A19-1182

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0884
A19-1182

In re the Marriage of:
Beth Marie Delzer, petitioner,
Respondent,

vs.

Randy Edward Delzer,
Appellant.

Filed May 18, 2020
Affirmed in part, reversed in part, and remanded
Segal, Chief Judge

Dakota County District Court
File No. 19AV-FA-17-738

Wayne A. Jagow, Jagow Law Office, P.A., Burnsville, Minnesota (for respondent)

Ronald B. Sieloff, Sieloff and Associates, P.A., Eagan, Minnesota (for appellant)

Considered and decided by Segal, Chief Judge; Ross, Judge; and Cochran, Judge.
U N P U B L I S H E D O P I N I O N
SEGAL, Chief Judge
In these consolidated marriage-dissolution appeals, husband a rgues that the district
court (1) understated wife’s income for child -support purpo ses by failing to consider her
spousal-maintenance award; (2 ) erred in determining that wife had a 7% nonmarital interest
in the marital home; (3 ) abused its discretion in its award of attorney fees; (4) exceeded the

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scope of its authority as a successor j udge under Minn. R. Civ. P. 63.01; ( 5) erred in its
disposition of certain funds in the trust account of husband’s former attorney; and (6) failed
to enforce the mediation provision in the judgment. We affirm in part, reverse in part, and
remand.
FACTS
Appellant-husband Randy Edward Delzer and respondent-wife Beth Marie Delzer
were married on August 4, 2001. The parties have three minor children. On March 11,
2017, wife petitioned for dissolution of marriage. The district court held a trial on August
7, 2018, and issued its judgment and decree dissolving the parties’ marriage on December
4, 2018. On December 20, the district court issued an amended order that corrected several
clerical errors, but did not substantively alter the judgment.
On January 17, 2019, wife filed a motion for amended findings. She requested that
the district court amend the judgment to award her a nonmarital interest in the marital
homestead and delete the portion of the judgment that awarded husband conduct -based
attorney fe es. She argued that she was entitled to a nonmarital interest in the marital
homestead because she paid the down payment for the marital homestead from the
proceeds of the sale of a home she acquired and sold prior to the marriage. She asserted
that the district court had misapplied the law in its initial judgment by determining that her
nonmarital interest was extinguished when the parties refinanced the home. She also
argued that the district court provided no factual basis to support the award of conduct-
based attorney fees to husband and therefore the award was not justified. Husband filed a

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responsive motion, requesting that the district court deny wife’s motion in its entirety and
seeking an additional award of conduct-based attorney fees.
Prior to the hearing on these motions, t he district court judge retired. On February
5, 2019, a different district court judge held a hearing on the motions. On April 5, the new
judge issued an amended judgment and decree that granted wife’s request to be awa rded a
7% nonmarital interest in the homestead and determined that neither party was entitled to
conduct-based attorney fees.
On April 17, wife filed a motion to enforce the judgment and require husband’s
former attorney to disburse funds being held in that attorney’s trust account. In response,
husband filed a motion to stay execution of the judgment and decree pending appeal by
either party to this court. Husband again sought conduct-based attorney fees. Following a
hearing, the district court grant ed wife’s motion and ordered that a portion of the funds
held in the trust account be disbursed to wife and the remaining portion be deposited with
the clerk of court, and denied husband’s motion for conduct-based attorney fees. Husband
appeals.
D E C I S I O N
I. The district court erred by failing to include spousal maintenance in calculating
wife’s income for child-support purposes.

Husband claims that the district court erred in calculating the parties’ child-support
obligations because it failed to incl ude the spousal maintenance awarded to wife when
calculating her income. We review a district court’s determination of a party’s income for

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child-support purposes for clear error. Newstrand v. Arend , 869 N.W.2d 681, 685 (Minn.
App. 2015), review denied (Minn. Dec. 15, 2015).
Under Minn. Stat. § 518A.29(a) (2018), “gross income includes . . . spousal
maintenance.” As part of the dissolution judgment, wife was awarded $1,000 per month
in spousal maintenance for a period of five years. When calculating the part ies’ incomes
to determine child support, the district court subtracted the maintenance award from
husband’s monthly income but did not add it to wife’s monthly income. The district court
therefore erred in its calculation of wife’s monthly income by faili ng to include spousal
maintenance as required by Minn. Stat. § 518A.29(a). Accordingly, we reverse and
remand to the district court to recalculate the parties’ child-support obligations.
II. The district court’s ruling that wife had a nonmarital interest in the marital
homestead is supported by the record and not contrary to law .

