In re the Marriage of: Holly v. Anderson v. Derrik T. Anderson

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0926
A14-1596

In re the Marriage of:
Holly V. Anderson, petitioner,
Respondent,

vs.

Derrik T. Anderson,
Appellant.

Filed May 18, 2015
Affirmed in part, reversed in part, and remanded
Halbrooks, Judge

Scott County District Court
File No. 70-FA-09-14473

Mark A. Olson, Olson Law Office, Burnsville, Minnesota (for respondent)

Kay Nord Hunt, Lommen Abdo, P.A., Minneapolis, Minnesota; and

Shannon M. Bixby-Pankratz, Moss & Barnett, Minneapolis, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and

Stoneburner, Judge.


Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
 UNPUBLISHED OPINION

HALBROOKS, Judge

In this renewed and consolidated appeal after remand in a marriage-dissolution

dispute, appellant asserts that the district court erred by amending the determination of

his gross income, awarding respondent $1,000 per month in permanent spousal

maintenance, finding appellant in contempt for nonpayment of spousal maintenance, and

awarding respondent conduct-based attorney fees. We affirm in part, reverse in part, and

remand.

FACTS

Appellant Derrik T. Anderson and respondent Holly Virginia Anderson were

married in 1989. After separating in 2009, they entered into a partial stipulation

concerning custody of their minor child, parenting time, and health insurance, and went

to trial in late 2010 to resolve spousal maintenance, child support, and limited issues of

property division. After a three-day trial, the district court found that appellant’s average

gross monthly income as a cement finisher in 2010 was $3,980, that “side jobs” are a

“potential source of additional income” for him in the future, and that his claimed

monthly expenses were $4,800. Respondent is a technology assistant in a school district.

The district court found that her gross monthly income was $2,112.70 and her claimed

monthly expenses were $3,215. The 2011 judgment and decree required appellant to pay

$1,000 per month in permanent spousal maintenance and respondent to pay $113 per

month in child support. Both parties appealed, and we affirmed in part, reversed in part,

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and remanded. Anderson v. Anderson, No. A11-1224, 2012 WL 3023433 (Minn. App.

July 23, 2012) (Anderson I), review denied (Minn. Oct. 16, 2012).

In Anderson I, we concluded that (1) the district court did not err by extrapolating

appellant’s annual gross income from his year-to-date paystubs but did err by considering

future income from potential side jobs in determining the spousal-maintenance award

(I.A.1); (2) the district court did not err by not imputing income to appellant based on

potential side jobs or by not determining his gross income based on an average of the past

11 years (I.A.2); (3) the district court erred by failing to make findings about the parties’

reasonable expenses and failing to base its determination on the appropriate statutory

factors (I.C); and (4) the district court did not err by determining that appellant’s income

for child-support purposes was $3,980 per month (II.A), but that its worksheet

calculations of child support were flawed (II.D). We affirmed in part, reversed in part,

and remanded “for further proceedings on the issues discussed above in parts I.A.1, I.C.,

and II.D.”

On remand, appellant requested that the district court1 proceed without reopening

the record. Respondent opposed appellant’s request, attaching a newly obtained, state-

issued wage summary showing that appellant’s actual 2010 reported gross income was

nearly $10,000 more than he had represented to the district court based on the paystubs

offered at trial. Respondent later moved to reopen the judgment based on fraud. The

district court ordered an evidentiary hearing, stating, “[Respondent’s] Motion to Reopen

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Because the district court judge who conducted the trial had retired while the appeal
was pending, the case was reassigned on remand.

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the Record based on fraud on the part of [appellant] is GRANTED.” The district court

also found that the record contained “sufficient information . . . to make the necessary

findings dictated by” this court, but because the record would be reopened based on

fraud, the district court would “handle the remand, fraud, and [other] issues at [a single

hearing].”

After the hearing, the district court found that appellant’s 2010 gross annual

income was $62,591 ($5,216 monthly), which was $17,446 more than he had represented

at trial. The district court relied on appellant’s actual reported gross income and also

employed a seven-year average to estimate appellant’s income from side jobs. The

district court noted that

[d]uring trial, [appellant] claimed that his income was down
due to the bad economy and less work available to him,
however his 2010 tax return indicates that his income was
similar to what it had been in previous years. Moreover, his
timesheets . . . showed an increase in hours worked in the
month immediately following the original trial.

