In re the Marriage of: Susan Lee Wood, 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This opinion will be unpublished and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
A19-0554

In re the Marriage of: Susan Lee Wood, petitioner,
Respondent,

vs.

Brad Wesley Wood,
Appellant.

Filed December 16, 2019
Affirmed
Hooten, Judge

Dakota County District Court
File No. 19AV-FA-16-2345

Susan Lee Wood, Burnsville, Minnesota (pro se respondent)

Jacob M. Birkholz, Michelle K. Olsen, Birkholz & Associates, LLC, Mankato, Minnesota
(for appellant)

Considered and decided by Hooten, Presiding Judge; Smith, Tracy M., Judge; and
Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this marital dissolution dispute, appellant husband argues that the district court
(1) lacked authority to amend the property division to address gains and losses in a 401(k)

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

2
account; (2) modified an otherwise final property division; and (3) should have awarded
appellant husband conduct-based attorney fees. We affirm.
FACTS
Appellant Brad Wesley Wood and respondent Susan Lee Wood married in 1981.
After 35 years of marriage, wife filed a petition for dissolution of marriage in 2016. The
district court held a bench trial over two days in August 2017. The parties agreed to a
valuation date of November 2, 2016, f or the division of property. In November 2017, the
district court entered a judgment and decree.
The next month, husband moved to amend the district court’s findings, among other
requests. The district court granted husband’s motion in part and denied it in part. Husband
appealed the district court’s amended judgment, challenging the district court’s award of
spousal maintenance and arguing that the district court abused its discretion in awarding
wife spousal maintenance based on the parties’ gross income rather than net income. Wood
v. Wood, No. A18-0722, 2019 WL 1591767, at *1 (Minn. App. Apr. 15, 2019). This court
agreed and released its opinion in Wood I on April 15, 2019, reversing and remanding to
the district court for further findings on net income. Id. at *3.
Prior to the r elease of Wood I, the parties began discussing the disbursement of
husband’s Alliant pension and 401(k) account. The judgment and decree provides:
[Husband]’s Alliant Pension Defined Benefit Plan. The parties
shall prepare a Qualified Domestic Relations Order for the
Alliant Pension Defined Benefit Plan account, valued at
$332,718.14, which shall be equally divided;

[Husband]’s Alliant 401(k) . [Husband] is awarded all right,
title and interest in the Alliant 401(k) and valued on the date of

3
valuation at $308,185.00, free and clear of any claim by [wife]
after the payment of $154,092.50 from the account to [wife];

. . . .

The Court shall retain jurisdiction to effectuate these
paragraphs until the division of the accounts is completed. The
division of [husband’s] Alliant Pension Defined Benefit Plan
as set forth above shall be by a Qualified Domestic Relations
Order (QDRO) drafted by [husband’s] attorney, with cost
shared equally by the parties. The proposed QDRO shall be
drafted within 30 days of this Order and counsel for [husband]
shall send a copy to [wife’s] counsel and the Plan
Administrator for approval, and then to the Court for entry.

In October 2018, more than six months after the district court issued its amended
order, wife moved for the district court to enforce the above provisions. At that time,
husband had neither completed the pension QDRO nor paid wife any of her share in the
401(k). Wife requested that the district court order husband to complete a QDRO for the
Alliant pension and to sign the pre -approved Alliant 401(k) QDRO that wife ’s counsel
prepared. The pre-approved proposed QDRO awarded wife her share of his 401(k) and
any gains or losses earned since the date of valuation.
Husband filed a responsive motion, arguing th at wife’s requests were moot as the
matter was pending on appeal at this court. He also moved to deny wife’s request because
she failed to initiate a settlement conference to resolve the issues identified in her motion
and moved for c onduct-based attorney fees. At the motion hearing, husband argued that
the district court no longer had authority to amend the judgment and decree to add language
to allow for gains and losses on the 401(k) because the time for appeal had passed.

4
The district court issued an order that stayed wife’s motion to enforce the Alliant
pension and 401(k) QDROs pending the outcome of husband’s first appeal. But the district
court granted wife’s motion to clarify the 401(k) account distribution to include the
language, “subject to gains and losses from the valuation date,” and amended the parties’
judgment and decree “to reflect this equitable division of the 401(k) account.” The district
court denied wife’s request for attorney fees and husband’s requests for sanctions against
wife.
Husband’s appeal follows.
D E C I S I O N
Husband challenges the district court’s amended judgment and decree. He argues
that the district court: (1) no longer had authority to amend the judgment and decree ; (2)
erred by modifying the final property division; and (3) abused its discretion when it failed
to award him conduct-based attorney fees. We address each argument in turn.
I. The district court was not precluded from addressing the 401(k)
account.

