In re the Marriage of: Thomas M. Dillahunt, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1651

In re the Marriage of: Thomas M. Dillahunt, petitioner,
Respondent,

vs.

Tami L. Mitchell, f/k/a Tami L. Dillahunt,
Appellant.

Filed June 24, 2019
Affirmed; motion denied
Klaphake, Judge*

Hennepin County District Court
File No. 27-FA-06-4968

Kathleen E. Rusler O’Connor, O’Connor Law and Mediation PLLC, Burnsville, Minnesota
(for respondent)

Chris Zewiske, Ormond & Zewiske, Minneapolis, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Bratvold, Judge; and Klaphake,
Judge.

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

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U N P U B L I S H E D O P I N I O N
KLAPHAKE, Judge
Appellant Tami L . Mitchell, f/k/a Tami L. Dillahunt , filed this appeal from the
district court’s division of marital property following the dissolution of her marriage to
respondent Thomas M. Dillahunt. She argues that the district court erred in its division of
her military retired pay and in denying her request for attorney fees. Because t he district
court’s findings of fact were not clearly erroneous and because it did not otherwise abuse
its discretion in dividing the military retired pay and in denying Mitchell’s request for
attorney fees, we affirm. We also deny Dillahunt’s motion to s trike or, in the alternative,
for permission to file a surreply brief.
D E C I S I O N
I.
Mitchell advances several arguments challenging the district court’s division of her
military retired pay. She argues that the district court erroneously included the nonmarital
portion of her retired pay in the property division, applied the wrong valuation date, failed
to use the correct formula when determining the amount of the parties’ share of the retired
pay, and failed to address her alternative formula proposal.
The district court has “broad discretion regarding the division of property ,” and its
division of property “will only be reversed on appeal if the [district] court abused its
discretion.” Lee v. Lee , 775 N.W.2d 631, 637 (Minn. 2009). A district cour t abuses its
discretion in dividing property if it resolves the matter in a manner “that is against logic
and the facts on record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Division of

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retired pay is generally discretionary with the district cou rt. Faus v. Faus , 319 N.W.2d
408, 413 (Minn. 1982). “Appellate [courts] set aside a district court’s findings of fact only
if clearly erroneous, giving deference to the district court’s opportunity to evaluate witness
credibility. Findings of fact are clearly erroneous where an appellate court is left with the
definite and firm conviction that a mistake has been made.” Goldman v. Greenwood, 748
N.W.2d 279, 284 (Minn. 2008) (quotations and citations omitted).
Military personnel who serve for a set number of years may retire with pay. See 10
U.S.C.A. §§ 3911-14, 3929 (2012) (Army officers and enlisted members). The amount of
retired pay is determined by the number of years served and the rank at which the member
retires. See 10 U.S.C.A. §§ 1409, 3961 (2012) (Army). Federal statutes carve out a portion
of a veteran’s retired pay that may be treated as marital property and is divisible between
spouses in a dissolution, providing that state courts “may treat disposable retired pay” as
marital property. 1 0 U.S.C. § 1408(c)(1) (2012). The term “disposable retired pay”
includes gross retired pay minus certain deductions. 10 U.S.C. § 1408(a)(4)(A) (2012).
The district court used the coverture formula found in Janssen v. Janssen , 331
N.W.2d 752, 756 (Minn. 1983), to divide Mitchell’s retired pay. In Janssen, the supreme
court held that “a nonvested, unmatured pension [like the one at issue in this appeal] is
marital property which can be divided in a marital dissolution proceedi ng.” 331 N.W.2d
at 753, 756. To calculate the marital portion of such retired pay, the supreme court adopted
an approach that awards each spouse a percentage of the retired pay “only if and when” the
benefits are paid. Id. at 756. The supreme court held that the marital portion of a benefits
payment “will be a fraction of that payment, the numerator of the fraction being the number

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of years (or months) of marriage during which benefits were being accumulated, the
denominator being the total number of ye ars (or months) during which benefits were
accumulated prior to when paid.” Id. (quotation omitted).
In this case, the parties were married in 1997 , and dissolved the marriage in 2008.
The parties entered into a Stipulation and Order Regarding Property Issues and agreed that
Dillahunt should be awarded “one -half of the marital portion” of Mitchell’s retired pay,
but did not agree on how to determine the value of the marital portion . The district court
concluded that the valuation date for the pension was the date of the Initial Case
Management Conference, August 24, 2006, and applied the Janssen formula to Mitchell’s
retired pay as follows:
To be sure, the parties were married from August 1997
to March 2008. That is 127 months. But, to determine the
number of months of marriage accumulating the pension, the
Court should use the valuation date—in August 2006—instead
of the date of dissolution. So, the numerator of the Janssen
formula is 108 months. The total number of months during
which the benefits were accumulated prior to when paid is 240
months—or twenty years. [Mitchell] served in the U.S. Army
for twenty years before retiring. So, the marital interest in the
military pension is 108 over 240 or 45%. Under the Stipulated
Order, [Dillahunt] is enti tled to half of the marital interest of
the military pension. Accordingly, [Dillahunt] is entitled to
22.5% of the military pension.

