Robin Dale Abel, petitioner, Respondent, vs. Kathi Jo Abel, Appellant.

Robin Dale Abel, petitioner, Respondent, vs. Kathi Jo Abel, Appellant. A06-1733, Court of Appeals Unpublished Decision, September 18, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1733

 

Robin Dale Abel, petitioner,
Respondent,
 
vs.
 
Kathi Jo Abel,
Appellant.

 

Filed September 18, 2007

Affirmed

Wright, Judge

 

Wilkin County District Court

File No. 84-FX-06-000019

 

 

Tracey R. Lindberg, Tracey R. Lindberg Law Firm, 225 North Fifth Street, Breckenridge, MN  56520 (for appellant)

 

Janel B. Fredericksen, Smith, Strege & Fredericksen, 321 Dakota Avenue, Wahpeton, ND  58075 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Minge, Judge; and Worke, Judge.

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this appeal from the district court's denial of her motion to compel respondent-husband to sell the marital home as provided in the dissolution judgment and decree, appellant-wife argues that the district court erred by failing to enforce unambiguous provisions in the judgment and decree and by modifying the provisions of a final property division after the time for appeal had run.  Appellant also challenges the denial of her motion for attorney fees.  We affirm.

FACTS

On May 5, 2006, a judgment and decree incorporating the parties' marital€‘termination agreement dissolved the marriage of appellant Kathi Abel (wife) and respondent Robin Abel (husband).  Under the property settlement, husband will both purchase wife a home in Fergus Falls and pay wife $360,000.  The $360,000 monetary settlement is to be paid in monthly installments of $2,000 in accordance with an amortization table and two lump-sum payments of $10,000 in 2006.  This debt is secured with husband's interest in his farm partnership.

When the judgment and decree was entered, the marital home was on the market with the understanding that it would be sold "as soon as practicable."  After paying off the $80,000 mortgage balance on the marital home and the costs of the sale, the proceeds from the sale would be "applied toward any debt due and owing" on the Fergus Falls home that husband was obligated to purchase for wife.  To finance the purchase of wife's home, the judgment and decree "allow[s]" husband to encumber the home for wife with a mortgage for a period not to exceed 15 years.  After any mortgage on wife's home is paid in full, husband must "quit claim any interest he has in the property . . . and [wife] shall at that point have all right, title and interest" in the home.  In the event that the mortgage on wife's home is satisfied with the proceeds from the sale of the marital home, the judgment and decree provides that "the remaining excess net proceeds shall be applied towards payment of the Property Settlement Payment." 

The parties listed the marital home for $329,000, but the only offer to purchase the marital home was for $250,000.  The listing agreement on the marital home expired in March 2006.  Husband borrowed $200,000 and purchased a home in Fergus Falls for wife without a lien or mortgage encumbrance.  He then quit-claimed the Fergus Falls home to wife.  Husband currently resides in the marital home and does not want to sell it.

In June 2006, wife moved to compel husband to renew the listing agreement and reduce the listing price of the marital home from $329,000 to $279,900, consistent with the estimated market value established by the parties' real-estate broker; wife also sought attorney fees.  The district court denied the motion, finding that selling the marital home would be "unduly burdensome" to husband and there is no legal or equitable basis for wife's request for relief.  This appeal followed.

D E C I S I O N

 

I.

 

Wife argues that the district court erred when it denied her motion to compel the sale of the marital home because the district court's ruling constitutes an improper modification of the property division after the judgment and decree has become final. 

When a judgment and decree is entered, it is final subject to the right of appeal unless a party establishes in a timely motion a basis for reopening the judgment and decree.  Minn. Stat. § 518.145, subds. 1, 2 (2006).  Such bases include newly discovered evidence, fraud, mistake, or excusable neglect.  Id., subd. 2.  After the time for appeal has expired, the district court may not modify a division of property in the absence of one of the statutory bases.  Shirk v. Shirk, 561 N.W.2d 519, 523 (Minn. 1997); see Redmond v. Redmond, 594 N.W.2d 272, 275 (Minn. App. 1999) (stating that party may not seek modification of property division based on changed circumstances).  But the district court may, in its discretion, issue an order that implements or enforces specific provisions of the judgment and decree, as long as the order does not alter the terms therein or affect the parties' substantive rights.  Erickson v. Erickson, 452 N.W.2d 253, 255-56 (Minn. App. 1990); see Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991) (observing that district court has power to clarify and construe judgment and decree as long as parties' substantive rights are not changed).

