In re the Marriage of: Matthew Durand Dornquast, petitioner, Appellant,

This opinion will be unpublished and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
A17-0108

In re the Marriage of: Matthew Durand Dornquast, petitioner,
Appellant,

vs.

Dianne Yanovick Dornquast, n/k/a Diana Yanovick Dornquast,
Respondent.

Filed March 5, 2018
Affirmed
Larkin, Judge

Hennepin County District Court
File No. 27-FA-13-7749

Ben M. Henschel, Susan A. Daudelin, Henschel Moberg Goff, P.A., Minneapolis,
Minnesota (for appellant)

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

Brian L. Sobol, McGrann Shea Carnival Straughn & Lamb, Chartered, Minneapolis,
Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Bratvold, Judge; and Florey,
Judge.
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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant-husband challenges the district court’s order requiring him to pay taxes
on the transfer of his ownership interest in a New York condominium to respondent-wife.
The transfer is required under the terms of the parties’ stipulate d mar ital-dissolution
judgment and decree. Husband argues that wife is required to pay the transfer taxes under
an indemnification provision in the judgment and decree. We affirm.
FACTS
Appellant-husband Matthew Durand Dornquast and respondent -wife Diana
Yanovick Dornquast were married in 2004. Their marriage was dissolved by a stipulated
judgment and decree in 2015. The judgment and decree awarded wife “all right, title and
interest in and to” the parties’ New York condominium, which was valued at $8,450,000.
The judgment and decree provided that “[husband] shall execute a quit claim deed
transferring to [wife] all right, title and interest in and to said condominium within ten days
of entry of the Judgment and Decree” and that “[wife’s] attorney shall be responsible for
preparing the quit claim deed.” It further provided that “[a]ll encumbrances against said
property shall be paid and satisfied by [wife] and she shall indemnify, defen d and hold
[husband] harmless from all liability in connection with the condominium, including, but
not limited to, the principal and interest monthly mortgage payments, real estate taxes,
insurance and utility charges.”
New York state law imposes a tax on “each conveyance of real property or interest
therein when the consideration exceeds five hundred dollars .” N.Y. Tax Law § 1402(a)
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(McKinney 2016). New York state law requires payment of that transfer tax by the grantor
prior to the recording of a conv eyance. N.Y. Tax Law §§ 1404(a), 1410(b) (McKinney
2016). If the consideration for the real property exceeds $25,000, New York City imposes
its own transfer tax on the deed at the time of delivery. N.Y.C. Admin. Code § 11-2102(a)
(2017). New York City law requires payment of its transfer tax by the grantor. N.Y.C.
Admin. Code § 11-2104 (2017). Depending on certain residency requirements, a grantor
may also be subject to estimated New York state incom e tax at the time of transfer. See
N.Y. Tax Law § 663 (McKinney 2016).
In September 2016, wife moved the district court to order husband to (1) sign a quit-
claim deed and other documents necessary to transfer title of the New York condominium
to wife, (2) determine whether he must pay New York state income tax stemming from the
transfer, (3) pay New York state and New York City taxes on the transfer of his interest in
the condominium, and (4) pay conduct -based attorney fees. Husband moved the district
court to order wife to pay any taxes stemming from the transfer, arguing that wife is solely
responsible for the taxes under the indemnification provision in the judgment and decree.
Husband also moved for conduct-based attorney fees.
The district court held a hearing on the motions . H usband and wife m ade legal
arguments regarding liability for the transfer taxes under the stipulated judgment and
decree, but they did not present extrinsic evidence regarding the parties’ relevant intent at
the time of the stipulation. The district court ordered husband to sign a quit-claim deed for
the condominium, as well as other documents related to the transfer, to pay any New York
state and city transfer taxes, and to pay any estimated New York state income tax stemming
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from the transfer. The district court denied the parties’ motions for attorney fees. Husband
appeals.
D E C I S I O N
Husband contends that the district court’s order constitutes “an impermissible
modification of a final property settlement” because it is inconsistent with the
indemnification provision in the judgment and decree, which establishes wife’s “liability
in connection with the condominium.”
A district court “may not modify a division of property after the original judgment
has been entered and the time for appeal has expired.” Erickson v. Erickson, 452 N.W.2d
253, 255 (Minn. App. 1990). However, a district court “may issue appropriate orders
implementing or enforcing the provisions of a dissolution decree” and “clarify and construe
a divorce judgment so long as it does not change the parties’ substantive rights.” Potter v.
Potter, 471 N.W.2d 113, 114 (Minn. App. 1991).
When the terms in a stipulated dissolution judgment and decree are unambiguous,
this court must give them their plain and ordinary meaning. See Starr v. Starr, 312 Minn.
561, 562 -63, 251 N.W.2d 341, 342 (1977) (applying general rule for construction of
contracts to dissolution). A stipulated judgment and decree is ambiguous if “judged by its
language alone and without resort to parol evidence, it is reasonably susceptib le of more
than one meaning.” Landwehr v. Landwehr , 380 N.W.2d 136, 138 (Minn. App. 1985).
“[T]he court must consider the stipulation as a whole to determine whether an ambiguity
exists.” Blonigen v. Blonigen , 621 N.W.2d 276, 281 (Minn. App. 2001), review denied
(Minn. Mar. 13, 2001).
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When a stipulated judgment and decree is ambiguous, its interpretation is a question
of law subject to de novo review; “we do not defer to the district court’s interpretation of a
stipulated provision in a dissolution decree.” Ertl v. Ertl , 871 N.W.2d 410, 414 (Minn.
App. 2015); see also Grachek v. Grachek, 750 N.W.2d 328, 331 (Minn. App. 2008) (“[T]he
interpretation of . . . stipulations in dissolution judgments [is a] question[] of law, which