The district court then applied Dillahunt’s 22.5% share to Mitchell’s monthly retired pay
of $3,696 and awarded him $831.60 per month.
Mitchell argues that, instead of applying the Janssen formula, the district court
should have applied the “hypothetical retired pay” formula. The “hypothetical retired pay”
formula that Mitchell proffers is identical to the Janssen formula except that, rather than

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using the value of the benefits when they are paid, it uses a hypothetical value calculated
at some date prior to when the benefits are paid. Mitchell argues that the value of the
pension should be that calculated as of the Initial Case Management Conference held on
August 24, 2006, with a cost of living adjustment. Applying the “hypothetical retired pay”
formula, Mitchell calculates Dillahunt’s share of the retired pay at $317.90 per month,
based on a value of $1,412.90 as of August 24, 2006.
In support of this argument, Mitchell cites an unpubli shed opinion from this court.
That opinion is factually distinguishable from this case because the original judgment there
included a non -Janssen formula for dividing military pension benefits, and that formula
was never challenged. Guggisberg v. Guggisberg , No. A10 -0562, 2011 WL 891026, at
*1-5 (Minn. App. Mar. 15, 2011), review denied (Minn. May 25, 2011). No such formula
is found in the judgment at issue here. Further, not only is the method for dividing military
retirement pay espoused by Mitchell found only in that unpublished opinion, unpublished
opinions are not precedential. Minn. Stat. § 480A.08, subd. 3 (2018); see Dynamic Air,
Inc. v. Bloch, 502 N.W.2d 796, 800 -01 (Minn. App. 1993) (stating that “unpublished
opinions are not precedential” and at best “can be of persuasive value”).
Moreover, the relevant federal statute was amended after the unpublished opinion
was filed . National Defe nse Authorization Act of 2018, Pub. L. No. 115 -91, Title VI,
§ 624, 131 Stat. 1283, 1429-30 (2017). The amended statute states that it “shall apply with
respect to any division of property as part of a final decree of divorce, dissolution,
annulment, or legal separation . . . that becomes final after December 23, 2016.” § 624(c),
131 Stat. at 1430. Thus, if the parties’ dissolution was final in 2008, the 2017 amendment

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to the statute would not apply. Here, however, while the dissolution was final in 2008, the
division of the marital property was not finalized until 2018.
Finally, we note that the district court carefully reviewed both proposed formulas
before deciding to apply the Janssen formula, and Mitchell has not established that any of
the district court’s underlying findings of fact were clearly erroneous or that the district
court otherwise abused its discretion in its division of the retired pay.
II.
Mitchell contends that “[t]he District Court erred in denying [her] request for
attorney fees based on [Dillahunt’s] conduct and the parties’ agreement.”1
“A refusal to award attorney fees will not be reversed absent a clear abuse of
discretion.” Kitchar v. Kitchar, 553 N.W.2d 97, 104 (Minn. App. 1996), review denied
(Minn. Oct. 29, 1996). Conduct-based attorney fees may be imposed “against a party who
unreasonably contributes to the length or expense of the proceeding.” Minn. Stat. § 518.14,
subd. 1 (2018). Conduct-based fees may be based on the impact that a party’s behavior
has had on the cost s of the litigation regardless of the relative financial resources of the
parties. Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991). “While bad
faith could unnecessarily increase the length or expense of a proceeding, it is not required

1 Minn. Stat. § 518.14, subd. 1 (2018), provides for the awarding of attorney fees that are
“necessary to enable a party to carry on or contest the proceeding.” Neither party has
questioned whether section 518.14 also provides a substantive basis for an award of
conduct-based attorney fees. See Anderson v. Anderson , No. A16 -2006, (Minn. Aug. 6,
2018) (order) (questioning whether section 518.14 creates a substantive basis for an award
of conduct -based attorney fees). For purposes of this appeal, we will assume without
deciding that the statute does so.

