In re Margaret Suzanne Weldon, petitioner, Respondent, vs. Thomas Alan Weldon, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A03-239

 

In re Margaret Suzanne Weldon, petitioner,
Respondent,
 
vs.
 
Thomas Alan Weldon,
Appellant.

 

Filed October 14, 2003

Peterson, Judge

Reversed in part and dismissed in part; motion denied.

 

Dakota County District Court

File No. F7002860

 

Kevin J. McGrath, Mark E. Mullen, Jensen, McGrath & Mullen, P.L.L.P., Wells Fargo Plaza, Suite 1350, 7900 Xerxes Avenue South, Bloomington, MN  55431 (for respondent)

 

James C. Lofstrom, 4635 Nicols Road, Suite 206, Eagan, MN  55122 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a post-dissolution order, appellant-husband Thomas Alan Weldon argues that the district court erred by (1) granting respondent-wife Margaret Suzanne Weldon's motion for permission to keep, rather than sell, the marital homestead; and (2) requiring him to relinquish his firearms.  Husband also argues that the district court abused its discretion by awarding wife attorney fees without making the required findings.  We reverse in part and dismiss in part.

FACTS

            The parties' marriage was dissolved in July 2002.  The dissolution judgment contains the following finding of fact:

9.  [Wife] has a nonmarital interest in the homestead . . . constitut[ing] 24.4 percent of the purchase price of the homestead.

[Husband] contributed . . . premarital funds toward the purchase of the [homestead].  . . . These monies constitute 5.93 percent of the purchase price of the homestead. Applying these percentages to the current fair market value of the home ($300,000.00 minus $21,000.00 for realtor's commissions) leaves [wife] with a premarital interest of $68,080.83 and [husband] with a premarital interest of $16,558.15.

After deducting realtor's commissions, the parties' premarital interests, and the mortgage balance, the marital equity in the home totals $154,361.02.  One half of the marital equity in the home is $77,180.51. [Wife's] premarital and marital interests in the home total $145,262. [Husband's] premarital and marital interests in the home total $93,739.

[Wife] plans to sell the marital homestead and purchase a smaller residence requiring less maintenance.

 

            Based on this finding of fact, the dissolution court concluded:

 

4.  [Wife] is awarded the marital homestead . . . subject to [husband's] lien in the amount of $93,739.00.  [Husband] shall submit a quit claim deed to [wife] within 30 days of entry of this Decree.

5. [Wife] shall immediately list the homestead for sale. . . . The proceeds of the sale, after payment of the mortgage balance, normal closing costs (including realtor's commissions), and reimbursement to [wife] for necessary repairs, shall be divided as set forth in Finding #9.  The percentages allocated to premarital interests shall control if the dollar amounts specified are not consistent with the actual proceeds of sale.

 

(Emphasis added.)

            Each party was also awarded personal property.  The personal property awarded to husband included a gun.

            The judgment was entered July 29, 2002.  Neither party brought a post-trial motion or appealed the judgment.  On October 18, 2002, wife filed a motion asking the district court to (1) clarify and construe conclusion of law number 4 in the judgment to permit her to pay husband $93,739 in complete satisfaction of his lien on the homestead and order husband to provide her with a quit-claim deed for the homestead; and (2) order husband to comply with the federal Violent Crime Control and Law Enforcement Act, 18 U.S.C. § 922(g)(8)(2000), with respect to the gun awarded to him in the judgment.  Wife also sought attorney fees and costs "of not less than $1500" incurred in bringing the motion.  Husband did not submit any documents in response to wife's motion.

Following a hearing, the district court granted wife's motion in all respects.  Husband requested permission from the court to move for reconsideration pursuant to Minn. R. Gen. Pract. 115.11.  The district court never responded to husband's request, and husband appealed.  By motion, wife seeks attorney fees on appeal.

D E C I S I O N

1.            Husband argues that the district court had no jurisdiction to reopen the judgment and permit wife to keep the homestead and satisfy his lien by paying him $93,739 because the property division was final under Minn. Stat. § 518.64, subd. 2(e) (2002).

A district court "does not have the authority to modify a property division after the original decree has been entered and the time for appeal expired."  Stolp v. Stolp, 383 N.W.2d 409, 410 (Minn. App. 1986).  But "[t]he [district] court has the power to implement or enforce the provisions of a judgment and decree so long as the parties' substantive rights are not changed."  Kornberg v. Kornberg, 542 N.W.2d 379, 388 (Minn. 1996 ).  If a judgment is ambiguous, a district court may construe or clarify it.  Stieler v. Stieler, 244 Minn. 312, 318-19, 70 N.W.2d 127, 131 (1955).  A final order in a proceeding to interpret or enforce a dissolution-judgment provision relating to property is appealable.  Erickson v. Erickson, 430 N.W.2d 499, 500 (Minn. App. 1988).

            "Whether language is ambiguous is a question of law to be decided initially by the trial court; if language is reasonably subject to more than one interpretation, there is ambiguity."  Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn. App. 1986).  A reviewing court is not bound by and need not give deference to a district court's decision on a purely legal issue.  Modrow v. JP Foodservice, Inc.  656 N.W.2d 389, 393 (Minn. 2003) (citing Frost-Benco Elec. Ass'n v. Minn. Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984)).