A stipulation is treated as a binding contract.  Shirk, 561 N.W.2d at 521.  As a general rule, when the language employed by the parties in a stipulated provision of a judgment and decree is unambiguous, it shall be construed according to its plain meaning.  Starr v. Starr, 312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977).  "[A] dissolution provision is unambiguous if its meaning can be determined without any guide other than knowledge of the facts on which the language depends for meaning."  Landwehr v. Landwehr, 380 N.W.2d 136, 138 (Minn. App. 1985) (quotation omitted).  If, when judged by its language alone and without resort to parol evidence, a provision is reasonably susceptible of more than one meaning, it is ambiguous.  Id.  But whether ambiguity exists cannot be determined by reading words in isolation; rather, the stipulated judgment and decree must be considered in its entirety.  Id. at 139.

 Whether a dissolution provision is ambiguous presents a legal question, which we review de novo.  Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn. App. 1986).  Parol evidence may be admitted to clarify the intent of the parties expressed in an ambiguous dissolution provision.  Webb v. Webb, 360 N.W.2d 647, 649 (Minn. App. 1985).  When relying on parol evidence for clarification of the parties' intent, the district court's construction of ambiguous language is a finding of fact, which we review for clear error.  Donnay v. Boulware, 275 Minn. 37, 44, 144 N.W.2d 711, 716 (1966).  In doing so, we accord great weight to the district court's construction of its own judgment and decree.  Redmond, 594 N.W.2d at 275-76. 

The district court determined that the parties had conflicting interpretations of the property-settlement provisions of the judgment and decree.  We, therefore, examine each relevant provision in turn.  Conclusion of law 17 in the judgment and decree provides in pertinent part:

The parties agree that the [marital] house is currently listed for sale, and shall be sold as soon as practicable.  The net proceeds of the sale, following the payment of any necessary realtor's fees, costs of sale, and underlying mortgage shall be transmitted to [wife's] name only, and shall be applied toward any debt due and owing on the home to be purchased for her by [husband] in Fergus Falls, Minnesota . . . . [T]he remaining excess net proceeds shall be applied towards payment of the Property Settlement Payment.

 

The judgment and decree further details the method by which husband may acquire the Fergus Falls home for wife.  Conclusion of law 25 provides in pertinent part:

[Husband] shall be allowed to encumber the property with a mortgage with a term not to exceed fifteen (15) years.  [Wife] shall be awarded the right, title and interest on such property, subject to said Mortgage, which [husband] agrees to assume and be responsible for, that will allow her to claim the property as her homestead.  During the period in which the house remains subject to any lien or encumbrance, [husband] shall be responsible for all real property taxes and special assessments, and shall provide homeowner's coverage for the property. . . . After the mortgage is paid in full . . . [husband] shall quit claim any interest he has in the property to [wife] and [wife] shall at that point have all right, title and interest in the property.

 

            In its analysis, the district court considered the two major elements of the property settlement to be the purchase of the Fergus Falls home for wife and the $360,000 monetary award.  When viewed in this light, it is undisputed that husband fulfilled his obligation to purchase the home for wife, paid the two lump-sum payments of $10,000 in 2006, and is paying the remainder of the $360,000 monetary settlement in $2,000 increments.  Wife argues that the district court failed to enforce the unambiguous provisions of the judgment and decree, which require husband to sell the marital home "as soon as practicable."  The term "practicable" is defined as "reasonably capable of being accomplished; feasible."  Black's Law Dictionary 1210 (8th ed. 2004); see also The American Heritage College Dictionary 1073 (3d ed. 2000) ("Capable of being effectuated . . .; feasible").  The judgment and decree is clear and unambiguous as to the parties' intent provided that sale of the marital home is practicable or reasonably capable of being accomplished.  But it is silent as to the parties' intent should the sale be impracticable because of market conditions, as it was here.  Because the terms of the judgment and decree are indefinite as to the parties' intent under these circumstances, the district court may clarify or interpret the judgment and decree to achieve its purposes without changing the parties' substantive rights.  Hanson v. Hanson, 379 N.W.2d 230, 233 (Minn. App. 1985).    

            We review the district court's clarification of the parties' intent for clear error.  Landwehr, 380 N.W.2d at 140.  Considering both the express and implied terms in the judgment and decree, Thompson v. Thompson, 385 N.W.2d 20, 22 (Minn. App. 1986), the district court concluded that the parties' intent was that husband would purchase the Fergus Falls home for wife.  The district court acknowledged that husband did not finance the home in the manner that the parties contemplated.  But because the intent and purpose of the property division were fulfilled, the district court found, husband substantially complied with the terms of the judgment and decree.  This finding is not clearly erroneous. 

            Reading the express and implied terms of the judgment and decree together, the purpose of selling the marital home was to use the proceeds to pay for "any debt due and owing" on wife's Fergus Falls home.  In other words, selling the marital home was a means to achieve the parties' contemplated ends of acquiring the Fergus Falls home for wife.  In Hanson, we held that the district court did not abuse its discretion by implementing a property division when the basic intent and purpose of the judgment and decree's directive were fulfilled, even though the precise language of the judgment and decree did not articulate what was later found necessary to achieve its broad purpose.  379 N.W.2d at 233.  A similar conclusion is warranted here.   