Husband challenges the district court’s award of a 7% nonmarital interest in the
marital home. “ Whether property is marital or nonmarital is a question of law, but a
reviewing court must defer to the trial court’s underlying findings of fact.” Olsen v. Olsen,
562 N.W.2d 797, 800 (Minn. 1997). Property can have “both marital and nonmarital
aspects.” Schmitz v. Schmitz, 309 N.W.2d 748, 750 (Minn. 1981). But “[w]hen nonmarital
and marital property are commingled, the nonmarital investment may lose that character
unless it can be readily traced.” Wiegers v. Wiegers, 467 N.W.2d 342, 344 (Minn. App.
1991). “Whether a nonmarital interest has been traced is also a question of fact.” Kerr v.
Kerr, 770 N.W.2d 567, 571 (Minn. App. 2009).

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The district court awarded wife a nonmarital interest of 7% in the marital homestead
because she paid the down payment , equal to 7% of the purchase price, on their marital
home using her own nonmarital assets . Prior to the parties’ marriage, wife purchased a
home in Bloomington. In the spring of 2001, wife decided to sell the Bloomington home
and purchase a home with husband. Husband helped wife prepare the Bloomington home
for sale and lived there for approximately one month. In April 2001, wife sold the
Bloomington home for a profit of $21,087.86. On April 27, 2001, prior to the marriage,
the parties purchased t he marital home for $245,000. Wife used a portion of the proceeds
from the sale of the Bloomington home to pay the $17,253.42 down payment. The parties
were not married until August 4, 2001. Approximately one year after purchasing the home,
the parties refinanced the home an d took out $15,000 in equity. The marital homestead
increased in value during the marriage and sold in October 2018 for $393,000.
Husband argues that the district court erred by determining that wife had a
nonmarital interest in the marital homestead based on her payment of the down payment
from the sale proceeds of her premarital home. He argues that the district court failed to
consider the labor he contributed to prepare wife’s premarital home for sale and that any
nonmarital inte rest wife may have had in the marital home was extinguished by
improvements made that increased the value o f the marital home during the marriage. He
alternatively argues that, even if wife did retain a nonmarital interest, the district court erred
in calculating the amount. We shall address each argument in turn.

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Husband’s Contributions to Wife’s Premarital Home
Husband argues that he contributed significant labor in fixing up wife’s house to
prepare it for sale and that the district court erred by not factoring that into the calculatio ns.
He concedes that he did the work as a gift and did not expect payment for it , but argues
that it nonetheless constitutes marital property under Minn. Stat. § 518.003, subd. 3b
(2018), because the gift was not made by a third party. That statute provides, in relevant
part, that nonmarital property includes property “acquired by either spouse before, during
or after the existence of their marriage, which (a) is acquired as a gift, bequest, devise or
inheritance made by a third party to one but not the other spouse; [or] (b) is acquired before
the marriage.” Minn. Stat. § 518.003, subd. 3b(a)-(b). Husband argues that the gift cannot
be considered nonmarital because it was not made by a third party. But Minn. Stat.
§ 518.003, subd. 3b(a), applies to situations in which a gift is made by a third party during
the marriage, not prior to the marriage. Specifically, the subdivision references a gift made
to one spouse but not to the other spouse. At the time the gift was made, the parties were
not married and therefore were not spouses. Since this subdivision of the statute only
applies to gifts to spouses, it only applies to gifts made during a marriage and is not
applicable here. Wife received the “gift” from husband before the marriage and, therefore,
Minn. Stat. § 518.003, subd. 3b(a), is not applicable.
Impact of Refinancing and Improvements to Marital Home
Husband next argues that any nonmarital interest wife had in the marital home was
extinguished by the subsequen t refinancing of and improvements to the marital home.
Under Minnesota law, a formula, referred to as the “Schmitz formula,” is applicable to

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determine the extent of marital and nonmarital interests when a marital home is acquired
with a nonmarital down p ayment. Antone v. Antone, 645 N.W.2d 96, 102 (Minn. 2002).
The “Schmitz formula” has been summarized as follows:
The present value of a nonmarital asset used in the acquisitio n
of marital property is the proportion the net equity or
contribution at the time of acquisition bore to the value of the
property at the time of purchase multiplied by the value of the
property at the time of separation. The remainder of equity
increase is characterized as marital property . . . .

