In re the Marriage of: Cassie Marie Birr, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0708

In re the Marriage of: Cassie Marie Birr, petitioner,
Respondent,

vs.

Darrin John Birr,
Appellant.

Filed April 10, 2017
Affirmed
Stauber, Judge

Blue Earth County District Court
File No. 07-FA-15-1667

Tami L. Peterson, Saxton Peterson Law Firm, Mankato, Minnesota (for respondent)

Ryan B. Magnus, Jennifer L. Thon, Jones and Magnus, Attorneys at Law, Mankato,
Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Stauber, Judge; and Rodenberg,
Judge.
U N P U B L I S H E D O P I N I O N
STAUBER, Judge
In this marital-dissolution case, appellant -husband challenges the district court’s
division of marital property and its award of attorney fees to respondent wife. We affirm.

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FACTS
In the course of thei r dissolution of marriage, appellant Darrin John Birr (Darrin)
and respondent Cassie (Cassie) Marie Birr, settled issues of child custody and support,
spousal maintenance, and division of most of their marital property; but they were unable
to agree on division of the parties’ homestead and farm (the property). The parties
stipulated that the property was marital and “that the values and encumbrances identified
[in the stipulation] shall be used by the Court when determining the equitable division of
assets and debts.” The parties agreed that the property “has a value of $1,811,900 and is
encumbered by [a] contract for deed in the amount of $172,107.62.”
The parties have a vendee’s interest in the property, which has been owned and
farmed by Darrin’s family for years and includes the parties’ homestead. In 2011, the
parties entered into a contract for deed to purchase the property from Darrin’s father,
Marvin Birr, agreeing to pay a significantly discounted price of $200,000 at 4.25 percent
interest amortized over a 20-year period. At the time of the dissolution judgment, the
parties had paid $60,275.88 in principal and interest, and the contract had a remaining
balance of $172,107.62.
The contract for deed incl udes restrictive covenants. The parties are not permitted
to “create or . . . to accrue liens or adverse claims against the [p]roperty.” They cannot
“sell, assign, or otherwise transfer” their interest in the contract without the consent of
Marvin Birr in his “sole discretion,” and they “shall not have the right to prepay this
Contract at anytime without the expressed written consent of Seller, Marvin L. Birr.”
The contract also provides that “[i]n the event of any voluntary or involuntary sale or
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transfer of the property during the term of this Contract, Seller, Marvin L. Birr, shall have
the right of repurchase of the property for the same purchase price [of $200,000, on the
same terms].”
Both parties work full time in non-farm employment and have roughly equal
incomes. Darrin also farms the property. The marital assets consisted largely of the
property and the equipment that Darrin uses to farm the property, which was awarded to
him. Because there were no liquid assets to distribute, Cassie was unable to purchase a
home, and she requested that she be permitted to occupy the homestead with the parties’
three children, while Darrin would be permitted to farm the attached land. The district
court found that it was “possible [for Darrin] to farm without going into the [house].”
Because of the restrictions contained in the contract for deed, which would permit
Marvin Birr to cancel the contract upon a default, the district court proposed two
alternative methods of effecting an equitable distribution. Under the first option, Cassie
would occupy the homestead and would pay for its utilities and maintenance, and Darrin
would farm the property. Darrin would pay the contract-for-deed payments and farm-
operation expenses out of the gross profits of the farm, and would be permitted to draw a
stipend of $18,000 per year for working on the farm. The parties would divide any profit
from the farm after the other expenses and the stipend were deducted. This arrangement
would continue until the contract for deed was paid off in 2032, at which time either
party could buy out the other by “tendering one half of the full market price . . . as of the
date of the final payment.”
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Under the second option, Darrin would ne gotiate with Marvin Birr for consent to
obtain financing to prepay the contract for deed. If Darren chose this option, he was
required to complete all arrangements by May 1, 2016, or option one would
“automatically go into effect.” Darrin would pay Cassie $275,000 immediately, and the
balance of $544,896.19 over a period of ten years at five-percent interest. Cassie would
convey her interest to Darrin immediately upon the final payment of the contract for
deed.
Darrin moved for reconsideration of the di strict court’s order for judgment, but the
district court denied the motion. Darrin appealed to this court, which initially rejected the
appeal because no judgment had yet been entered. Judgment was entered on March 29,
2016, and Darrin filed this appeal.
On May 5, 2016, the district cour t held a hearing on Cassie’s motion for
immediate occupancy of the homestead, as Darrin failed to meet the May 1 deadline for
