In re the Marriage of: Lynn Marie Lippert, petitioner, Respondent, vs. Patrick John Lippert, 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This opinion will be unpublished and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

A04-301

 

In re the Marriage of:

 

Lynn Marie Lippert, petitioner,

Respondent,

 

vs.

 

Patrick John Lippert,

Appellant.

 

Filed September 28, 2004

Affirmed in part, reversed in part, and remanded

Kalitowski, Judge

 

Washington County District Court

File No. F6-02-380

 

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

 

John P. Guzik, 2332 Lexington Avenue North, Roseville, MN 55113 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Patrick Lippert argues that the district court abused its discretion in excluding evidence of his nonmarital interest in the parties' homestead, dividing the parties' marital property, and awarding respondent Lynn Lippert attorney fees.  We affirm the district court's division of the parties' marital property and award of attorney fees to respondent, but we remand to the district court to consider appellant's evidence regarding his alleged nonmarital interest in the parties' homestead.

D E C I S I O N

I.

Appellant argues that the district court abused its discretion in excluding evidence of his claimed nonmarital interest in the parties' homestead.  We agree.  The district court has "wide discretion" regarding discovery, and absent an abuse of that discretion, a discovery decision will not be altered on appeal.  Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990).  But exclusion of evidence as a consequence of a discovery violation is a severe sanction that district courts should use with restraint.  Quill v. Trans World Airlines, 361 N.W.2d 438, 445 (Minn. App. 1985), review denied (Minn. Apr. 18, 1985).  An appellate court will consider a district court's clear warning that the uncooperative party will be sanctioned as a significant factor in deciding whether the sanction was appropriate.  Sudheimer v. Sudheimer, 372 N.W.2d 792, 795 (Minn. App. 1985). 

Here, the district court prohibited appellant from introducing evidence of his nonmarital interest, including testimony from his mother and documents from the closing, which occurred prior to the parties' marriage.  The court stated that appellant had provided "absolutely no notice of this issue until after the trial had begun," even though respondent had specifically requested information on this issue during discovery and the district court had issued an amended scheduling order requiring the parties to submit prehearing statements.

We recognize that appellant's disclosures did not comply with the district court's scheduling order.  But the record indicates that appellant gave some notice of his claimed nonmarital interest in the homestead prior to the October 2003 trial, both in his answers to respondent's interrogatories and in his prehearing statement.  Prior to trial, in response to respondent's interrogatory requesting information about his assets, appellant listed the parties' homestead, two vehicles, and a utility trailer.  Appellant specifically noted that he had purchased the parties' homestead in February 1998, prior to the parties' October 1998 marriage.  Appellant also noted that he had purchased the parties' homestead for $109,000 and it had a current fair market value of $189,000. 

In addition, in May 2003, more than four months before trial, appellant filed his prehearing statement.  He included the parties' homestead in a list of his property and reiterated that he had purchased the property in February 1998 for $109,000, that the property had a fair market value of $189,000, and that the property had an encumbrance of $141,000.  More importantly, an exhibit attached to appellant's prehearing statement stated:  "Husband owned the homestead prior to the marriage.  He purchased the house in February 1998 for $109,000.00.  Date of marriage is October 3, 1998.  Wife left the house and family on December 1, 2001[,] and has not contributed any financial assistance other than child support."  

And in July 2003, appellant disclosed his witness list, which included his mother, and noted that his mother would testify about his inheritance and his nonmarital interest in the parties' homestead. 

On this record we conclude that the district court erred in finding that appellant provided "absolutely no notice" that he was claiming a nonmarital interest in the parties' homestead or intending to present evidence to support this claim.  And we note that exclusion of evidence is a severe sanction, to be used with restraint.  Quill, 361 N.W.2d at 445.  While appellant's disclosures related to his claimed nonmarital interest may have been inadequate, the record does not indicate that this inadequacy was part of an effort by appellant to deceive or antagonize respondent or the district court.  We thus conclude that the district court abused its discretion in excluding all of appellant's evidence regarding his claimed nonmarital interest in the parties' homestead.

We remand to the district court to consider appellant's evidence in such proceedings as the district court deems appropriate and determine whether appellant has met his burden of proving that he has a nonmarital interest in the parties' homestead.  See Chamberlain v. Chamberlain, 615 N.W.2d 405, 412-13 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000).  In remanding this issue we are not expressing any opinion regarding the merits of appellant's claim.

II.

Appellant argues that the district court abused its discretion in distributing the parties' property.  We disagree.  Under Minnesota law, the district court must make a "just and equitable division of the marital property."  Minn. Stat. § 518.58, subd. 1 (2002).  District courts have broad discretion over the division of 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.  Chamberlain, 615 N.W.2d at 412 (clear abuse of discretion); Ebnet v. Ebnet, 347 N.W.2d 840, 842 (Minn. App. 1984) (misapplication of the law).  A district court abuses its discretion if its findings of fact are against logic and the facts on the record.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A reviewing court will affirm the district court's property division if it has "an acceptable basis in fact and principle even though [the appellate court] might have taken a different approach."  Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002).

Here, appellant contends that the marital estate was worth approximately $99,542 and that the district court erred in giving respondent $55,266, while giving appellant only $44,276.  Further, he contends that the district court failed to make findings to support this inequitable division. 

But in its order denying appellant's motion for a new trial and/or amended findings, the district court noted that the marital estate was worth approximately $92,700 and that respondent was awarded only $655 more than appellant.  These findings are supported by the record.  And in calculating the marital estate, appellant erroneously includes some assets and transactions that occurred prior to the valuation date.  Moreover, appellant also values certain assets at an amount lower than the value found by the district court, offers no explanation for the disparity, and does not argue that the district court erred in its valuation.  We conclude that the district court did not abuse its discretion in dividing the parties' property.

III.

            Appellant also argues that the district court erred in ordering him to pay $5,000 of respondent's attorney fees.  An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2002), "rests almost entirely within the discretion of the [district] court and will not be disturbed absent a clear abuse of discretion."  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quoting Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987)), review denied (Minn. Feb. 18, 1999).  A district court "shall" award a party attorney fees if (1) the fees are necessary for the good-faith assertion of that party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding; (2) the party from whom fees are sought has the ability to pay them; and (3) the party to whom fees are awarded does not have the means to pay them.  Minn. Stat. § 518.14, subd. 1.

            Although the district court noted appellant's conduct, the record indicates that the district court awarded respondent need-based attorney fees.   And the record supports the district court's award of attorney fees.  At the time of the district court's decision, respondent earned approximately $1,847 per month and had a significant amount of debt.  In contrast, appellant earned approximately $3,217 and had no debt.  Appellant contends that the award is not justified because his net income is insufficient to meet his reasonable expenses, as found by the court, and respondent's net income is more than her reasonable expenses.  But appellant fails to acknowledge that respondent has considerable personal debt and currently rents a home from her parents, whereas he owns his home and earns significantly more than respondent.  We cannot say the district court abused its discretion in concluding that respondent was in need of an award of attorney fees and that appellant had the ability to pay.  

            Affirmed in part, reversed in part, and remanded.