In re the Marriage of:

This opinion will be unpublished and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
A17-1042

In re the Marriage of:

Jill Kathleen Janssen, petitioner,
Appellant,

vs.

Kevin Eric Janssen,
Respondent.

Filed April 2, 2018
Affirmed
Reilly, Judge

Dakota County District Court
File No. 19AV-FA-15-3118

John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., St. Paul, Minnesota (for appellant)

Bridget R. Landry, Cordell & Cordell, P.C., Edina, Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges the district court’s gr ant of an evidentiary hearing on whether
to reopen the parties’ disso lution judgment. Appellant also challenges the grant of
respondent’s request to attach appellant’s assets, the sufficiency of the bond securing that

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attachment, and the requirement that certain questions be submitted to binding arbitration.
Because the district court’s findings are suppor ted by the record, and because the district
court did not misapply the law or otherwise abuse its discretion, we affirm.
FACTS
In February 2015, an order for protecti on excluded respondent Kevin Janssen from
the home he shared with his then wife, appellant Jill Kathleen Janssen. The January 2017
judgment dissolving the parties’ marriage awarded respondent the home but let appellant
live there until respondent paid appellant $115,585 for her interest in the home. The
judgment also awarded appellant $1,500 in permanent monthly maintenance. Later,
respondent paid appellant for her interest in the home, appellant quitclaimed her interest in
the home to respondent, and the order for protection was amended so respondent could
take possession of the home.
Respondent claims that when he reentered the home, he found it severely damaged.
A police officer who was present when resp ondent entered the home, reported that the
home was “trashed.” An appraiser later conc luded that the damage to the home reduced
its value by $112,000, from $350,000 to $238,000. Appellant denied damaging the home.
Alleging that appellant intentionally da maged, or allowed others to damage, the
home, and that it was not equitable to enforce the dissolution judgment, respondent moved
the district court, under Minn. Stat. § 518.145, subd. 2(5) (2016), to reopen and amend the
judgment to reflect the home’s reduced value. Alternativ ely, respondent sought an
evidentiary hearing to determine whether appellant was responsible for the damage to the
home. Respondent also requested that appe llant’s remaining prope rty be attached as

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security for a possible judgment against her, and asked the district court to enforce certain
stipulated orders from Octobe r and November 2016 requiring appellant to return certain
items of personal property that he believed she took from the home when she moved out.
The district court reserved the question of whether to reopen the judgment pending
an evidentiary hearing on the i ssue, allowed respondent to attach $112,000 of appellant’s
property, and required respondent to post a $ 500 attachment bond w ith the court. The
district court also declined to enforce the stipul ated orders from Oc tober and November
2016, instead directing the parties to arbitrate their personal-property disputes.
This appeal followed.
D E C I S I O N
I. The district court did not abuse its di scretion by granting an evidentiary
hearing.

Appellant challenges the district court’s decision to hold an evidentiary hearing on
whether to reopen the dissolution judgment. W ith exceptions not relevant here, family-
court motions are decided without evidentiary hearings, unless the district court determines
there is good cause for a hearing. See Thompson v. Thompson , 739 N.W.2d 424, 430
(Minn. App. 2007) (citing Minn . R. Gen. Pract. 303.03(d); Doering v. Doering, 629
N.W.2d 124, 130 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001)). While “[t]he
definition of ‘good cause’ has yet to be articulated[,]” a district court’s decision on whether
to hold an evidentiary hearing on a family-court motion is reviewed “for an abuse of
discretion.” Id. (citations omitted).

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Respondent sought to reopen the judgment under Minn. Stat. § 518.145, subd. 2(5),
which allows a district court to relieve a party from a dissolution judgment if it is “no longer
equitable” that the judgment “should have pr ospective application. ” Subdivision 2(5)
applies “when injustice in the prospective application of a divorce decree is due to the
development of circumstances substantially a ltering the information on a topic that was
accepted earlier, when the subj ect was addressed in a marita l-termination agreement and
in an ensuing judgment.” Harding v. Harding, 620 N.W.2d 920, 924 (Minn. App. 2001),
review denied (Minn. Apr. 17, 2001).
When analyzing whether good cause exists to hold an evidentiary hearing regarding
possible relief under Minn. Stat . § 518.145 subd. 2(5), a district court considers whether,
when viewing the evidence in the light most favorable to the nonmoving party, genuine
issues of material fact exist, and whether a party is entitled to a ruling as a matter of law.
Thompson, 739 N.W.2d at 430. Here, the district court ruled that “[t]here is a dispute as to
who damaged the property and when such damage occurred.” On this record, the district
court is correct: The current record contains conflicting evidence regarding who damaged
the home and when that damage occurred. The answers to these questions may bear on
whether relief is available under Minn. Stat . § 518.145 subd. 2(5) ; i.e., whether, per
Harding, prospective application of the judgment would be unjust because of “the
development of circumstances substantially a ltering the information on [the value of the