The district court also reconsidered the parties’ monthly expenses and found that

while respondent’s budget was “austere,” appellant’s should be reduced by $600 per

month to $4,200. The district court awarded $1,000 in permanent monthly spousal

maintenance to respondent and increased respondent’s child-support obligation to $363

per month as a result of the maintenance award. The order provides that appellant may

offset his maintenance obligation by $200 per month to recoup accrued unpaid child

support.

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 Both parties moved for amended findings, and the district court denied both

motions. The district court expressly rejected respondent’s request for a finding of fraud,

stating, “The Court did not make a finding of Fraud, and accordingly did not include such

a determination in the Order.” The district court did not enter judgment on its amended

order for spousal maintenance and child support.

Respondent later moved for a finding of constructive civil contempt based on

appellant’s continued nonpayment of spousal maintenance, an order for judgment on his

unpaid spousal maintenance (offsetting her unpaid child support), and an order requiring

appellant to maintain a life-insurance policy as security for his past and future

maintenance obligations. The district court granted the requested relief, found appellant

in contempt, ordered entry of judgment against appellant on his unpaid spousal

maintenance (less respondent’s unpaid child support), ordered him to obtain a life-

insurance policy to secure his obligations, and awarded respondent $7,162.50 in attorney

fees and $227 in costs.

Appellant filed a notice of appeal of the district court’s amended order on spousal

maintenance and child support and its order denying his motion for amended findings.

We dismissed the appeal as premature and directed the district court to enter judgment.

On Friday, May 30, 2014, appellant moved (without including a hearing date) to modify

spousal maintenance based on a substantial change in financial circumstances and to

vacate the $7,162.50 contempt-based attorney-fees award. On Monday, June 2, the

district court entered judgment on its amended spousal-maintenance and child-support

order, now the amended judgment and decree.

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 On June 4, appellant filed a notice of appeal of the district court’s contempt, life-

insurance, and attorney-fees order and its amended judgment and decree. The next day,

appellant filed an amended motion to modify spousal maintenance, setting a hearing date

in July. He later rescheduled the hearing at least once. Respondent responded by serving

a notice of intent to seek sanctions based on the motion to modify, which appellant

countered by filing a motion to compel discovery, for leave to exceed discovery limits,

and for attorney fees. After a combined hearing, the district court reserved appellant’s

motion to modify spousal maintenance pending the outcome of his appeal of the existing

award, denied his discovery motion, awarded an additional $5,139.50 to respondent in

conduct-based attorney fees, and denied all other requested relief. Appellant then filed a

notice of appeal of the motion-practice-based attorney-fees award and moved to

consolidate his appeals, which we granted.

DECISION

I.

Appellant challenges the district court’s amended determination of his gross

income, and consequently its spousal-maintenance award, arguing that the district court

erred on remand by modifying the determination of his gross income that we had

affirmed in Anderson I. On remand, the district court is charged with the duty of

faithfully executing the instructions of the appellate court. Halverson v. Vill. of

Deerwood, 322 N.W.2d 761, 766 (Minn. 1982). We review a district court’s compliance

with remand instructions for an abuse of discretion. State ex rel. Swan Lake Area

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Wildlife Ass’n v. Nicollet Cnty. Bd. of Cnty. Comm’rs, 799 N.W.2d 619, 631 (Minn. App.

2011).

