In re the Marriage of: Linda Jean Evenson, petitioner, Respondent, vs. Gerald D. Evenson, Appellant.

In re the Marriage of: Linda Jean Evenson, petitioner, Respondent, vs. Gerald D. Evenson, Appellant. A05-126, Court of Appeals Unpublished, March 28, 2006.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-126

 

In re the Marriage of:

 

Linda Jean Evenson, petitioner,

Respondent,

 

vs.

 

Gerald D. Evenson,

Appellant.

 

Filed March 28, 2006

Affirmed

Kalitowski, Judge

 

Kanabec County District Court

File No. F2-02-76

 

Rhonda Swanson, Spear & Swanson, 615 Third Avenue Southwest, Pine City, MN 55063 (for respondent)

 

Alan J. Albrecht, Albrecht & Associates, Ltd., 7066 Brooklyn Boulevard, Brooklyn Center, MN 55429 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            In this appeal from a marital-dissolution judgment, appellant Gerald D. Evenson argues that the district court abused its discretion by (1) awarding respondent Linda Jean Evenson conduct-based attorney fees; and (2) setting valuation dates that were unsupported by the evidence and not adequately explained.  We affirm. 

D E C I S I O N

I.

A district court may impose attorney fees when a litigant unreasonably contributes to the length or expense of the proceeding.  Minn. Stat. § 518.14, subd. 1 (2004).  To award conduct-based fees, the court must identify the offending conduct, the conduct must have occurred during litigation, and it must be found to have unreasonably contributed to the length or expense of the proceeding. Id.; Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001).  An award of attorney fees under Minn. Stat. § 518.14, subd. 1, "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). 

Here, the district court awarded respondent $5,000 in conduct-based attorney fees.  The court found that appellant contributed unreasonably to the length and expense of the dissolution proceedings by changing his legal representation at least four times and by refusing to complete a sale of his land, thereby triggering a lawsuit which stalled the dissolution proceedings.  Appellant argues that the district court abused its discretion by awarding respondent conduct-based attorney fees because it did not find that the reasons for the delay were appellant's fault.  We disagree.  

Respondent filed a petition to dissolve her marriage to appellant on February 4, 2002.  During the course of the dissolution proceedings, appellant hired at least four different attorneys.  And each change in representation was followed by a court order rescheduling the pretrial and trial hearings for later dates.  When appellant was represented by his first attorney, the parties agreed to mediation and scheduled an August 2002 pretrial hearing.  But when the attorney withdrew, the mediation did not go forward.  By the time appellant had reached his fourth attorney, the pretrial hearing had been rescheduled at least four times and was set for April 11, 2003. 

Subsequently, the proceedings were again continued until a pending case, involving the property to be distributed in the dissolution, was resolved.  That pending case stemmed from an October 8, 2002 purchase agreement in which the parties agreed to sell 118 acres of their land to Samuel H. Hertogs.  Respondent refused to complete the sale, and Hertogs brought suit against the parties for specific performance of the sale after the dissolution proceedings had begun.  On June 25, 2004, the district court ordered the parties to convey the 118-acre parcel to Hertogs.  The parties did not finally appear for court hearing on the dissolution matter until August 4, 2004. 

Appellant argues that the district court improperly assessed him attorney fees because the court never found that either the multiple changes in legal representation or the Hertogs matter were appellant's fault.  But a finding of bad faith is not necessary for the award of conduct-based attorney fees.  Geske, 624 N.W.2d at 818-19.  The district court identified the offending conduct.  That conduct occurred during the course of the litigation.  And the court made findings supporting its conclusion that a two-year delay in marital dissolution proceedings due to appellant's repeated change in counsel and insistence upon protracted litigation in a companion case "unreasonably contributed to the length and expense of [the] proceedings."  We conclude that the district court did not abuse its discretion by awarding respondent $5,000 in conduct-based attorney fees. 

II.

 

Minnesota law states: 

The court shall value marital assets for purposes of division between the parties as of the day of the initially scheduled prehearing settlement conference, unless a different date is agreed upon by the parties, or unless the court makes specific findings that another date of valuation is fair and equitable.

 

Minn. Stat. § 518.58, subd. 1 (2004).  The district court has broad discretion in setting the marital property valuation date.  Desrosier v. Desrosier, 551 N.W.2d 507, 510 (Minn. App. 1996).  The district court's findings of fact relative to the issue of valuation will not be set aside unless clearly erroneous.  Wopata v. Wopata, 498 N.W.2d 478, 485 (Minn. App. 1993) (citing Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975)).

            Here, the parties stipulated to a few underlying facts for the district court to consider when dividing their marital assets.  Among other items, they agreed that (1) the court would consider a professional appraisal (Sipes appraisal) and appellant's handwritten notes in determining the value of the farm's personal property; and (2) that the 87 acres of their homestead remaining after the sale to Hertogs had a current value of $185,000.  The Sipes appraisal, conducted on March 25, 2002, by the Sipes Auction Company, LLC, valued the personal property on the parties' homestead at $74,380.  Appellant's handwritten notes, however, valued the property at $17,312 as of July 31, 2004.

In its order dissolving the parties' marriage and dividing their marital property, the district court awarded appellant the farm equipment, livestock, and the remaining 87 acres of the homestead.  The court used the current date for valuing the 87 acres and used March 25, 2002, the date of the Sipes appraisal, as the valuation date for the farm equipment and livestock.  Appellant contends that the district court erred in setting both valuation dates.  We disagree.

In setting March 25, 2002, as the valuation date for the farm equipment and livestock, the court reasoned that 

the March 2002 valuation done by Sipes Auction is, with some adjustments, the most accurate and relevant summary of the value of the parties' farm equipment and livestock.  This is so because it was conducted on a date two months after the separation of the parties and reasonably close to the date of the first scheduled pretrial on August 23, 2002.

 

The court found it unreasonable to use the August 4, 2004 hearing date because "[appellant] has had exclusive use, possession and benefit of all of the items during the two and a half years between the valuation and the hearing."  The court adopted the values set out in the Sipes appraisal but deleted four items that were either gone or leased. 

            In determining the value of the remaining 87 acres of the parties' homestead, the court noted that the 87-acre parcel was "the only asset of the parties subject to appreciation."  Because the district court had found that appellant unreasonably contributed to the length of the proceedings and because it appeared to the court "that the action could otherwise have been concluded within approximately a year of its commencement," the court determined that "it is equitable to use the current value of the 87 acres in calculating an equalization between the parties."  The court added, "[t]o do otherwise would deprive [respondent] of any share of any appreciation and would reward [appellant] for his unreasonably delaying these proceedings." 

Appellant argues that the district court abused its discretion by setting the current date as the valuation date for the 87 acres because the court had already "penalized" him for delaying the proceedings by charging him conduct-based attorney fees.  But the court's language indicates that it only sought to avoid rewarding appellant's delay, not that it meant to penalize him for it.  Additionally, appellant cites no law forbidding a district court from applying the same rationale to support an award of conduct-based attorney fees as it does to support its determination of an equitable valuation date. 

Appellant also argues that the current valuation date "fails to recognize that [a]ppellant was the only person making payments on the 87 acres from January 2002 until August 2004."  But appellant's argument does not negate the fact that the relevant appreciation period would not have been so lengthy had appellant not delayed the proceedings. 

            Because the district court made specific findings explaining why its valuation dates were fair and equitable, and because those findings are not clearly erroneous on this record, we conclude that the district court did not abuse its discretion in setting the marital property valuation dates.

            Affirmed.