Generally, after its entry, a dissolution judgment and decree is final subject to the
right of appeal. Minn. Stat. § 518.145, subd. 1 (2018). In this case, husband argues that
the district court lacked “jurisdiction” to award wife part of the increase in value of the
401(k) account because the t ime to appeal expired before wife sought this relief from the
district court. The judgment, however, states both that husband would retain his 401(k)
account “free and clear of any claim by [wife] after the payment [to wife,]” and that the
district court “shall retain jurisdiction to effectuate [the divisions of the 401(k) account and

5
the pension] until the division of the accounts is completed.”1 (Emphasis added.) Thus,
husband’s failure to make the payment preserved both wife’s ability to make a cla im
regarding the 401(k) account and the district court’s “jurisdiction” to address that claim.
Nor was the district court precluded from addressing wife’s claim regarding the
401(k) account by the pendency of the first appeal. While a timely and proper appe al
suspends the district court’s authority to make any order that affects the ruling from which
the appeal is taken, the district court “retains jurisdiction as to matters independent of,
supplemental to, or collateral to” the ruling being appealed. Minn. R. Civ. App. P. 108.01,
subd. 2. Collateral matters over which a district court retains jurisdiction pending appeal
include whether to enforce the judgment. David N. Volkmann Const., Inc. v. Isaacs , 428
N.W.2d 875, 876–77 (Minn. App. 1988) (citing Spaeth v. City of Plymouth , 344 N.W.2d
815, 824 (Minn. 1984)). Thus, absent an order of the district court granting a stay pending
appeal, a party may seek to enforce a judgment while an appeal of that judgment is pending.
Minn. R. Civ. App. P. 108.01, subd. 1. Here, husband did not obtain from the district court
a stay pending the first appeal. Therefore, the pendency of the first appeal did not preclude
the district court from addressing wife’s claim to enforce the property division of the 401(k)
account while husband’s appeal of the judgment was pending in this court.

1 Because the judgment explicitly st ates that the district court retains jurisdiction to
effectuate the division of the 401(k) account, it is unclear whether husband’s assertion that
the district court lacks “jurisdiction” uses the term “jurisdiction” in its technical sense. Cf.
Moore v. Moore, 734 N.W.2d 285, 287 & n.1 (Minn. App. 2007) (noting that “courts and
parties often use concepts and language associated with ‘jurisdiction’ imprecisely to refer
to, among other things, nonjurisdictional claims -processing rules or nonjurisdictional
limits on a court’s authority to address a question”), review denied (Minn. Sept. 18, 2007).

6
II. The district court did not err by clarifying the property division in the
judgment and decree.

Husband argues that the district court improperly modified the property division by
awarding wife half of the post-valuation-date change in the value of the 401(k) account.
When the terms of a judgment are ambiguous or indefinite, the district court may
clarify or interpret its order. Stieler v. Stieler, 70 N.W.2d 127, 131 (Minn. 1955).
[A] document is ambiguous if it is reasonably susceptible to
more than one meaning. Whether a provision in a dissolution
judgment and decree is clear or ambiguous is a legal question.
A district court ’s determination of the meaning of an
ambiguous judgment and decree provision is a fact question,
which appellate courts review for clear error.

Suleski v. Rupe , 855 N.W.2d 330, 339 (Minn. App. 2014) (quotations and citations
omitted). “Such clarification does not constitute an amendment to the judgment.” Hanson
v. Hanson, 379 N.W.2d 230, 232 (Minn. App. 1985). “[A] clarification does not result in
a judgment different from that originally ordered, but serves only to express accurately the
thoughts which the original judgment intended to convey.” Id.
A. The district court did not err in treating the judgment as ambiguous.
The dissolution judgment states that the value of the 401(k) account on the 2016
valuation date was $308,185 and awards that account to husband “free and clear of any
claim by [wife] after the payment of $154,092.50 from the account to [wife].” The
judgment, however, does not directly address the disposition of post -valuation-date
changes in the value of the 401(k) account. Nor does the judgment indirectly address the
disposition of those changes in the value of the account. Unlike its directive that husband
provide a QDRO to divide the pension within 30 days of the court’s order, the judgment

7
addresses neither the vehicle to use to divide the 401(k) account nor when to divide that
account. Thus, the judgment awards wife a dollar amount from the 401(k) account equal
to half of that account’s value on the valuation date without addressing when or how the
account is to be divided, and without addressing whether the division must accoun t for
changes in the value of the account between the 2016 valuation date and the unspecified
but now-much-later division date. This judgment could be reasonably read to award or not
to award wife a share of the post -valuation-date changes in the valuatio n of the 401(k)
account. Therefore, the district court did not modify the property division, and the district
court did not err in treating the judgment as ambiguous regarding the disposition of the
post-valuation-date changes in the value of the 401(k) account and clarifying that aspect of
the judgment.
B. The district court did not err in construing the meaning of the ambiguous
provision.