In Anderson I, we remanded “for further proceedings on the issues discussed

above in parts I.A.I., I.C., and II.D.” 2012 WL 3023433, at *8. We specifically

concluded that “the district court erred when determining the amount of spousal

maintenance” and stated that the district court on remand “should make explicit findings

about the parties’ respective reasonable expenses, should acknowledge and consider the

resulting monthly deficit of each party, and should state reasons for its award that are

based on the [Minn. Stat. § 518.552, subd. 2 (2010)] factors.” Id. at *5. We also

concluded that the district court did not err by (1) extrapolating appellant’s annual gross

income from evidence of his year-to-date income, (2) not imputing income based on

potential side jobs, or (3) not determining appellant’s income based on an average of past

years of work history. Accordingly, we did not charge the district court on remand with

making a new determination of appellant’s gross income, and the district court exceeded

the scope of our remand by doing so. Because the amended finding of appellant’s gross

income was not within the scope of remand, we next consider whether there was another

basis on which the district court could have reopened the judgment in this respect.

On remand, respondent moved to reopen the judgment based on fraud, attaching

evidence tending to show that appellant’s actual 2010 reported income was

approximately $10,000 more than he had claimed at trial. “A decree of dissolution of

marriage . . . is final when entered, subject to the right of appeal,” unless a party

establishes in a timely motion a statutory basis for reopening the judgment and decree.

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Minn. Stat. § 518.145, subds. 1, 2 (2014). The statutory bases provided in Minn. Stat.

§ 518.145, subd. 2, include ordinary fraud and fraud upon the court. Thompson v.

Thompson, 739 N.W.2d 424, 428 (Minn. App. 2007). “The moving party bears the

burden of establishing a basis to reopen the judgment and decree.” Id.

“A district court may summarily dispose of a fraud claim . . . only where there is

no genuine issue of material fact in dispute and where a determination of the applicable

law will resolve the controversy.” Doering v. Doering, 629 N.W.2d 124, 130 (Minn.

App. 2001) (quotation omitted), review denied (Minn. Sept. 11, 2001). Based on

respondent’s prima facie showing of fraud, the district court properly granted an

evidentiary hearing on the issue of appellant’s 2010 gross income.

After considering the evidence presented, the district court declined to make a

finding of fraud. The district court nevertheless amended the finding of appellant’s 2010

gross income that we had affirmed in Anderson I. Because appellant’s gross income was

outside the scope of remand and the district court did not reopen the judgment based on a

finding of fraud, we conclude that the district court lacked a basis to make a new finding

of appellant’s gross income. We therefore conclude that the district court abused its

discretion by doing so, and we reverse the amended judgment and decree on that basis.

On remand, the district court is instructed to reconsider its spousal-maintenance award,

and therefore its child-support award, using the district court’s original finding that

appellant’s gross monthly income is $3,980. But we note that nothing in this decision

prevents respondent from seeking a modification of the spousal-maintenance award.

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 II.

Appellant correctly argues that our reversal of the spousal-maintenance award also

requires the reversal of the contempt finding for failing to comply with that order. “Civil

contempt proceedings are designed to induce future performance of a valid court order,

not to punish for past failure to perform.” Engelby v. Engelby, 479 N.W.2d 424, 426

(Minn. App. 1992). A civil contempt proceeding therefore falls “with the reversal or

other annulment of the order disobeyed.” Red River Potato Growers’ Ass’n v. Bernardy,

128 Minn. 153, 156, 150 N.W. 383, 384 (1915).

III.

Appellant argues that the district court abused its discretion by ordering him to

obtain a life-insurance policy to secure his spousal-maintenance obligation without

making findings about his insurability or the cost of the premiums. “The [district] court

has discretion to determine whether the circumstances justifying an award of

maintenance also justify securing it with life insurance.” Maeder v. Maeder, 480 N.W.2d

677, 680 (Minn. App. 1992) (quotation omitted), review denied (Minn. Mar. 19, 1992);

see also Minn. Stat. § 518A.71 (2014) (“[T]he court may require sufficient security to be

given for the payment of [maintainance] . . . .”). The Minnesota Supreme Court has

emphasized the importance of making factual findings regarding the obligor’s insurability

and the cost of insurance when ordering life insurance as security. Lee v. Lee, 775

N.W.2d 631, 642-43 (Minn. 2009). The district court here made no such findings before

imposing this requirement. We therefore conclude that the district court erred. We

remand for reconsideration of the order for life insurance in light of our spousal-

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maintenance ruling and, if the district court again orders life insurance as security, for

explicit findings on insurability and the cost of insurance.