we review de novo.”), review denied (Minn. Aug. 19, 2008) ; Anderson v. Archer , 510
N.W.2d 1, 3 (Minn. App. 1993) ( “Because the interpretation of a written document is a
question of l aw, we do not defer to the district court’ s interpretation of a stipulated
provision in a dissolution decree. ”). Whether a judgment and decree is ambiguous is a
question of law reviewed de novo. Ertl, 871 N.W.2d at 415.
This court generally construes stipulations using the ordinary rules of contract
interpretation. Grachek, 750 N.W.2d at 333. “The primary goal of contract interpretation
is to determine and enforce the inten t of the contracting parties.” Dorsey & Whitney LLP
v. Grossman, 749 N.W.2d 409, 418 (Minn. App. 2008).
The indemnification provision provides: “All encumbrances against said property
shall be paid and satisfied by [wife] and she shall indemnify, defend and hold [husband]
harmless from all liability in connection with the condominium, including, but not limited
to, the principal and interest monthly mortgage payments, real estate taxes , insurance and
utility charges .” On one hand, the parties assert that the language of the provision is
unambiguous. On the other hand, the parties pr opose two different interpretations of that
language. Husband argues that the provision applies to the transfer taxes because the
language is broad and “[t]here is no provision in the decree that suggests that the part ies
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intended to exclude the payment of taxes associated with the transfer of title to Wife from
the condominium expenses that Wife was required to pay and from which she was required
to indemnify Husband.” Wife counters, in part, that the provision does not apply to transfer
taxes because they are not the type of expense listed as examples in the indemnification
provision.
Judged by its language alone, the indemnification provision is reasonably
susceptible to more than one meaning. The provision’s broad language, particularly the
phrase “all liability in connection with the condominium,” reasonably suggests that it
applies to any liability related to the condominium. However, the specific types of
liabilities listed as examples are expenses related to ongoing ownership of the property.
The list of examples is therefore reasonably read as limiting “ all liability in connection
with the condominium” to such expenses. Because the indemnification provision is
reasonably susceptible to more than one meaning , we conclude that it is ambiguous and
interpret it de novo.
In interpreting the provision, we attempt to determine the parties’ intent when they
stipulated that wife would indemnify husband “from all liability in connection with the
condominium.” Becaus e the parties did not offer extrinsic evidence to aid in the court’s
resolution of this issue, our determination is limited to the language of the judgment an d
decree. Anderson, 510 N.W.2d at 4 (“If a writing is ambiguous, extrinsic evidence may be
admitted to resolve the ambiguity. When extrinsic evidence is admitted, the meaning of
ambiguous language is a question of fact.” (citation omitted)).
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We are guided by the general principles of ejusdem generis and noscitur a sociis .
See Emp’rs Liab. Assurance Corp. v. Morse , 261 Minn. 259, 26 4-65, 111 N.W.2d 620,
624-25 (1961) (applying ejusdem generis principle in construing ambiguous contract);
Mienes v. Lucker Sales Co. , 188 Minn. 162, 165, 246 N.W.2d 667, 668 (1933) (applying
noscitur a sociis principle in construing contract); Brookdale Pontiac-GMC v. Federated
Ins., 630 N.W.2d 5, 10 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001) (“In
interpreting contracts, we apply the principle of ejusdem generis . . . .”). Under the
principle of ejusdem generis, the general wording of a provision “must be interpreted to
include only matters of the same kind or class as those specifically enumerated.” In re
Custody of A.L.R., 830 N.W.2d 163, 170-71 (Minn. App. 2013) (quotation omitted). Under
the principle of noscitur a sociis, “a word is given more precise content by the neighboring
words with which it is associated.” County of Dakota v. Cameron , 839 N.W.2d 700, 709
(Minn. 2013) (quotation omitted).
Although the indemnification provision refers to “all liability in connection with the
condominium,” it includes a nonexclusive list of example s of expenses that are subject to
the provision. If the parties had intended wife to indemnify husband for every liability in
any way related to the condominium, it would have been unnecessary to include examples
in the provision. But the parties chose to list examples. A nd a lthough the list is
nonexclusive, all of the examples —“principal and interest monthly mortgage payments,
real estate taxes, insurance and u tility charges ”—are costs associated with ongoing
ownership of property. The parties’ inclusion of that list strongly suggests that the parties
intended to limit wife’s indemnification obligation to expenses related to ongoing
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ownership. We therefore con clude that the list limits the expenses that are subject to
indemnification in that manner.
The liabilities at issue here—taxes imposed on husband based on his transfer of his
ownership interest in the condominium —are not the type of expense s described in the
indemnification provision. Indeed, they are not costs associated with ongoing ownership
of the condominium. Instead, they are expenses incurred to transfer husband’s ownership
interest in the condominium. The expenses therefore are not subject to the indemnification
provision in the parties’ stipulated judgment and decree.
In sum, because the language in the indemnification provision is ambiguous and the
parties did not offer extrinsic evidence to establish the parties’ intent , we interpret the
provision de novo. B ased on the list of examples in the provision, we conclude that the
parties intended to limit wife’s indemnification obligation to expenses related to ongoing
ownership of the condominium. Because husband’s tax obligations stem from the transfer
of his ownership interest, they are not subject to the indemnification provision. We
therefore affirm the district court’s order requiring husband to transfer title to the
condominium to wife under the terms of the stipulated judgment and decree and to pay any
taxes assessed against him that are necessary to effectuate the transfer.
Affirmed.