Joanna Behr, petitioner, Respondent, vs. Michael Behr, Appellant.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480 A. 08, subd. 3 (1994) State of Minnesota in Court of Appeals C1-96-538 Joanna Behr, petitioner, Respondent, vs. Michael Behr, Appellant. Filed October 15, 1996 Affirmed Amundson, Judge Rice County District Court File No. F5-93-1062 Jon Erik Kingstad, P.O. Box 318, 310 South St. Croix Trail, Lakeland, MN 55043 (for Respondent) Terri A. Blomfelt, 724 Norwest Center, 230 West Superior Street, Duluth, MN 55802 (for Appellant) Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Harten, Judge. Unpublished Opinion AMUNDSON, Judge (Hon. Bernard E. Borene, District Court Trial Judge) Michael Behr appeals from a judgment denying his request for bad faith fees and awarding respondent Joanna Behr attorney fees in a proceeding she brought to enforce a foreign judgment against him. We affirm. Facts In August 1985, a Wisconsin circuit court entered judgment dissolving the marriage of appellant Michael Behr and respondent Joanna Behr and ordering, among other things, that appellant pay $60,983.45 to respondent. This sum represented a division of marital property, attorney fees of $1,000, and $18,083.45 in temporary child support and spousal maintenance arrearages. Appellant moved to Minnesota and respondent sought enforcement of the Wisconsin judgment here. The district court granted appellant a continuance to petition the Wisconsin court for modification of the original judgment to give him credit for making mortgage and real estate tax payments on respondent's homestead after the dissolution and for maintaining life insurance policies naming her as beneficiary. The Wisconsin court denied appellant's request, but the court's decision only referred to the issue of payment of insurance premiums. The Wisconsin Court of Appeals affirmed this decision. See Behr v. Behr, 530 N.W.2d 70 (Wis. App. 1995). The Minnesota district court determined that it would address the mortgage and tax issues because it was unclear whether appellant had requested the Wisconsin court to grant him credit for those payments. The district court found that appellant was entitled to credit for payments of real estate taxes and mortgage principle, but not interest. The court determined that appellant was still in arrears on a substantial portion of the judgment and held him in contempt. The district court ordered appellant to pay respondent $750 in attorney fees. Appellant moved for amended findings and a new trial. The district court denied this motion and again issued an order finding appellant in contempt. The court stayed execution of the jail sentence while appellant brought an appeal. This court dismissed the appeal as premature and remanded to the district court for a ``second-stage hearing'' to determine whether appellant had an excusable reason for his nonperformance of the purging conditions of the contempt order. Behr v. Behr, No. C6-94-1194 (Minn. App. June 13, 1994 ) (order op.). At the second-stage hearing, appellant did not show or even claim he had an inability to pay the unpaid portion of the judgment. Instead, he continued to claim that he should get credit for payments he made on respondent's behalf. The district court found appellant continued to be in constructive civil contempt of court and awarded respondent $5,000 in attorney fees. The district court sentenced appellant to jail, but stayed sentence to allow him to perfect an appeal, which he then did. In that appeal, this court determined that the district court properly refused to offset the amount of mortgage interest appellant had paid, affirmed the contempt order as to unpaid attorney fees contained in the dissolution judgment, and reversed the contempt order as to enforcement of the marital property settlement. Behr v. Behr, No. C8-95-428 (Minn. App. Aug.22, 1995), review denied (Minn. Oct. 10, 1995). We also determined that the order awarding attorney fees to respondent was not yet appealable because judgment had not yet been entered. See id. On remand, respondent sought an award of attorney fees for defending the enforcement action. Appellant now brings this appeal challenging the denial of his motion for fees and challenging the previous award of fees to respondent, now reduced to judgment. Decision I. Minn. Stat. §§ 518.14 and 549.21 Both Minn. Stat. § 518.14 and Minn. Stat. § 549.21 may serve the basis for an award of fees to an individual who seeks relief from the court to enforce the terms of a dissolution judgment. An award of attorney fees under Minn. Stat. 𨹞.14 rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion. Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987). Under section 549.21, the court has discretion to award fees and costs when a party acts in bad faith, asserts a frivolous claim or defense that is costly to the other party, or ``asserts a position solely to delay the ordinary course of the proceedings ***.'' Minn. Stat. 𨹽.21, subd. 2. The standard of review of a decision on attorney fees and costs under section 549.21 is whether the trial court abused its discretion. Radloff v. First American Nat'l Bank, 470 N.W.2d 154, 156 (Minn. App. 1991), review denied (Minn. July 24, 1991). The record contains no evidence regarding respondent's income and expenses. Thus an award of fees is not warranted under Minn. Stat. § 518.14 based upon appellant's ability to pay those fees and respondent's inability to pay them. The court may, however, award fees ``against a party who unreasonably contributes to the length or expense of the proceeding.'' Minn. Stat. 𨹞.14, subd. 1. The court may award fees under this provision ``based on the impact a party's behavior has had on the costs of the litigation regardless of the relative financial resources of the parties.'' Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991); See also Holder v. Holder, 403 N.W.2d 269, 271 (Minn. App. 1987). Appellant argues that the facts supporting the fee awards in Dabrowski and Holder demonstrate ``unreasonable'' actions taken by the party against whom fees were awarded, whereas the facts here do not. We disagree. First, a comparison of the facts in Dabrowski and Holder, cases in which we affirmed the trial court's award of fees, is of little use here to support a reversal of the trial court's discretionary decision. Second, the record before us demonstrates a long history of appellant's unreasonable actions, starting with his failure to provide any information about his finances during the dissolution proceedings in Wisconsin and culminating with the lengthy and unnecessarily contentious enforcement proceedings in Minnesota.