the second option. The district court also ordered Darrin to pay $2,979.50 for Cassie’s
attorney fees incurred for Darrin’s motion for reconsideration, and $500.00 relating to the
motion to permit Cassie’s immediate occupancy of the homestead.
D E C I S I O N
I.
The district court has br oad discretion to divide marital property, and we will
reverse its decision only for an abuse of discretion. Lee v. Lee, 775 N.W.2d 631, 637
(Minn. 2009). “Determining the specific value of an asset is a finding of fact. Such
findings of fact, when made without a jury, shall not be set aside unless clearly erroneous
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on the record as a whole.” Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn. 2001)
(quotations and citations omitted). The district court must make a “just and equitable
division of the marital property.” Minn. Stat. § 518.58, subd. 1 (2016). But a just and
equitable division need not be a strictly equal division of property. Sirek v. Sirek, 693
N.W.2d 896, 900 (Minn. App. 2005).
Stipulations are a favored means of simplifying dissolution litigation and are
treated as binding contracts. Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997). As with
any contract, if the language of the contract is clear and unambiguous, a reviewing court
construes it according to its plain meaning. Ertl v. Ertl, 871 N.W.2d 410, 415 (Minn.
App. 2015). “A writing is ambiguous if it is reasonably subject to more than one
interpretation. Whether a contract is ambiguous is a question of law reviewed de novo.”
Id. (citation omitted).
The parties stipulated that the property, identified as “155221 557th Avenue, Good
Thunder, MN 56037 with acreage (3 Parcels),” was marital in nature and that it “has a
value of $1,811,900.00 and is encumbered by contract for deed in the amount of
$172,107.62.” The parties also stipulated that “the values and encumbrances identified
below shall be used by the Court when determining the equitable division of assets and
debts.” Darrin argues that the property is not “precisely identif[ied],” and the value is not
certain, because “value” could mean the purchase price, the tax-assessed value, or the
net-equity value of either the tax-assessed value less the encumbrance or the contract
price less the encumbrance.
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Darrin’s alternative arguments are not su pported by the stipulation, which is not
ambiguous: it directs the court to use the agreed upon value of $1,811,900 as a basis for
an equitable distribution of property. Likewise, the description of the property is
sufficiently definite to provide a means of identifying the property. See Crown CoCo,
Inc. v. Red Fox Restaurant of Royalton, Inc., 409 N.W.2d 919, 921 (Minn. App. 1987)
(stating that a lease “must provide a reasonably certain means of identifying the demised
property”), review denied (Minn. Oct. 21, 1987).
Darrin also argues that the district court erred by treating the contract for deed as
“merely a technicality.” Darrin contends that the restrictive features of the contract for
deed limit the options the parties have and that those restrictions limit the value to the
contract-for-deed purchase price. But the district court’s first option, which grants
occupancy of the homestead to Cassie and permits Darrin to farm the property while
continuing to make payments on the contract for deed until the termination of the contract
in 2032, recognizes that the contract restrictions could block an earlier sale or
encumbrance of the property. The district court was aware of the contract restrictions
and attempted to structure an equitable settlement within the contract parameters.
Finally, Darrin argues that the proposed prop erty division is not just and equitable
because, under the first option, the district court ordered him to pay the contract for deed,
taxes, and insurance out of farm income proceeds, while permitting Cassie to reside in the
homestead without contributing to those payments and awarding her one-half of the value
upon payoff of the contract. Darrin asserts that this is unjust and against logic and facts
in the record. But according to the record, the parties have always made those payments
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out of farm income, Darren is permitted to deduct those expenses on his taxes, and option
one grants him a stipend of $18,000 before any farm profit is shared with Cassie. In
addition, Darrin’s child-support obligation is based solely on his non-farm income.
We will not set aside the district court’ s factual findings, which are supported by
record evidence, unless clearly erroneous. Maurer, 623 N.W.2d at 606. The district
court made an equitable and fair distribution in light of the nature of the parties’ marital
property and the issues presented by the restrictive clauses in the contract for deed and
did not abuse its discretion.
II.
Darrin argues that the district court abused its discretion by awarding Cassie
attorney fees for the hearings on Darrin’s motion for reconsideration and Cassie’s motion
to enforce the judgment and decree after Darrin failed to meet the deadlines under the
decree.
A court
shall award attorney fees, costs, and disbursements in an
amount necessary to enable a pa rty to carry on or contest the
proceeding, provided it finds:

(1) that the fees are n ecessary for the good faith
assertion of the party’s rights in the proceeding and will
not contribute unnecessarily to the length and expense
of the proceeding;

(2) that the party from whom fees, costs, and
disbursements are sought has the means to pay them;
and

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(3) that the party to whom fees, costs, and
disbursements are awarded does not have the means to
pay them.

Minn. Stat. § 518.14, subd. 1 (2016). A court may also, in its discretion, award conduct-
based fees. Id. But it appears that the district court made only an award of need-based
fees because the court’s discussion includes only the need-based factors set forth in the
statute.
Because the statute uses the word “shall,” need-based fees must be awarded if the
court makes the appropriate findings. See Minn. Stat. § 645.44, subd. 16 (2016) (stating
that “‘[s]hall’ is mandatory”). A district court must make findings that are sufficient to
permit appellate review. Hemmingsen v. Hemmingsen, 767 N.W.2d 711, 720 (Minn.
App. 2009), review granted (Minn. Sept. 29, 2009), and appeal dismissed (Minn. Feb. 1,
2010). And the court must make specific findings on the need-based factors. In re
Marriage of Richards, 472 N.W.2d 162, 166 (Minn. App. 1991). But
a lack of specific findings on the statutory factors for a need-
based fee award . . . is not fatal to an award where review of
the order reasonably implies that the district court considered
the relevant factors and where the district court was familiar
with the history of the case and had access to the parties’
financial records.

Geske v. Marcolina, 624 N.W.2d 813, 817 (Minn. App. 2001) (quotation omitted).
The district court found that Cassie did no t have the means to pay fees and costs,
relying on an affidavit that she submitted detailing her current financial situation. The
district court had just finished a hearing on the division of the parties’ marital property
and was well-versed concerning their finances. As to Darrin’s ability to pay, the district
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court found that he “has both a full time job and a farming operation. [Darrin] has full
access to all of the farming operation and its income which was not used toward the
calculation of child support. [Darrin] has the means to pay the fees, costs, and
disbursements.” The court also found that Cassie’s “response to [Darrin’s] motion [for
reconsideration] did not contribute to the length or expense of the proceeding.” Darrin,
not Cassie, moved for reconsideration of the district court’s initial order. Cassie moved
to enforce the judgment and decree because Darrin had failed to act within the deadlines
set forth in the judgment. These circumstances do not support a finding that Cassie
contributed to the length or expense of the proceedings.
These findings, while not lengthy, are more detailed than those in Hemmingsen, in
which this court remanded the attorney fees question to the district court for additional
findings. 767 N.W.2d at 720. In Geske, this court also remanded the question of the
award of attorney fees to the district court, when the district court failed to disclose the
basis for its findings. 624 N.W.2d at 819. Here, the district court explained that it relied
on Cassie’s affidavit, which explained her financial circumstances, and on its knowledge
of Darrin’s financial circumstances. The district court did not err by awarding need-
based attorney fees.
Affirmed.