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home] that was accepted [when the judgmen t was entered.]” 620 N.W.2d at 924. 1 Thus,
the district court did not abuse its discretion by ordering an evidentiary hearing.
Appellant argues that Thompson limits application of Minn. Stat. § 518.145, subd.
2(5), to circumstances beyond the parties’ control. We do not read Thompson so narrowly.
First, Thompson states that the district court should have considered whether the alleged
inequity in the prospective application of that judgment arose “as a result of the
development of circumstances beyond the pa rties’ control[.]” 739 N.W.2d at 431. To
support this statement, Thompson cites Harding. Id. at 430 (citing Harding, 620 N.W.2d
at 924). And that part of Harding states that Minn. Stat. § 518.145, subd. 2(5), “ must be
employed when injustice in the prospective application of a divorce decree is due to the
development of circumstances substantially a ltering the information on a topic that was
accepted earlier[.]” 620 N.W.2d at 924 (empha sis added). That Minn. Stat. § 518.145,
subd. 2(5), “must be employed” in some circumstances does not automatically preclude it
from being employed in other circumstances.
Second, Thompson involved a dissolu tion in which the husband declined to
participate in the proceedings but later challenged the resulting judgment. 739 N.W.2d at

1 Who damaged the home and when the damage occurred may also bear on whether relief
is available under authorities other than Minn. Stat. § 518.145, subd. 5(2). See, e.g., Minn.
Stat. § 518.58, subd. 1 (2016) (stating that “[i]f there is a substantial change in value of an
asset between the date of valuation and the final distribution, the court may adjust the
valuation of that asset as necessary to effe ct an equitable distribution”); Minn. Stat.
§ 518.58, subd. 1a (2016) (noting that each party, during the pendency of a dissolution or
in contemplation of a dissolution proceeding, “o wes a fiduciary duty to the other for . . .
any use by the party of the mar ital assets[,]” and that if the district court finds that this
fiduciary duty has been violated, it “shall compensate the other party. . .”).

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427. That district court dec lined to reopen the judgment, no ting that the only change in
circumstances was the husband’s (i.e., the moving party’s) willingness to participate in the
proceedings, a circumstance within his control at the time of the original proceedings. Id.
at 431. Here, respondent is seeking relief, and appellant is the one who was allegedly in
control of the changed circum stance—the condition of the hom e. On this record, we
decline to rule that appellant, (the nonmoving party and the one who is alleged to have
caused the damage), may benefit from the Thompson standard.
II. The district court did not err by allowi ng respondent to attach appellant’s
assets.

Appellant challenges the district court’s de cision to let respondent attach appellant’s
assets. Attachment may be granted if the moving party shows a probability of success on
the merits, and the existence of at least one of the statutory grounds for attachment. See
Minn. Stat. § 570.02 6, subd. 3 (2016); see also Minn. Stat. § 570.02 (2016) (outlining
statutory criteria for attachment). Appellate c ourts will affirm an a ttachment order if the
district court’s findings “adequately explain the basis for its conclusions and are supported
by sufficient competent evidence in the record.” Coleman v. Mertes, 408 N.W.2d 662, 666
(Minn. App. 1987). Here, the district court c ited the statutory ground for attachment that
appellant “has assigned, secreted, or disposed of, or is about to assign, secrete, or dispose
of, any of [appellant’s] nonexemp t property, with intent to delay or defraud [appellant’s]
creditors[.]” Minn. Stat. § 570.02, subd. 1(1).