Brown v. Brown, 316 N.W.2d 552, 553 (Minn. 1982).
In the December 20, 2018 judgment and decree, the district court determined that
wife had a nonmarital interest in the marital home based on her use of nonmarital funds for
the down payment, but concluded that the refinancing of the marital home extinguished the
nonmarital interest. The district court relied on Senske v. Senske, which held that “[w]hen
the parties refinanced the home, all of the equity in the home, including respondent’s
nonmarital share, was extinguished.” 644 N.W.2d 838, 841 (Minn. App. 2002). Following
wife’s motion for amended findings, the district court reversed the prior ruling and
determined that the refinancing of the marital home did not extinguish wife’s nonmarital
interest. We agree. Since the release of Senske, Minnesota courts have repeatedly clarified
that refinancing a home does not automatically extinguish a nonmarital interest. See
Antone, 645 N.W.2d at 103 ; Kerr, 770 N.W.2d at 570 -71 n.3 (noting that Senske was
released a month prior to Antone and, to the extent that the holding from Senske on
refinancing and nonmarital interests is inconsistent with Antone, the court follows Antone).
In Kerr, this court explained that the “nonmarital interest is not lost or decreased by

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increasing the marital debt secured by a homestead.” 770 N.W.2d at 570. Accordingly,
the refinancing of the marital home did not extinguish wife’s nonmarital interest in the
marital home.
Because wife maintained a nonmarital interest in the marital home after the
refinancing, we must next consider what impact the improvements the parties made to the
home during the marriage had on her nonmarital interest. The parties made numero us
improvements to the homestead during the marriage. They finished the basement, installed
new windows, remodeled the kitchen, did electrical work, built a pole shed and horse arena,
and enhanced the landscaping. In general, “[i]mprovements made by the parties are
presumed to be marital property.” Dorweiler v. Dorweiler, 413 N.W.2d 572, 576 (Minn.
App. 1987). When marital contributions and improvements increase the value of the home,
our opinion in Dorweiler established the following formula to calculate the value of the
nonmarital interest:
Proper calculation of [wife’s] current nonmarital interest in the
homestead requires that the court first divide her nonmarital
contribution to the downpayment by the purchase price of the
house. Next, the cost of repairs and improvemen ts must be
subtracted from the current value of the house in order to
determine the increase in value of the property due solely to
appreciation. Finally, the net appreciated value of the house
must be multiplied by the ratio of nonmarital net equity to
purchase price in order to determine [wife’s] nonmarital
interest in the homestead.

Id. (citation omitted).
Husband argues that the district court erred in its determination that wife had a 7%
nonmarital interest in the marital home because it failed to properly apply the Dorweiler

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formula. But as the district court observed, while it is undisputed that the par ties made
improvements to the marital home , the record contains little to no information about the
costs of those improvements or the corresponding increase in value of the marital home.
The district court was therefore unable to subtract the costs of the repairs and improvements
because it did not have this information. Rather, the district court was left to calculate
wife’s nonmarital interest based on the only solid evidence it did have —the amount of the
down payment made by wife and the purchase price of the home. We therefore conclude
that the district court did not err by failing to factor in the improvements made to the home
during the parties’ marriage because the record does not contain that information.
Calculation of Nonmarital Interest
Finally, husband argues that the district court erred in calculating the amount of
wife’s nonmarital interest in the marital home. He argues that the district court erred
because it failed to factor in the closing costs of $6,003.42 and , therefore, the purchase
price of the home was not $245,000, but $251,003.42. He argues that , based on the
purchase price plus closing costs , wife’s nonmarital interest should have been calculated
as 6.8%, rather than 7%. He relies on Kerr to support his assertion. In Kerr, the wife
contributed $54,985 “towards the closing costs, taxes, and down payment applied to the
purchase price of the marital home.” 770 N.W.2d at 570. On appeal, the husband argued
that the money contributed by the wife toward the closing costs should have been deducted
from the total amount of her down payment, thereby decreasing her nonmarital interest.
Id. This court disagreed and determined that the district court “did not err by failing to

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deduct” the money toward closing costs and taxes before calculating the wife’s nonmarital
interest. Id.
Husband in this case argues that, because no error was found in Kerr where the court
added closing costs to the overall purchase price, error must be found here where the court
failed to add in suc h costs. Husband makes various policy arguments to support his
assertion that this constitutes error, but cites to no additional legal authority requiring this
deduction. Moreover, this court noted in Kerr that when calculating a party’s nonmarital
interest, it is not necessary that the Schmitz formula be strictly applied by the district court.
Id. Rather, “[i]t is sufficient that the trial court arrive at a figure which is close to the figure
it would have arrived at had it used the Schmitz formula.” Id. Further, it should be noted
that the error alleged by husband is only two-tenths of one percent of the sale price of the
marital home, which equals $786. Even if this was an error, this amount is de minimis and
does not require remand. See Risk ex rel. Miller v. Stark, 787 N.W.2d 690, 694 n.1 (Minn.
App. 2010) (refusing to remand for de minimis error in valuation of land).
Throughout the proceedings, the parties agreed that the purchase price of the marital
home was $245,000, which is the figure tha t the district court ultimately used when
calculating wife’s nonmarital interest. Because the district court used the purchase price
agreed upon by the parties and has some flexibility in its application of the Schmitz formula,
we discern no error in its determination that wife has a 7% nonmarital interest in the marital
home.