            In the post-dissolution order the district court concluded that the judgment

entitles [wife] to satisfy [husband's] lien interest by paying to him $93,739.00.  While Conclusion of Law Number Five states that [wife] shall immediately list the marital homestead for sale, Conclusion of Law Number Four expressly awards the marital homestead to [wife] and provides that the award is subject only to [husband's] lien in the amount of $93,739.00.

 

            The district court did not expressly find that the judgment is ambiguous, but it appears that the court concluded that because the judgment awards the homestead to wife subject to husband's lien and also directs wife to sell the homestead, the judgment is ambiguous.  When read together, however, these two conclusions of law are not inconsistent, and they do not create an ambiguity.  Conclusion of law number four does not award the homestead to wife subject only to husband's lien; the homestead award is also subject to wife's duty to sell the homestead and distribute the sale proceeds as directed by conclusion of law number five. 

The final sentence in conclusion of law number 5, which has been emphasized above, unambiguously states that if the dollar amounts specified in finding of fact number nine are not consistent with the actual proceeds of sale, the parties' nonmarital interests in the homestead should be determined by applying the percentages set forth in finding of fact number nine to the actual proceeds of sale.  Because the percentages control, the final value of husband's lien cannot be determined until the home is sold.  By permitting wife to satisfy husband's lien by paying husband $93,739, the district court prevented husband from benefiting if the home is sold for more than $300,000 or losing if the home is sold for less than $300,000, which changed the parties' substantive rights under the judgment.  Therefore, we reverse the portion of the post-dissolution order that permits wife to keep the homestead and satisfy husband's lien by paying him $93,739.

2.            Husband argues that the district court erred by ordering him to comply with the federal Violent Crime Control and Law Enforcement Act of 1984 by turning any guns in his possession in to the permanent custody of the Dakota County Sheriff.

The Violent Crime Control and Enforcement Act of 1984 states that

 

[i]t shall be unlawful for any person

 

. . . .

 

who is subject to a court order that . . . by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

 

. . . .

 

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

 

18 U.S.C. § 922 (g)(8)(C)(ii).  Wife obtained an Order for Protection (OFP) against husband in September 2000 that was extended until September 11, 2002.  Husband concedes that the language in the OFP fits within the purview of the federal act, but he argues that as of the date of the district court's February 3, 2003, order, or even as of the date of the November 7, 2002, hearing on wife's motion, the OFP had expired, and he was no longer subject to a court order that made it unlawful for him to possess firearms. 

            The record establishes that at the time of the hearing, father was no longer subject to the OFP.  Thus, the district court erred as a matter of law in applying the act and ordering father to give the Dakota County Sheriff any guns in his possession.  Therefore, we reverse the portion of the post-dissolution order that requires husband to turn any guns in his possession in to the permanent custody of the Dakota County Sheriff.

            Wife argues that because husband did not submit any pleadings opposing her motion, this issue was not raised in the trial court, and issues not litigated in the trial court or raised in a motion for new trial may not be presented for the first time on appeal.  But wife cites no authority for her argument that an issue is not litigated if one party's position on the issue is not opposed by another party.  Wife raised this issue in her motion, and the district court decided the issue.  The issue is not being raised for the first time on appeal.

Wife also contends that husband did not disclose this as an issue on appeal in his statement of the case.  "[N]otices of appeal are to be liberally construed in favor of their sufficiency."  Kelly v. Kelly, 371 N.W.2d 193, 195 (Minn. 1985).  "Thus, a notice of appeal is sufficient if it shows an intent to appeal and the order appealed from apprises the parties of the issues to be litigated on appeal."  Id. at 195-96.  Husband's statement of the case shows intent to appeal, and the order that he appeals from, which was attached to his statement of the case, apprised wife of the issues on appeal.

3.            Husband argues that the district court erred in awarding wife attorney fees.  Wife argues that because the order for attorney fees has not been reduced to judgment, husband's appeal is premature.  Generally, an order for the recovery of money, including an order awarding attorney fees, must be reduced to judgment prior to appeal.  Sheeran v. Sheeran, 481 N.W.2d 578, 579 (Minn. App. 1992).  If the order is not reduced to judgment, this court must dismiss that portion of the appeal as premature.  Id.  Accordingly, husband's appeal as it relates to attorney fees is dismissed.

By motion, wife seeks attorney fees on appeal, arguing that the disparity in the parties' financial resources justifies an award and that husband's conduct contributed to the expense of the appeal.  An award of attorney fees on appeal rests in this court's discretion.  Allstate Ins. Co. v. Allen, 590 N.W.2d 820, 823 (Minn. App. 1999).

In a marital dissolution proceeding, "the court shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding" if the court finds that (a) the fees are necessary for a good-faith assertion of the party's rights; (b) the party from whom fees are sought has the means to pay them; and (c) the party to whom fees are awarded does not have the means to pay them.  Minn. Stat. § 518.14, subd. 1 (2002).  The court also has discretion to award "additional fees, costs, and disbursements against a party who unreasonably contributes" to the proceeding's length or expense.  Id.

Wife argues that the financial circumstances of the parties remain unchanged since the date of the dissolution.  But, at that time, the district court determined that "neither party has the ability to contribute toward the attorney's fees of the other while retaining the ability to pay his/her own counsel."  Upon carefully reviewing the record, we do not find a disparity in the parties' financial positions sufficient to warrant an award of attorney fees, and the record does not indicate that husband's conduct unreasonably contributed to the length or expense of the appeal.  We, therefore, deny wife's motion for attorney fees.

            Reversed in part and dismissed in part; motion denied.