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a. Success on the Merits
Appellant does not contest the district court’s finding that respondent showed a
probability of success on the merits. Therefore we do not address this point beyond noting
that (1) the district court’s determination is supported by competent evidence in this record;
and (2) our ruling that the record supports the district court’s determination on this point is
not an expression of opinion on the actual merits of respondent’s claim.
b. Disposing of Property with Intent to Delay or Defraud
An attachment may be granted if the no nmoving party “has as signed, secreted, or
disposed of, or is about to assign, secrete, or dispose of, any of [t hat party’s] nonexempt
property, with intent to delay or defraud [that party’s] cred itors.” Minn. Stat. § 570.02,
subd. 1(1). Here, appellant argues that respondent neither alleged fraud nor made the prima
facie showing of fraud required by the statute. We disagree.
The district court found that appellant had disposed of, and was about to dispose of,
her nonexempt property in an attempt to render herself judgment-proof, noting that, in just
three weeks, appellant had spent $289,00 0 of the $364,244 she received under the
dissolution judgment. Appellant claimed she needed to spend a large portion of this money
on a house. While it is undisputed that appellant must live somewhere, appellant failed to
prove, document, or otherwise support her assertion that almost 80% of her funds had to
be used to procure an asset that might be (at least partially) exempt from collection efforts.
Further, appellant has no other funds to sa tisfy a possible judgmen t against her. The
swiftness with which appellant spent her funds after learning of respondent’s claim, the
lack of documentary or other support for the necessity of the extent of the spending, and

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the absence of any other assets with which to pay a potential judg ment all support the
district court’s attachment order. The district court’s inference that appellant’s behavior
indicated an intent to frustrate possible collection efforts can be supported by this record.
Therefore, the district court’s finding is not clearly erroneous.
Citing Minn. Stat. § 550.37 (2016), appellant argues that the property attached by
the district court is exempt from attachment as proceeds of a home. But that statute does
not exempt the proceeds of a home from attachment. Moreover, if respondent shows that
appellant is responsible for the damage to the home, it is unclear whether the funds he paid
for the damaged portion of the home would actually be proceeds of the home.
Appellant next argues that property attach ed by the district court is exempt because
it is needed for pension or retirement purposes. While Minn. Stat. § 550.37 exempts certain
employee benefits from attachment , the district court found that appellant failed to show
that the attached funds were, in fact, used to fund a pension or retirement account, and
failed to show that the funds would be needed in the future to meet appellant’s needs after
she retires. Indeed, the record shows that appellant withdrew $200,000 from a retirement
account she received in the di ssolution, which suggests that she was actively converting
assets from retirement funds to liquid asse ts. Appellant provided no documentation
showing that this money was used for pe nsion or retirement purposes after it was
withdrawn. On this record, the district court’s finding is not clearly erroneous.
Appellant also argues that there was no exemption notice provided as required by
Minn. Stat. § 570.02. That provision, howe ver, does not require an exemption notice.
Appellant further argues that attachment does not occur until after the sheriff executes the

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attachment, and that the district court erred by hearing arguments on attachment before the
sheriff executed the attachment order. We find this argument unclear. If appellant is
arguing that, at the April 6, 2017 hearing, sh e was unprepared to address the question of
exemptions from attachment because she did not receive notice that the court would
consider exemptions at this hearing, we reje ct her argument. The record shows that, no
later than February 3, 2017, appellant was on notice that re spondent was seeking
attachment. It also shows that the district court provided her with specific notice of the
attachment issues. Despite this notice, appellant did not offer adequate evidence to support
her claimed exemptions at either the February 6th or the April 6th hearing. On this record,
appellant had notice of, and was given an oppo rtunity to address, the exemption question
but failed to make a convincing argument on the point. Thus, appellant has not shown that
she is entitled to relief from the district court’s attachment of her assets.
III. The district court did not abuse its discretion by setting respondent’s
attachment bond at $500.