(1) [Footnote] (1)The record indicates there was a concern during the parties' divorce proceedings that appellant was hiding assets. The parties' dissolution decree contains a statement by the court about appellant's failure to provide financial information, causing the court to establish a constructive trust on all appellant's property, wherever situated, in favor of respondent and the parties' minor children. Appellant claims that, because he obtained a reduction of $7,976.50 from the original $42,900 sought, the record cannot support a finding that he acted in bad faith or that he unreasonably delayed the enforcement proceedings. We disagree. The award of fees did not relate to appellant's meritorious claim, but instead to his claim he was not liable for the remaining balance due. Appellant contends that, because he made good faith arguments that he had satisfied the judgment by making various in-kind payments, the court abused its discretion when it ordered bad faith fees. To support this argument he cites Glarner v. Time Insurance Company, 465 N.W.2d 591, 598 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991). In that case, this court reversed an award of bad faith fees under section 549.21 because ``respondent failed to present any evidence below that appellant acted in bad faith in any way with respect to the litigation.'' Id. (Emphasis in original). In this case, however, the district court determined that a substantial portion of appellant's claims ``were just totally without merit,'' and that his continued litigation of these issues constituted ``misconduct.'' The district court viewed appellant's claims regarding payment of mortgage interest and insurance premiums as frivolous because the record contains no evidence that could support a finding that respondent had agreed to those payments as satisfaction of the judgment. As the district court found, and this court affirmed in the prior appeal, respondent was not unjustly enriched by appellant's payment of mortgage interest. Respondent could have paid off the mortgage immediately if she had had the cash payment of the judgment in hand. Further, because the underlying judgment did not include a provision for interest, any delay in the payment of the remaining sum benefited appellant and damaged respondent by further reducing the current value of the judgment when it was finally paid. In awarding an additional $5,000 in fees, the court stated: Well, in view of the past hearings, I found that [appellant's] arguments were just totally without merit. *** I said I'll give him an opportunity to go back to litigate that in Wisconsin. He did and he lost there, and he still hasn't paid ***. It's now February 13th, the following year, and they haven't gotten anything other than what he felt like paying. Given the history of this case, and the court's broad discretion to award fees and costs under Minn. Stat. §𨹞.14 and 549.21, we perceive no clear abuse of discretion in the court's determination that an award of fees was warranted here. The record supports a decision to award fees because appellant's continued claim of offset for interest payments and insurance premiums constituted an assertion of an unfounded position solely to delay the ordinary course of the proceedings and unreasonably delayed the proceedings. Finally, appellant challenges the amount of the fees awarded. He argues that the fee award impermissibly contains fees incurred by respondent in the proceedings in Wisconsin. Appellant also claims the record contains insufficient evidence to support the amount of the award because the record contains no affidavit or statement detailing respondent's costs and fees.(2) [Footnote] (2)Respondent has moved to strike this argument from appellant's reply brief because appellant did not make this argument in his brief and this argument is not in response to a ``new matter'' raised in respondent's brief. See Minn. R. Civ. App. P.128.02, subd.3 (``The reply brief must be confined to new matter raised in the brief of the respondent''). We agree. Appellant's brief contains no comment about the amount of fees, but only challenges the basis for the award, claiming that the fees include expenses for proceedings in Wisconsin. We grant respondent's motion to strike. Contrary to appellant's claim, the record demonstrates that the district court's award of fees was based upon fees and expenses from the proceedings held in Minnesota. The district court specifically stated that the award was for ``attorney fees and expenses incurred in the Minnesota proceeding to enforce payment.'' Between the first award of $750 for fees and the award of $5,000, respondent incurred additional fees and expenses for the following: (1) responding to appellant's motion to amend the March 10, 1994 findings and for a new trial, including respondent's filing a memorandum of law and attending a hearing on this motion; (2) submitting a memorandum to the court of appeals on the issue of appealability of the March 10 and May 16, 1994 contempt orders (this court subsequently dismissed the appeal on July 12, 1994); (3) appearing at the second-stage contempt hearing on Feb.13, 1995; and (4) submitting a proposed final contempt order at the district court's request. Where, as here, the trial court was in a good position to estimate the value of services rendered, the court's estimation of the value of fees was reasonable and not an abuse of discretion. See Fick v. Fick, 375 N.W.2d 870, 875 (Minn. App. 1985). We hold that the district court did not abuse its discretion in calculating and awarding fees to respondent. II. Bad Faith Appellant challenges the district court's denial of his motion for an award of bad faith attorney fees from respondent under Minn. Stat. 𨹽.21, subd. 2. He claims entitlement to an award of attorney fees based on respondent's attempts to employ the remedy of contempt to enforce a marital property division. But respondent prevailed on the contempt issue after a contested hearing where appellant had a full opportunity to argue his position. While this court reversed the district court's finding of contempt regarding appellant's nonpayment of the portion of the judgment related to the property settlement, the finding of contempt for nonpayment of the portion of the judgment concerning attorney fees was valid and affirmed by this court on appeal. Further, respondent prevailed on the substantive issues regarding appellant's obligation to satisfy the judgment. Finally, respondent did not continue to challenge issues when a court ruled against her. Under these circumstances, the trial court did not abuse its discretion when it refused to award bad faith fees to appellant. III. Appellate Attorney Fees Respondent seeks an award of appellate attorney fees. We decline to make such an award of fees because the issues raised on appeal were not frivolous and because respondent has not demonstrated an inability to pay her fees. Cf. Dabrowski, 477 N.W.2d at 766 (recognizing that attorney fees may be awarded on appeal when appeal is frivolous or in bad faith, but deciding not to grant award of appellate attorney fees). Affirmed.