IV.

Appellant argues that the district court abused its discretion by awarding conduct-

based attorney fees to respondent in connection with (1) her contempt motion for

nonpayment of spousal maintenance and (2) his motion to modify spousal maintenance,

to vacate the contempt-based attorney-fees award, for leave to exceed discovery limits,

and to compel discovery. Under Minnesota law, the district court may award conduct-

based attorney fees “against a party who unreasonably contributes to the length or

expense of [a dissolution] proceeding.” Minn. Stat. § 518.14, subd. 1 (2014). Conduct-

based attorney-fee awards “are discretionary with the district court.” Szarzynski v.

Szarzynski, 732 N.W.2d 285, 295 (Minn. App. 2007); see also Sharp v. Bilbro, 614

N.W.2d 260, 264-65 (Minn. App. 2000) (referring to “the breadth of the district court’s

discretion in awarding conduct-based attorney fees” and finding no abuse of its “broad

discretion”), review denied (Minn. Sept. 26, 2000).

Contempt-Motion-Based Fees

The district court found that appellant’s “refusal to comply with the Court Order to

pay spousal maintenance to [respondent] has unreasonably contributed to the length and

expense of the proceedings, and conduct-based attorney[] fees are appropriate.” The

district court ordered appellant to pay $7,162.50 in attorney fees and $227 in costs, which

it found were reasonably incurred by respondent in bringing her contempt motion.

Having reversed the district court’s finding of contempt on the merits, we also reverse the

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attorney fees awarded in connection with the contempt motion. See Gorz v. Gorz, 552

N.W.2d 566, 570-71 (Minn. App. 1996) (reversing the attorney-fee award after

concluding that the district court erred by finding the appellant’s motion meritless).

Motion-Practice-Based Fees

The district court also awarded attorney fees to respondent based on appellant’s

“pattern of avoiding his Court-ordered support and engaging in voluminous discovery

requests with the apparent intention to burden [respondent] with ongoing legal fees,”

noting that “[t]he Court does not look favorably on these tactics.” Appellant argues that

because the district court could have elected to rule on his motion to modify spousal

maintenance while his appeal of the existing award was pending, the motion to modify

and his related discovery motion were properly filed, and the district court therefore

clearly abused its discretion by awarding attorney fees. He does not argue here that his

motion to vacate the contempt-based attorney fees award was properly pursued in the

district court while he was challenging the same award on appeal.

Appellant relies on Perry v. Perry and Leifur v. Leifur in support of his challenge

to the motion-practice-based attorney-fees award, but neither case analyzes the propriety

of an attorney-fees award. In Perry, we held that because of the paramount importance

of the best interests of the children, a district court retains the authority to rule on a

motion to modify child support while an appeal of the existing order is pending, but the

district court has the discretion to defer its decision until the appeal is decided based on

principles of judicial economy. Perry v. Perry, 749 N.W.2d 399, 403 (Minn. App. 2008).

And in Leifur we held that, irrespective of any agreement of the parties, a modification of

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spousal maintenance may only be made retroactive to the date of service of notice of the

motion to modify. Leifur v. Leifur, 820 N.W.2d 40, 42-43 (Minn. App. 2012). We

conclude that Perry and Leifur do not bar the district court’s award of conduct-based

attorney fees here.

It is one thing to serve a motion to modify spousal maintenance for purposes of

establishing the date of retroactivity. See id. at 43 (interpreting Minn. Stat. § 518A.39,

subd. 2(e) (2010)). It is quite another to aggressively pursue a ruling on that motion,

request and reschedule hearings, seek leave to exceed discovery limits, file a motion to

compel responses to voluminous discovery, and file motions to vacate an earlier

contempt-based attorney-fees order while simultaneously appealing that award. In light

of the great deference we give to a district court’s decision to award conduct-based

attorney fees, we cannot say that the district court here clearly abused its discretion by

finding that appellant unreasonably contributed to the length or expense of the dissolution

proceeding. We therefore affirm the district court’s award of $5,139.50 in conduct-based

attorney fees.

Affirmed in part, reversed in part, and remanded.

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