Noting that the district court allowed resp ondent to attach $112,000 of appellant’s
property, appellant challenges the adequacy of the $500 attachment bond set by the district
court. Before allowing attachment, the distri ct court “shall require the claimant to post a
bond in the penal sum of at least $500[.]” Minn. Stat. § 570.041, subd. 1 (2016). When
setting the amount of the bond, the district court “shall consider the value and nature of the
property attached, the method of retention or storage of the property, the potential harm to
the [party owning the attached property] or any party, and other factors that the court deems
appropriate.” Id. A district court’s decision to set a pretrial bond is reviewed for an abuse

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of discretion. See Webb Golden Valley, LLC v. State, 865 N.W.2d 689, 694 (Minn. 2015)
(surety bond); Carlson v. Mixell , 412 N.W.2d 771, 773 (Min n. App. 1987) (injunction
bond); Howe v. Howe, 384 N.W.2d 541, 546 (Minn. App. 1986) (court’s waiver of a bond).
Here, the district court considered the b ond amount necessary to protect appellant’s
interests, the harm to appellant of attachme nt, and the risk of harm to respondent if
attachment is denied. In setting the amount of the bond, the district court found that
appellant received $350,000 under the dissolution judg ment, provided no documentation
of her (alleged) expenditure of $250,000 on a new house, and is deemed capable of working
full time but works only part time earning $11 per hour. The district court also noted that
the dissolution judgment awards appellant permanent maintenance of $1,500 per month
but that, as of June 2017, respondent was already two months in arrears on those payments.
The district court further considered the $112,000 amount of the attachment, that
respondent suffered a significant loss to his primary asset (the home) which he attests he is
financially unable to rehabilitate, and that, given appellant’s finances, there is a substantial
risk that respondent may never recover that loss.
Appellant asserts that a $500 bond will not protect her interests but she cites no
authority to support this assertion. See Dep’t of Labor & Indus. v. Wintz Parcel Drivers,
Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declin ing to address an in adequately briefed
issue); Brodsky v. Brodsky, 733 N.W.2d 471, 479 (Minn. App. 2007) (applying Wintz in a
family-law appeal). Appellant claims the $500 bond is insufficient to cover her filing fees,
but the record shows that her filing fees to tal only $315. Appellant also claims the bond
will not cover the loss of use of the money fo r the duration of the attachment but cites no

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record evidence addressing how she would use the funds if they were available. Appellant
refers to what she asserts is a six percent statutory interest rate but does not cite the statute
setting that rate. Appellant then claims th at respondent’s unpaid spousal maintenance
supports her claim that $500 is an insufficient bond. But on this record respondent’s
inability to pay maintenance could suggest that it would be improper to require him to post
a larger bond.
On this record, the district court considered the value of the attachment, the nature
of that property, and the possi bility for hardship to both parties. Further, appellant’s
arguments challenging the amount of the bond are unsupported legally or factually or both.
Therefore, appellant has not shown that the district court abused its discretion by setting a
$500 attachment bond.
IV. The district court did not err by ordering the parties to binding arbitration.
Appellant challenges the district court’s re ferral of the parties’ disputes regarding
personal property to arbitration. She argues that prejudgment stipulations should have been
enforced, and that the parties did not agree to postjudgment arbitration of property disputes.
Appellate courts review de novo a district court’s decision regarding whether a question is
subject to arbitration. Indep. Sch. Dist. No. 88 v. Sc h. Serv. Emps. Union Local 284 , 503
N.W.2d 104, 106 (Minn. 1993).
In October 2016, while the dissolution wa s pending in district court, the parties
submitted a stipulation to the district court un der which they would divide certain marital
personal property in binding arbitration. In th e resulting arbitration, the parties resolved
some of their property disputes. Then, in November, the parties submitted another

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stipulation to the district court in which th ey agreed to a division of marital personal
property, and that they would forego further ar bitration. The dissolution judgment states
that “[e]xcept as set forth herein, the parties shall submit the issue of division of personal
property to binding arbitration with [the arbitrator] to make a final decision concerning the
distribution of the personal property.” In other words, the dissolution judgment
incorporated neither of the parties’ stipulations, the order directing the parties to arbitration
notes that neither party’s posttrial motions sought to amend the judgment, and that
judgment is now final because th e time to appeal has expired. See Johnson v. Johnson ,
902 N.W.2d 79, 83 (Minn. App. 2017) (noting that “[o]nce the time to appeal a decision of
the district court expires, that ruling is fina l, even if it is wrong”) (citations omitted).
Because the stipulations were not incor porated by the judg ment, they became
unenforceable upon entry of the judgment. See Trutnau v. Trutnau, 221 Minn. 462, 464,
22 N.W.2d 321, 322 (1946). As a result, the operative language is that which is in the
judgment, and that language directs the parties to arbitration. Therefore, we conclude that
the district court did not err by directing th e parties’ personal-property disputes to
arbitration.
Affirmed.