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III. Rulings on attorney fees .
Husband challenges the district court’s award of need -based attorney fees to wife
and denial of an award of conduct-based fees to him. We review an award of attorney fees
for an abuse of discretion. We “will rarely reverse” a district court’s decision to award or
deny attorney fees. Rosenberg v. Rosenberg, 379 N.W.2d 580, 587 (Minn. App. 1985),
review denied (Minn. Feb. 19, 1986).
Need-Based Attorney Fees
Husband challenges the district court’s award of need -based attorney fees to wife.
In a marriage-dissolution action, a district court “shall award attorney fees, costs, and
disbursements in an amount necessary to enable a party to carr y on or contest the
proceeding,” provided that the district court finds:
(1) that the fees are necessary 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 p arty from whom fees, costs, and
disbursements are sought has the means to pay them; and
(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 (2018) . If the statutory requirements are met for need -based
attorney fees, then a district court “shall” award the need -based attorney fees. Id. The
supreme court has established that district court decisions regarding need -based attorney
fees are reviewed for an abuse of discretion. Gully v. Gully, 599 N.W.2d 814, 825 (Minn.
1999).

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Husband argues that the district court did not make sufficiently specific findings to
support the award of need -based attorney fees. In general, “[c]onclusory findings on the
statutory factors do not adequately support a fee award.” Geske v. Marcolina, 624 N.W.2d
813, 817 (Minn. App. 2011). But a lack of specific findings “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.” Id. (quotations omitted).
Here, the district court awarded wife $10,000 in need-based attorney fees but did
not make any s pecific findings on the need for the award. We therefore must consider
whether a review of the order “reasonably implies” that the district court considered the
relevant factors and was sufficiently familiar with the history of the case and the parties’
financial records. Id. It is clear that the district court was familiar with the parties’ general
monthly incomes and expenses, as those records were submitted and e valuated by the
district court when determining the issue of spousal maintenance. But it is unclear from
the record whether the district court considered wife’s ability to pay from the property
award she received in the dissolution. And we note that the attorney fees were awarded in
the initial judgment that did not award wife a nonmarital i nterest in the marital home .
Following the motion for amended findings, her property award was significantly increased
based on the determination that she had a nonmarital interest in the marital home . On this
record, we cannot conclude that the order “reasonably implies” that the district court
considered the relevant factors and was sufficiently familiar with the parties’ financial
situations because wife’s property award significantly changed following the

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determination that she had a nonmarital interest in the marital home. Accordingly, we
remand to the district court for more s pecific findings on the necessity of need -based
attorney fees.
Conduct-Based Attorney Fees
We review a district court’s decision regarding conduct -based attorney fees for an
abuse of discretion. Szarzynski v. Szarzynski , 732 N.W.2d 285, 295 (Minn. App. 2007).
Husband argues that the district court abused its discretion by “deleting from the Amended
Decree the $6,000 award of conduct based attorney’s fees.” The district court determined
that husband was not entitled to conduct -based attorney fees because the initial judgment
did not contain factual findings to support , and the record did not justify, such an award.
Husband argues that he is entitled to conduct -based fees because the initial judgment
contained a conclusion of law that stated “[Wife] has unnecessarily increased the length of
this case.” He argues that this was a finding o f fact that was merely mislabeled as a
conclusion of law and therefore the record supports an award of conduct -based fees. But
as wife notes, there are no findings that address how wife unnecessarily contributed to the
length of the case. Notably, husband moved for conduct-based fees several times based on
the assertion that wife was unnecessarily increasing the length of the case by continuing to
claim a nonmarital interest in the marital home. Wife, however, ultimately succeeded in
being awarded a nonm arital interest. On this record, the district court did not abuse its
discretion by deleting the conduct-based attorney fees award from the amended judgment.

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IV. Authority of a successor judge under Minn. R. Civ. P. 63.01.

Husband further contests the district court’s posttrial order on the ground that the
judge exceeded the authority granted to him as a successor judge under Minn. R. Civ.
P. 63.01. “The interpretation of the Minnesota Rules of Civil Procedure is a question of
law that we review de nov o.” Gams v. Houghton , 884 N.W.2d 611, 616 ( Minn. 2016).
The rule provides:
If by reason of death, sickness, or other disability a
judge before whom an action has been tried is unable to
perform judicial duties after a verdict is returned or findings of
fact and conclusions of law are filed, any other judge regularly
sitting in or assigned to the court in which the action was tried
may perform those duties; but if such other judge is satisfied
that the duties cannot be performed because that judge did not
preside at the trial or for any other reason, that judge may
exercise discretion to grant a new trial.