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for an award of conduct-based attorney fees under Minn. Stat. § 518.14, subd. 1.” Geske
v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001). The requesting party bears the
burden of establishing that the other party’s conduct unreasonably contributed to the length
or expense of the proceeding. Id. at 818.
In the Stipulation and Order Regarding Property Issues that followed the
dissolution of the marriage, the parties agreed that “[i]n the event either party renders it
necessary for the other party to seek enforcement of any of the provisions herein, the party
who failed to comply with the terms of the Judgment and Decree shall be responsible for
all reasonable attorney’s fees and costs the other party incurred.”
Mitchell requested that the district court award her conduct-based attorney fees for
expenses she incurred due to Dillahunt’s failure to pay two prior judgments, including a
prior award of conduct-based attorney fees, and his “bad-faith litigation regarding division
of [her] military retirement pay.”
The district court denied Mitchell’s request, determining that Dillahunt “did not
unreasonably contribute to the length or expense of the proceedings.” The district court
acknowledged that Dillahunt “did not diligently submit an Order Dividing [Mitchell’s]
Military Pay to the Court,” but determined that this lack of diligence did not unreasonably
extend the proceedings because the parties’ 2008 stipulat ed judgment regarding property
“would not have permitted [Dillahunt] to submit an order [dividing the military pension]
without [Mitchell’s] agreement, and the parties’ position on the military pension [w as] so
divisive.” The district court concluded that Mitchell’s allegations of “bad-faith litigation”

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represented “reasonable disagreements between acrimonious parties durin g civil
litigation.”
The district court was familiar with the parties and their continuing conflict and was
in the best position to ev aluate whether Dillahunt’s conduct unreasonably contributed to
the time and expense of the proceeding. See 650 N. Main Ass’n v. Frauenshuh, Inc. , 885
N.W.2d 478, 494 (Minn. App. 2016) (“Because the district court is the most familiar with
all aspects of t he action from its inception through post trial motions, it is in the best
position to evaluate the reasonableness of requested attorney fees.” (quotation omitted)),
review denied (Minn. Nov. 23, 2016). The district court made adequate findings and
concluded that, although Dillahunt could have been more diligent in bringing his motion
to divide the military retired pay, the parties’ opposing positions and need to agree before
submitting such a motion excused his delay.
Moreover, Mitchell has not established that the attorney-fees provision of the 2008
Stipulation and Order Regarding Property Issues applies. Because Dillahunt brought the
motion to divide the military retired pay, he would be the party seeking enforcement of that
provision and would not be r equired to pay attorney fees under the terms of the property
stipulation. To the extent that Mitchell is seeking to enforce the prior judgments requiring
that Dillahunt pay attorney fees, that action is not covered by the stipulation, which applies
to costs incurred in enforcing the terms of that judgment and decree, and not s ubsequent
judgments. In sum, the district court’s denial of attorney fees was within its discretion.
Mitchell also requests that this court award her “attorney fees and costs incurr ed in
this appeal.” “A party seeking attorneys’ fees on appeal shall submit such a request by

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motion under Rule 127.” Minn. R. Civ. App. P. 139.06, subd. 1. We deny Mitchell’s
current request because she did not file a Rule 127 motion and her request is therefore not
properly before this court.
III.
Dillahunt filed a motion requesting that this court strike Mitchell’s reply brief
because it alleged new facts, raised new arguments that were not responsive to his brief,
and attached in an addendum incomplete, misleading exhibits. In the alternative, Dillahunt
requested permission to file a surreply brief.
The arguments raised in Mitchell’s reply brief do not exceed the scope of
Dillahunt’s responsive brief and constitute permissible rebuttal, and the docum ents
included in her addendum are part of the record on appeal. Moreover, because Dillahunt
addressed the issues raised in Mitchell’s reply brief in his motion to strike and his reply to
Mitchell’s response to the motion to strike, and because Dillahunt h ad an opportunity at
oral argument to address the reply brief, a surreply brief was not necessary. Dillahunt’s
motion to strike and for permission to file a surreply brief are therefore denied.
IV.
Mitchell raises two additional arguments. She contends that the district court “erred
in finding it had subject matter jurisdiction [under the relevant federal statute] to order a
division of the nonmarital portion of [her] military r etired pay.” Mitchell also contends
that “[t]he District Court abused its discretion in considering [Dillahunt’s] June 12, 2018
post-hearing letter without giving [her] an opportunity to submit responsive
correspondence.” We disagree. Our review of the record indicates that Mitchell consented

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to the distri ct court’s jurisdiction, and consent is one method of establishing jurisdiction
under the federal statute. See 10 U.S.C. § 1408(c)(4) (2012). Moreover, she was not
prejudiced by the posthearing letter. Mitchell has not e stablished that the district court’s
findings of fact regarding jurisdiction were clearly erroneous or that the district court
abused its discretion regarding the letter.
Affirmed; motion denied.