In re the Marriage of: Robyn Bartz Woolley, petitioner, Respondent, vs. Robert James Woolley, Appellant.

In re the Marriage of: Robyn Bartz Woolley, petitioner, Respondent, vs. Robert James Woolley, Appellant. A06-10, Court of Appeals Unpublished, November 14, 2006.

This opinion will be unpublished and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

A06-10

 

 

In re the Marriage of:

 

Robyn Bartz Woolley, petitioner,

Respondent,

 

vs.

 

Robert James Woolley,

Appellant.

 

 

Filed ­­­November 14, 2006

Affirmed

Dietzen, Judge

 

Ramsey County District Court

File No. F1-05-396

 

Patricia A. O'Gorman, Patricia A. O'Gorman, P.A., 8750 90th Street South, Suite 207, Cottage Grove, MN 55016 (for respondent)

 

Robert J. Woolley, 2156 Winthrop Court, St. Paul, MN 55119 (pro se appellant)

 

            Considered and decided by Ross, Presiding Judge; Willis, 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 dissolution proceeding, appellant husband challenges the district court order of default and resulting judgment and decree, arguing that the district court erred (1) in failing to hear his motion for a temporary order regarding attorney fees, (2) by finding him in default, and (3) by not equitably dividing the property.  Because the district court properly applied the law and did not abuse its discretion, we affirm.

FACTS

Appellant Robert Woolley (husband) and respondent Robyn Woolley (wife) were married on January 8, 1993, and in February 2005, wife petitioned to dissolve the marriage.  Husband's attorney later withdrew, and husband continued pro se.  The district court issued a scheduling order that, inter alia, set the prehearing conference for August 23, 2005, ordered deadlines for the completion of discovery, and the last date for hearing motions.   

In June 2005, wife served husband with requests for discovery, but husband refused to answer, arguing that he did not have the benefit of legal counsel.  Husband then submitted a motion for temporary relief under Minn. Stat. § 518.131, arguing that he was unable to obtain counsel because his monetary assets were under the control of wife.  Because husband was not able to obtain a hearing date more than 30 days before the prehearing conference, he requested that the district court waive the requirement and  schedule a hearing on his motion.  When the district court denied his request, husband sought a writ of mandamus from the court of appeals, which was denied, and then petitioned the supreme court for further review, which was also denied. 

Following the pretrial conference, the district court scheduled an evidentiary hearing in April 2006, ordered husband to serve and file a prehearing statement, and ordered both parties to respond to all outstanding discovery no later than September 22, 2005.  The order stated, "[f]ailure to fully comply with discovery may result in sanctions under rule 37.02 (b), Minnesota Rules of Civil Procedure."

Although wife responded to husband's discovery, husband failed to submit a pretrial statement or respond to wife's discovery.  When husband failed to complete discovery, wife scheduled a default hearing and a notice of application for a final hearing pursuant to rule 306.01(b) of the Minn. R. Gen. Pract. 306.01(b).  At the default hearing, both husband and wife were present.  Following arguments, the district court concluded that husband was in default for his failure to respond fully to the discovery requests and failing to file a prehearing statement. 

The district court found that wife was employed as a nurse with a net monthly income of $3,299 and monthly expenses of $3,673; and although husband was a medical doctor, his license was revoked in 2005.[1] It also found that husband had withdrawn $141,543 from his retirement plans between 2002 and 2004, had self-employment income from a business of $5,236 in 2003 and $8,317 in 2004, and claimed credit card debt of $105,000.  The court concluded that since husband failed to answer discovery, it was unknown whether he has additional income or assets other than a car, the parties' homestead, and various items of personal property.  The court rejected husband's argument that he was unable to answer discovery or file a pretrial statement, concluding that "[r]espondent is capable of answering discovery and completing a prehearing statement.  He simply refuses to do so."

The district court awarded the homestead to wife, which was encumbered by a mortgage but has a net equity of approximately $160,000.  The court ordered wife to maintain health and medical insurance available through her employer for the benefit of husband.  Husband was awarded his car, valued at $2,550, and wife was awarded her car, valued at $13,775.

D E C I S I O N

I.

 

Husband claims that he has the right to an attorney guaranteed by Minn. Stat. § 518.131, subd. (1)(d) (2004), which vests the district court with the discretion to grant a temporary order for reasonable attorneys fees.  Here, the district court refused to consider husband's motion because it was not scheduled for hearing within the time permitted by the scheduling order.  Husband argues that the district court abused its discretion by not considering his motion.

In general, procedural and evidentiary rulings are within the district court's discretion and reviewed for an abuse of that discretion.  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).  And broad discretion must be left to the district court to determine the procedural calendar of a case.  Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982).

Minn. R. Gen. Pract. 303.03(b) allows the district court to cancel hearings, issue orders without hearings, or take other appropriate action when motions are untimely.  It states that "[i]n the event an initial moving party fails to timely serve and file documents required in this rule, the hearing may be cancelled by the court."  Id.  Here, the scheduling order required that any motion be heard on or before July 23.  Husband contends that the earliest date he could secure for a temporary relief hearing was August 1, 2005.  But husband did not explain why he waited to file his motion for temporary relief.  See Minn. R. Gen. Pract. 303.03(b) ("The court, in its discretion, may refuse to permit oral argument by the party not filing the required documents, may consider the matter unopposed, may allow reasonable attorney's fees, or may take other appropriate action.").  On this record, husband has not shown a good faith basis for his delay in bringing his motion. 