Minn. R. Civ. P. 63.01.
In this case, the district court judge who presided over the trial and issued the initial
judgment and decree retired prior to the posttrial motions and hearings on those motions.
A different judge was assigned to the case and considered and ruled on those motions.
Husband argues that the second judge exceeded his authority as a successor judge by
considering and ruling on wife’s posttrial motions. For purposes of Minn. R. Civ. P. 63.01,
the phrase “other disability” includes retirement, and a successor judge may reconsider and
amend findings made by the prior judge. Kornberg v. Kornberg, 542 N.W.2d 379, 385 -86
(Minn. 1996). Based on Kornberg, the successor judge in this case had the authority to
consider the posttrial motions because the initial judge retired. And while the successor
judge had the discretion under rule 63.01 to grant a new trial if he felt it was necessar y, he

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chose not to exercise that discretion. This was reasonable considering that wife’s motion
for amended findings was based not on the kind of issues in the province of the fact-find er
at trial, but on a purely legal argument—she asserted that the prio r judge misapplied the
law by relying on Senske. On this record, the successor judge did not exceed the authority
granted under rule 63.01.
V. Ruling on wife’s motion to enforce the judgment.
Husband argues that the district court abused its discretion by granting wife’s
motion to enforce and ordering that the money held in a trust account by husband’s former
attorney be disbursed. This issue is also governed by an abuse -of-discretion standard of
review. Potter v. Potter , 471 N.W.2d 113, 114 (Minn. App. 1991).
The judgment provided that certain items of personal property would be included in
a property auction and that the parties would each receive 50% of the net proceeds of the
auction, subject to any property equalization. The proceeds of the aucti on were deposited
in a trust account of husband’s former attorney. Husband argues that the district court
abused its discretion by granting wife’s motion to enforce and require funds to be disbursed
from the trust account so that wife could be paid for her nonmarital interest in the marital
home. He argues that his substantive rights were affected “because the terms of the decree
are property and property awards are final.”
“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.” Redmond v. Redmond , 594 N.W.2d 272, 275
(Minn. App. 1999). An order does not affect substantive rights if it does not increase or

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decrease the division of marital property. Nelson v. Nelson, 806 N.W.2d 870, 871 (Minn.
App. 2011). Here, the order did not affect the parties’ substantive rights because it
ultimately did not increase or decrease the total property award to either party. Rather, the
order merely served to clarify and enforce the provisions of the judgment based on the
posttrial amended order granting wife the 7% nonmarital interest in the marital home. The
initial judgment did not include the 7% nonmarital award and the marital home was already
sold with the net proceeds distributed on a 50% basis in accordance with the original order.
The district court’s order simply required husband to pay the nonmarital interest to wife
from the available funds in the trust account. The order was, therefore, necessary to enforce
the provision of the amended judgment that granted wife a nonmarital interest in the
homestead, and did not increase or decrease the total property award to either part y. As
such, the order did not affect husband’s substantive rights, and the district court did not
abuse its discretion by granting wife’s motion to enforce.
VI. Failure to enforce the mediation provision.
For his final issue, husband argues that the dist rict court erred by failing to enforce
the mediation provision contained in the December 20, 2018 judgment and decree. The
judgment contains a provision that “[a]ny claim or controversy arising under this Judgment
and Decree, which cannot be resolved by a nd between the parties through direct
communication, shall be promptly submitted to mediation” and that “[t]he above procedure
shall be followed before either party may ap ply to the Court for relief.” He argues that ,
based on this provision, all subsequent order s issued by the district court must be vacated.
But as wife points out, husband did not raise this issue in the district court , and fully

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participated in the subsequent proceedings. Accordingly, this issue has been forfeited
because it was not timely raised before the district court. See Ries v. State , 920 N.W.2d
620, 640 n.2 (Minn. 2018) (noting that a party forfeits a right by failing to make a timely
assertion of that right).
In sum, we affirm the district court’s determination that wife has a 7% nonmarital
interest in the marital home , its denial of an award of conduct -based attorney fees to
husband and its order granting wife’s motion to enforce. But we reverse and remand to the
district court to recalculate the parties’ child -support obligations by including the spousal
maintenance award in wife’s income and to make additional findings based on the current
record on the issue of need-based attorney fees for wife.
Affirmed in part, reversed in part, and remanded.