreement that they submitted to the court.  Appellant was granted custody of their two minor children, ages five and seven.  Respondent’s monthly child support obligation was set at $850 per month for the first three months, $1,000 per month for the next five months, and $1,200 per month thereafter, to be reduced when the older child was no longer entitled to child support.  The agreement also provided additional child support based on the amount by which respondent’s income exceeded his initial assumed annual salary of $75,000.  The agreement provided definitions, a formula for calculating the bonus, and examples.

            Spousal maintenance was set at $1,500 per month for two years.  Appellant waived her right to future modification of spousal maintenance “based upon a full and fair disclosure of [respondent]’s assets and income and his agreement to pay additional child support and to provide health and hospitalization insurance coverage for the minor children.”

            In March 2005, respondent moved to transfer physical custody of their younger child K, to K’s maternal grandparents, and appellant moved to require respondent to provide his financial information to determine the amount of back child support owed by respondent.  Subsequently, the parties stipulated that K should live with her grandparents and that respondent would provide the financial information requested.

            Based on the financial information provided, appellant calculated that the amount of back child support and interest totaled $237,850.  Respondent then moved to reopen the judgment to vacate the “bonus” child support provision or, alternatively, to clarify those provisions of the judgment.  Respondent also moved that in the event he was ordered to pay back child support, those payments should be paid to the maternal grandmother.  Appellant requested that the court deny respondent’s motions and that respondent be ordered to pay $237,850 in back support and interest.

            Following a hearing, the district court issued findings of fact, conclusions of law, and an order which provided, inter alia, “that the Judgment and Decree is reopened to allow the court to make written findings, as required by Minn. Stat. § 518.551, subd. 5(i), in light of the parties’ motions before the court,” that the parties remaining motions are “reserved,” and that either party may schedule a hearing on those motions.  This appeal follows.

            On appeal, respondent moved for attorney fees and costs, arguing that the appeal is frivolous and has no legal basis.     

D E C I S I O N

I.

Appellant argues that the district court abused its discretion in granting the motion to reopen the dissolution judgment and decree.  This court will not disturb a district court’s decision to reopen a dissolution judgment absent an abuse of discretion. Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996); Haefele v. Haefele, 621 N.W.2d 758, 761 (Minn. App. 2001), review denied (Minn. Feb. 21, 2001). 

Initially, respondent argues that the district court’s order to reopen the judgment and decree is not a final judgment, and therefore not appealable.  Under Minnesota law, an appeal may be taken from a final order, decision, or judgment affecting a substantial right made in an administrative or other special proceeding; or from an order that grants or denies modification of custody, visitation, maintenance, or child support provisions in an existing judgment or decree.  Minn. R. Civ. App. P. 103.03 (g), (h).  Additionally, “an order vacating an appealable final judgment is appealable itself.”  In re State and Regents Bldg. Asbestos Cases, 435 N.W.2d 521 (Minn. 1989).  Here, reopening the judgment has the effect of vacating the finality of the judgment and is therefore reviewable.

Minn. Stat. § 518.145, subd. 2, (2004), provides the “sole relief” and only basis for reopening a judgment and decree.  Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997).[1] The statute provides that a judgment and decree may be reopened for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under the Rules of Civil Procedure, rule 59.03;

(3) fraud, whether denominated intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party;

(4) the judgment and decree or order is void; or

(5) the judgment has been satisfied, released, or discharged, or a prior judgment and decree or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment and decree or order should have prospective application.

 

Minn. Stat. § 518.145, subd. 2.  The district court reopened the judgment “to allow the Court to make written findings, as required by Minn. Stat. § 518.551, subd. 5 (i) in light of the parties’ motions before the Court.”  While Minn. Stat. § 518.551 requires that departures from the child support guidelines be supported by written findings and that the departure is in the child’s best interests, it does not provide an independent basis to reopen the judgment.  In short, Minn. Stat. § 518.145, subd. 2, provides the sole basis for reopening a judgment.  Because Minn. Stat. § 518.145, subd. 2, does not authorize the district court to reopen a judgment to make written findings, the court abused its discretion in reopening the judgment.

Respondent nonetheless argues that the district court has the authority to reopen to resolve any ambiguity in the judgment.  We disagree.  Resolution of an ambiguity is not one of the statutory reasons for reopening a judgment, and, therefore, the district court is not authorized to reopen a judgment for that reason.           

We note that the district court retains jurisdiction to interpret or clarify a judgment.  Stieler v. Stieler, 244 Minn. 312, 318, 70 N.W.2d 127, 131 (1955).  But the power to clarify is distinct from the power to reopen.  A clarification “does not constitute an amendment of it or the findings upon which it is based” nor “does it result in a judgment differing from that originally ordered.”  Id. at 319-320, 70 N.W.2d at 132.  “On the contrary, such a clarification serves only to express more accurately the thought which, at all times, the judgment was intended to convey.”  Id. at 320, 70 N.W.2d at 132.

Here, the district court reserved respondent’s motion to clarify.  Consequently, we reverse the district court order reopening the judgment and remand for review of respondent’s motion to reopen in light of the reason set forth in Minn. Stat. § 518.145, subd. 2.  On remand, the remaining motions reserved by the district court are properly before it for resolution.  The district court may, but is not required to, conduct an evidentiary hearing.

II.

            On appeal, respondent seeks bad-faith and conduct-based attorney fees, arguing that the appeal is frivolous.  The motion fails. 

First, respondent’s motion for bad-faith fees under Minn. Stat. § 549.211 was untimely.  See Minn. Stat. § 549.211, subd. 4 (2004) (requiring that a motion for fees under the statute be served at least 21 days before filing, to give the offending party an opportunity to withdraw the challenged arguments or pleadings).  Respondent served his motion on June 7 and filed it on June 8.   

Second, conduct-based fees may be granted when a party unreasonably contributes to the length or expense of the proceeding.  Minn. Stat. § 518.14, subd. 1 (2004).  Here, respondent argues that the fees were justified because appellant’s claim was frivolous.  Having found in favor of the appellant, we disagree with the respondent that appellant’s arguments were frivolous.  Respondent’s motion for conduct-based attorney fees is denied.

            Reversed and remanded; motion denied.