In support of compelling the sale of the marital home, wife argues that she is entitled to receive all net proceeds from the sale to satisfy the $360,000 monetary settlement.  But this interpretation of the judgment and decree fails to contemplate two pertinent factors that undermine the motion to compel: (1) sale of the marital home was not practicable, and (2) sale of the marital home was a mechanism to enable husband to purchase wife's home, which was accomplished by an alternate means.  Conclusion of law 17 in the judgment and decree requires the excess net proceeds to apply first to the marital home's underlying mortgage and costs of sale, then to "any debt due and owing on the [Fergus Falls] home." 

In contemplating how husband might purchase the Fergus Falls home for wife, conclusion of law 25 provides that husband "shall be allowed to encumber the [Fergus Falls home] with a mortgage."  But, as wife acknowledges, husband was not required to do so.  When read in context, these provisions of the judgment and decree articulate the parties' obligations if husband purchases the Fergus Falls home through mortgage financing.  But the judgment and decree does not contemplate the parties' obligations if, as here, husband fulfilled his obligation to purchase the Fergus Falls home with another financial arrangement.  

Wife argues that the district court's interpretation disregards the parties' intent that she receive a lump-sum prepayment toward the monetary settlement from the marital home's excess net proceeds.  She maintains that she is denied the benefit of the bargain because, in exchange for husband's interest-free property-settlement payments, she would receive from the excess net proceeds from the sale of the marital home "prepayment of a substantial amount of the monies [owed] to her."  But this benefit was speculative and contingent on a "practicable" sale of the marital home.  Because only the excess net proceeds were to be applied toward the monetary settlement, wife could not know at the time of the judgment and decree the amount for which the marital home would eventually be sold, the costs of the sale, the amount of any mortgage on the Fergus Falls home, and, consequently, the amount of excess net proceeds, if any. 

Moreover, in light of the housing-market conditions at the time, wife is held harmless.  The parties originally listed the marital home for $329,000.  The district court found that the only offer to purchase the marital home was for $250,000.  The parties' real-estate broker later estimated the marital home's market value at $279,900.  The outstanding mortgage on the marital home was $80,000, and husband incurred a debt of $200,000 from the purchase of wife's home.  Thus, if husband sold the marital home for either $250,000 or $279,900 and paid the outstanding mortgage, costs of sale, and debt acquired in the purchase of wife's home, there would not be any excess net proceeds from which to pay toward the monetary settlement.  Simply put, the record does not establish that the marital home could be sold for a price that would provide wife with a lump-sum prepayment under the judgment and decree.  Moreover, because husband has quitclaimed the Fergus Falls home to wife, rather than waiting up to 15 years as permitted by the judgment and decree, she now has sole title to the property free from any encumbrances.  She may borrow against it, sell it, or improve it.  Therefore, wife cannot demonstrate that the district court's clarification of the judgment and decree changed her substantive rights.  Accordingly, the district court properly denied the motion to compel. 

II.

A.

            Wife also argues that the district court abused its discretion when it denied her request for need-based attorney fees for bringing the motion to enforce the judgment and decree.  An award of attorney fees rests within the discretion of the district court and will not be disturbed absent an abuse of that discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  A district court "shall" award attorney fees when it finds that it is necessary for a party to assert his or her rights in an action, that the payor has the financial means to pay the fees, and that the payee lacks the means to pay the fees.  Minn. Stat. § 518.14, subd. 1 (2006); Crosby, 587 N.W.2d at 298. 

Here, the district court concluded that there was no legal or equitable basis to grant wife's motion to compel husband to sell the marital home and apply the net proceeds of the sale to pay the monetary settlement.  For the reasons set forth above, we agree.  Therefore, appellant's motion was not "necessary for the good-faith assertion of [appellant's] rights" as required by Minn. Stat. § 518.14.  On the record before us, the district court did not abuse its discretion by denying wife's request for attorney fees.    

B.

In the last sentence of his appellate brief, husband seeks attorney fees and costs incurred on appeal.  As a general rule, attorney fees may be recovered only if specifically authorized by a contract or statute.  Schwickert, Inc. v. Winnebago Seniors, Ltd., 680 N.W.2d 79, 87 (Minn. 2004); see also Geske v. Marcolina, 624 N.W.2d 813, 816 (Minn. App. 2001) (noting that when awarding a party attorney fees, court may do so only if there is specific authority allowing recovery).  Husband fails to specify any authority for his attorney-fees request, and he has not followed the procedural requirements for a fee award on appeal under Minn. R. Civ. App. P. 139.06.  Moreover, even if husband had followed the procedural requirements, he has not alleged a factual basis for the award. Accordingly, we deny husband's request for attorney fees.

 

Affirmed.