            But even if husband's motion was considered, Minn. Stat. § 518.131, subd. 1(d), does not require the district court to grant the relief requested.  The statute provides:

In a proceeding brought for custody, dissolution, or legal separation, or for disposition of property, maintenance, or child support following the dissolution of a marriage, either party may, by motion, request from the court and the court may grant a temporary order pending the final disposition of the proceeding to or for…(d) [t]emporary costs and reasonable attorney fees.

 

(Emphasis added.).  The use of the word "may" indicates the statute is permissive; it gives the district court discretion to grant a temporary order for reasonable attorney fees.  Minn. Stat. § 645.44, subd. 15 (2004).  

Here, the district court declined to consider husband's motion for temporary relief because it was untimely.  By refusing to consider the motion, the court did not deprive husband from retaining legal counsel and seeking recovery of his attorney fees in a final order or judgment.  On this record, we fail to see how husband was deprived of his right to legal counsel.

II.

            Husband argues that the district court erred by improperly finding him in default.  The decision to grant or deny a motion for default judgment lies within the discretion of the district court, and the appellate court will not reverse absent an abuse of that discretion.  Black v. Rimmer, 700 N.W.2d 521, 525 (Minn. App. 2005), review dismissed (Minn. Sept. 28, 2005).

Failure to obey a discovery order may result in a judgment by default against a party.  Minn. R. Civ. 37.02(b)(3).  Additionally, failure to comply with the rules related to prehearing conferences in a family court proceeding may lead to a hearing of the matter as a default.  Minn. R. Gen. Pract. 305.02(c).  Here, the record demonstrates that husband repeatedly failed to comply with discovery requests and prehearing orders from the district court.

At the default hearing, husband argued that he could not comply with discovery because of the court's refusal to hear his motion for temporary relief, which may have afforded him funds to retain counsel.  In response, the district court stated:

The record will reflect that [husband] has chosen not to cooperate with discovery, he has chosen to not prepare a prehearing statement, and he has chosen to not have substantive discussion at the prehearing conference.

 

Mr. Woolley has chosen the course in this matter, and he's quite aware of the consequences as reflected in this letter.  He is in default for his failure to comply with court orders in this matter.

 

Husband failed to comply with the pretrial order that obligated him to submit a pretrial statement and fully respond to discovery.  Thus, the district court did not abuse its discretion by finding him in default.

III.

 

Husband argues that the property distribution is "inequitable" because the district court awarded wife the marital homestead with no comparable award to husband, apportioned over $100,000 more in debt to husband than it apportioned to wife, and awarded husband a substantially less valuable automobile.  District courts have "broad discretion" when dividing marital property, and appellate courts "will not alter a district court's property division absent a clear abuse of discretion or an erroneous application of the law."  Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn. App. 2005).  When an appellate court reviews a district court's division of marital property, the property division will be affirmed if it has an acceptable basis in fact and principle, even if the appellate court might have made a different disposition of the property.  Davey v. Davey, 415 N.W.2d 84 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988). 

            In a dissolution proceeding, the district court is to equitably divide the parties' marital property.  Minn. Stat. § 518.58, subd. 1 (2004); see Bury v. Bury, 416 N.W.2d 133, 136 (Minn. App. 1987) (noting a property division is to be equitable and need not be equal).  Here, wife was awarded the house, which had a net equity of $160,000, and the more valuable vehicle, and each party was awarded the retirement and pension accounts in their own name.  The district court found that husband, for his own reasons, withdrew over $140,000 from his retirement accounts between 2002 and 2004, and that the debt apportioned to husband was credit-card debt that he incurred.  Husband does not argue that the retirement benefits in his name were not marital property.  Thus, the property division is consistent with Minn. Stat. § 518.58, subd. 1.  See Taylor v. Taylor, 329 N.W.2d 795, 798 (Minn. 1983) (stating it is "preferred where there are sufficient assets available at the time of divorce to divide the present value of the retirement benefits without causing an undue hardship to either spouse and where testimony on valuation is not unduly speculative").

            Also, the district court found that husband failed to produce discovery.  His failure to do so limited the scope both of what the district court could consider when dividing the marital estate and what this court could consider when reviewing the property division.  And a party cannot complain about a district court's failure to rule in his favor when one reason it did so is because that party failed to provide the district court with the evidence necessary for the district court to fully address the question.  Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003), review denied (Minn. Nov. 25, 2003).

            Husband has not shown that the property division lacks a reasonable basis in fact or law.  Nor has he shown that the district court misapplied the law in dividing the parties' property.  Therefore, husband has not shown that the district court abused its discretion in its division of the marital property.

            Affirmed.

[1] The revocation of appellant's license to practice medicine is set forth in In re Medical License of Woolley, No. 05-33 (Minn. App. Aug. 30, 2005).