In the Matter of: Pamela Jo Hendrickson, n/k/a Pamela Jo Cyrs, petitioner, Respondent, vs. Keith Duncan Hendrickson, Appellant. CX-97-2234, Court of Appeals Unpublished, June 9, 1998.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1996)

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-97-2234

In the Matter of:

Pamela Jo Hendrickson, n/k/a

Pamela Jo Cyrs, petitioner,

Respondent,

vs.

Keith Duncan Hendrickson,

Appellant.

Filed June 9, 1998

Affirmed as modified.

Lansing, Judge

Lake County District Court

File No. F495600016

Timothy N. Downs, MacDonald & Downs, 200 Alworth Building, 306 West Superior Street, Duluth, MN 55802-1973 (for respondent)

Matthew K. Begeske, 506 Board of Trade Building, Duluth, MN 55802 (for appellant)

Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Schultz, Judge.*

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

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

LANSING, Judge

On appeal from a postdecree judgment in a dissolution action, Keith Hendrickson contends that the district court abused its discretion in denying his contempt motion for denial of visitation, ordering him to pay attorneys' fees on the motion, prohibiting further motions until the fees are paid, and converting a lien to judgment. We affirm as modified and grant attorneys' fees on appeal.

FACTS

In late July 1997, while awaiting this court's decision in a second appeal relating to his dissolution decree, Keith Hendrickson moved the district court to find his ex-wife, Pamela Cyrs, in contempt of a court-ordered visitation schedule for their minor child. In response, Cyrs asked the court for a judgment of $4,500 for Hendrickson's failure to comply with the terms of their property settlement and for attorneys' fees.

The district court denied Hendrickson's contempt motion, finding he failed to support his denial-of-visitation claim with sufficient facts and that he had received his full visitation rights within one month of his claim. Because Hendrickson failed to pay Cyrs's share of the marital property distribution, the court awarded Cyrs a judgment of $4,500 against Hendrickson and $750 in attorneys' fees. The court also prohibited Hendrickson from bringing further motions until he paid the attorneys' fees. Hendrickson appeals (1) the denial of the contempt motion; (2) the award of fees and the accompanying condition prohibiting any further motions until the attorneys' fees are paid; and (3) converting Cyrs' lien against the former homestead to a judgment.

D E C I S I O N

Whether to invoke the contempt power is within the district court's discretion and is subject to reversal only if that discretion is abused. Mower County Human Services v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996) (citing Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986)). Hendrickson's argument that the district court abused its discretion in denying the contempt motion is meritless. Hendrickson failed to provide any supporting evidence for the motion. The only basis is a bare affidavit from his attorney stating that Cyrs failed to produce their minor child for visitation on two weekends in July. Cyrs's affidavit sets forth the underlying facts demonstrating that the visitation did not occur because she was attempting to accommodate Hendrickson's repeated requests to change the visitation schedule. Based on the evidence in the record, the district court did not abuse its discretion in denying Hendrickson's contempt motion.

After concluding that Hendrickson's motion lacked factual support, the district court ordered Hendrickson to pay Cyrs $750 for legal fees on the motion. Given that Hendrickson's net income is significantly higher than Cyrs's net income and this action is the third appeal resulting from the parties' 1996 dissolution, the district court did not abuse its discretion in awarding attorneys' fees. See Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987) (award of attorneys' fees based on Minn. Stat. § 518.14 rests almost entirely within the district court's discretion and will not be upset absent abuse of discretion).

We also reject Hendrickson's assertion that the amount of $750 is grossly excessive for legal defense of the motion. After incurring more than $10,000 in legal fees for the dissolution, Cyrs requested $1,000 in legal fees on the contempt motion. The district court determined the amount of the award based on its observation of the services provided. It was not an abuse of discretion to award $750 in attorneys' fees. See Hanson v. Hanson, 378 N.W.2d 28, 31 (Minn. App. 1985) (an award of attorneys' fees must be based upon the court's observation of the services performed or proof of their value).

The district court order prohibited Hendrickson from bringing further motions until the payment of $750 attorneys' fees. We review this condition under an abuse of discretion standard. In re Burns, 542 N.W.2d, 389, 390 (Minn. 1996). Because the district court's absolute prohibition may preclude legitimate motions relating to the welfare of the parties' minor child, we conclude that the condition is too onerous. Based on Burns, we modify the district court's order to require Hendrickson to show cause in the district court before filing any subsequent motions pertaining to this dissolution.

III

Hendrickson's final argument is that the district court exceeded its authority by converting Cyrs's interest-free lien on their former homestead into an interest-bearing money judgment. This argument is without merit. When a party does not comply with the terms of the judgment and decree or order, the court may enter judgment against that party. 14 Martin L. Swaden & Linda A. Olup, Minnesota Practice § 9.47 (1992). Furthermore, once a judgment is entered, interest accrues on the unpaid balance at the annual rate determined by the state court administrator. Minn. Stat. § 549.09, subd. 2 (1996).

Hendrickson correctly contends that the district court erred in determining the lien payment was due within 60 days. The actual provision states the lien "shall be due and payable within six months after the entry of the Judgment and Decree herein" (emphasis added). We interpret this language to mean that the $4,500 payment was due six months from the date this court affirmed the property settlement in an unpublished opinion filed December 31, 1996. But the district court's differing calculation has no significance because interest charges did not begin to accrue until the date the judgment was entered.

We reject Hendrickson's argument that the district court impermissibly altered the property settlement by reducing Cyrs's lien to a money judgment, which could result in foreclosure. The district court merely implemented the terms of the original property settlement by awarding Cyrs a judgment of $4,500. See Hanson v. Hanson, 379 N.W.2d 230, 233 (Minn. App. 1985) (order changing goods to cash to fairly implement dissolution decree without affecting the division of the property does not modify property settlement).

Under Minn. Stat. § 518.14, this court has the authority to award attorneys' fees when a party contributes unreasonably to the length or expense of a proceeding. Minn. Stat. § 518.14 (1996). This appeal is the third appeal relating to the parties' January 1996 divorce. Hendrickson's history of filing motions and appeals has placed substantial financial burdens on his former wife. See Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 692 (Minn. App. 1989) (awarding attorneys' fees based on former husband's history of filing motions which put ex-wife even further in debt and intimidated her from pursuing legal rights). Accordingly, we award Cyrs the attorneys' fees incurred in this appeal. Counsel for Cyrs shall serve and file supporting documentation on fees within ten days after filing of this opinion. Hendrickson's response, if any, shall be served and filed within five days after service of the documentation.

Affirmed as modified.