The district court judge construing the dissolution judgment was the same judge
who previously issued that judgment. Therefore, his reading of his own judgment “ is
entitled to great weight.” Suleski, 855 N.W.2d at 339 (quotation omitted). In clarifying
that the judgment should be read to include an award to wife of half of the post-valuation-
date change in the value of the 401(k) account, the district court stated:
Awarding [wife] one-half the gains and/or losses simply
clarifies Paragraph 10 of the Amended Judgment and Decree
and does not change the substantive rights of the parties in that
original property division. Certainly, [husband] cannot expect
to be awarded the gains on [wife]’s portion of the account from
November 3, 2016 to present, especially when the Judgment
and Decree required [husband]’s attorney to draft the QDRO

8
within 30 days of the Order filed November 29, 2017 which
has not yet been completed nearly a year and a half later.

Regarding post -judgment dealings with the property division in a dissolution
judgment, this court stated:
While a district court may not modify a final property division,
it may issue orders to implement, enforce, or clarify the
provisions of a decree, so long as it does not change the parties’
substantive rights. An order implementing or enforcing a
dissolution decree does not affect the parties’ substantive rights
when it does not increase or decrease the original division of
marital property. This court will not disturb an appropriate
order to clarify, implement, or enforce terms of a decree, absent
an abuse of discretion.

Nelson v. Nelson , 806 N.W.2d 870, 871 (M inn. App. 2011) ( quotations and citation s
omitted).
In this case, the district court’s reading of the judgment to award wife half of the
post-valuation-date change in the value of the 401(k) account is within the scope of the
possible interpretations of the provisions in question, and husband has not shown that
interpretation to be clearly erroneous. We also affirm the award to wife of half of that post-
valuation-date change in the value of the 401(k) account as not changing the parties’
substantive rights set out by the originally ambiguous judgment. In doing so, we note that
the district court’s decision is consistent with both caselaw and the relevant statute.
Specifically, when a dissolution judgment delays a party’s receipt of a property award, the
district court is to award interest on the award or make findings explaining why it did not
award that interest. Thomas v. Thomas, 407 N.W.2d 124, 127 (Minn. App. 1987). In this
case, the district court’s reading of its judgment to award wife half o f the post-valuation-

9
date change in the value of the 401(k) account is consistent with the interest the district
court could have awarded under Thomas. Additionally, if, as here, “there is a substantial
change in value of an asset between the date of valu ation and the final distribution, the
court may adjust the valuation of that asset as necessary to effect an equitable distribution.”
Minn. Stat. § 518.58, subd. 1 (2018).2
Therefore, t he district court did not err by clarifying the ambiguous property
division provision in the judgment and decree.
III. The district court did not abuse its discretion when it refused to award
husband conduct-based attorney fees.

Husband argues that the district court abused its discretion when it refused to award
him conduct-based attorney fees based on wife’s motion to clarify the amended order.
“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

2 Husband cites McGowan v. McGowan, 532 N.W.2d 258 (Minn. App. 1995) for the idea
that, because the dissolution judgment awarded wife a lump sum from the 401(k) account,
it cannot now alter that award. McGowan is distinguishable. There, years after entry of
the dissolution judgment, the husband’s early retirement changed the value of the lump-
sum pension benefits previously awarded to the wife in the dissolution judgment. This, in
turn, required a change in the value of the pension benefits awarded to the wife to
accomplish the equal division of marital property thought to have been made in the
dissolution judgment. See 532 N.W.2d at 260. Thus, the question in McGowan was how
to accomplish the otherwise unambiguous property division previously made in the
dissolution judgment. Here, however, as set out above, the question was to identify what
the ambiguous property division previously made in the dissolution judgment actually was.
Because the award to wife here originally, albeit ambiguously, included half of the post -
valuation-date change in value of the 401(k) account, this district court did not run afoul
of McGowan.

10
unreasonably contributes to the length or expense of the proceeding.” Minn. Stat. § 518.14,
subd. 1 (2018).3 Conduct-based fees may be based on the impact of a party’s behavior on
the costs 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 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.
The district court denied husband’s motion for conduct -based attorney fees. The
district court did not explain its reasoning in doing so. But, presumably, the district court
concluded that wife did not unreasonably contribute to the length or expense of the
proceeding, as the district court granted her motion to clarify the order. Furthermore, other
issues were raised at the motion hearing, and the parties were subsequently able to resolve
those issues before the hearing and to present their agreements to the district court. Because
wife’s motion did not unreasonably contribute to the length or expense of the proceeding,
and if anything, husband’s conduct caused the need for further proceedings, we see no

3 See Anderson v. Anderson , No. A16 -2006 (Minn. Aug. 6, 2018) (order) (questioning
whether Minn. Stat. § 518.14 creates a substantive basis for an award of conduct -based
attorney fees). For purposes of this appeal, we assume, without deciding, that the statute
does so. See Madden v. Madden, 923 N.W.2d 688, 702 (Minn. App. 2019) (“For purposes
of this appeal, we will assume without deciding that the statute [provides a substantive
basis for an award of conduct-based fees].”).

11
reason to conclude that the district court abused its discretion in denying husband’s request
for conduct-based attorney fees.
Affirmed.