In re the Marriage of: Amanda Jo Briggs, 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This opinion will be unpublished and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
A19-1156

In re the Marriage of:
Amanda Jo Briggs, petitioner,
Respondent,

vs.

Kent Stewart Mitchell Briggs,
Appellant.

Filed October 26, 2020
Affirmed as modified
Slieter, Judge

Hennepin County District Court
File No. 27-FA-17-3414

Ruta Johnsen, Nancy Zalusky Berg, Nancy Zalusky Berg, L LC, Minneapolis, Minnesota
(for respondent)

Beth Wiberg Barbosa, Gilbert Alden Barbosa, Edina, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Cochran, Judge; and Slieter,
Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
On appeal from judgment and decree following the parties’ marriag e-dissolution
proceeding, appellant-husband Kent Stewart Mitchell Briggs challenges the district court’s
award of need -based and conduct -based at torney fees to respondent-wife Amanda Jo

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Briggs. He argues that the award was excessive and that payment would require liquidation
of nonmarital assets. Because the district court did not abuse its discretion in awarding the
attorney fees, we affirm. However, we modify the award to eliminate duplicative fees.
FACTS
The parties were married in 2010 and wife file d a petition for dissolution of the
marriage in 2017. As a part of her motion seeking temporary relief in 2017, wife requested
$15,000 in need-based attorney fees from husband “to continue to have representation in
this dissolution.” In a written order f ollowing a hearing on the motion, the district court
concluded that it was “appropriate to advance to [ wife] the sum of $15,000 in order to
secure [ wife’s] ongoing representation in this matter.” The district court continued ,
“whether the fees should be considered need-based, or should be considered an advance on
the property settlement shall be determined in mediation or at trial, but these fees are
reasonably necessary for [wife] to litigate this matter.” Husband paid these fees to wife.
As part of a four-day trial involving the marriage dissolution, the district court first
held a one-day hearing in 2018 regarding the enforceability of the parties’ antenuptial
agreement. The district court concluded that the antenuptial agreement was unenforceable
and awarded wife need-based attorney fees of $20,000 on the grounds that “the fees are
necessary for [ wife’s] assertion of her rights in the proceeding and [did] not contribute
unnecessarily to the length and expense of the proceeding” and that “[husband] has the
means to pay them. [ Wife] DOES NOT have the means to pay them. ” The district court
continued, “the Court declines to address conduct -based attorneys’ fees at this time;
although it may ch oose to do so at a later date” and concluded “[t]he Court defers a

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conduct-based decision at present, because a need -based award is so clearly appropriate
and will adequately resolve the issue.” Husband paid these fees to wife.
Following the three other days of trial, the district cou rt noted in its judgment and
decree that it had “already awar ded [w]ife some need-based attorneys’ fees” and that any
attorney fees issued in the order would be in addition to the previous awards.
In the section of the order titled “Conduct-Based Attorney Fees,” th e district court
found that the hearing on the enforceability of the antenuptial agreement was “ largely
unnecessary” because husband was aware of wife’s arguments prior to the hearing yet
“testified (on almost every point) consistently with [wife] and her witnesses.” The district
court concluded that husband “unreasonably contribute[d] to the length or expense of the
proceeding” and awarded wife conduct-based attorney fees of $24,525 for fees incurred
related to the antenuptial hearing. The district court noted that “[t]his is the only conduct-
based fees award that the Court will order.”
The district court also addressed need -based attorney fees, and awarded wife
$54,483.60 based on her financial needs and fees “related to and preparing for” the three
days of trial following the antenuptial hearing. Wife’s counsel also asked for an additional
$14,309.50 in conduct -based fees related to the 2017 motion for temporary relief. The
district court granted this request, although noted that it did not include thi s amount in its
conduct-based fees award but “[would] include it as part of the need -based award.”
Including the $14,309.50 need-based fees related to the temporary relief motion, the district
court awarded wife a total of $68,793.10 in need-based attorney fees. Because the district

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court also awarded wife an additional $24,525 in conduct-based fees, wife’s total fee award
was $93,318.10.
Husband appeals.
D E C I S I O N
I
Appellate courts review a district court ’s award of attorney fees for an abuse of
discretion, Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999), and we “will rarely reverse”
such a decision, Rosenberg v. Rosenberg, 379 N.W.2d 580, 587 (Minn. App. 1985), review
denied (Minn. Feb. 19, 1986).
In a marriage-dissolution action, a district court “shall” award need-based “attorney
fees, costs, and disbursements in an amount necessary to enable a party to carry on or
contest the proceeding,” provided that:
(1) 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) the party from whom fees, costs, and disbursements are
sought has the means to pay them; and
(3) 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). Conduct-based attorney fees may be awarded
“against a party who unreasonably contributes to the length or expense of the proceeding.”
Brodsky v. Brodsky, 733 N.W.2d 471, 476 (Minn. App. 2007) (citing Minn. Stat. § 518.14,
subd. 1). Such fees are appropriate when a party’s positions throughout the proceedings
are “duplicitous and disingenuous and have h ad the effect of further . . . lengthening [the]

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litigation, and increasing the expense of [the] proceedings.” Redmond v. Redmond ,
594 N.W.2d 272, 276 (Minn. App. 1999). “[A] party moving for conduct -based attorney
fees under Minn. Stat. § 518.14, subd. 1, has the burden to show that the conduct of the
other party unreasonably contributed to the length or expense of the proceeding.” Baertsch
v. Baertsch, 886 N.W.2d 235, 238 (Minn. App. 2016).
A. Statutory Findings
Husband solely contests elements two and three of section 518.14. He argues that,
in determining his ability to pay, the district court did not adequately review the assets and
liabilities of the parties in light of their property settlement agreement. He further argues
that, in determining that wife did not have the means to pay her attorney fees, the district
court did not consider the allocation of the property settlement award between the parties
which granted her a greater share of marital assets , wife’s monthly spousal maintenance
award of $3,000 per month for 36 months, and that wife has less expenses than him.
The district court addressed the statutory factors for need-based attorney fees in the
judgment and decree by stating, “[o]n review of the parties’ property settlement, it is clear
that Husband had the ability to pay the attorneys’ fees Wife incurred, and that [Wife] does
not—particularly in light of the fact that she has no real retirement saving and the Court is
imputing income to her at a time she is not working a meaningful number of hours.”
We deem these findings conclusory, and “[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. 2001), review denied (Aug. 20, 2002). But, “a lack of specific findings on the
statutory factors for a need-based fee award under Minn. Stat. § 518.14, subd. 1, is not fatal

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to an award” if the order “reasonably implies that the district court considered the relevant
factors” and if “the district court was familiar with the history of the case and had access
to the parties’ financial records.” Id. (quotation omitted).
Our review of the record compels us to conclude that the district court was familiar
with, and considered, the financial status of the parties related to their ability to pay, thus
satisfying the statutory requirements needed to support an award of need-based attorney
fees. The district court noted the disparity between the parties ’ incomes and concluded
that husband’s average monthly income between 2016 and 2018 was $15,505, while wife
earned “less than $1,000 in 2017 and 2018” while claiming monthly living expenses of
$4,650. The district court concluded that wife earned a “nominal income” following th e
parties’ separation.
The record also reflects that the district court reviewed and accepted the parties’
stipulated property settlement agreement as part of the judgment and decree, which
addressed, in part, husband’s interest in nonmarital property. Pu rsuant to this agreement,
the district court concluded that husband had a nonmarital interest of $255,171 in a Roth
IRA account , and wife would receive an award of $28,504 from this account. The
judgment and decree also specified that husband had an ownership in an SEP IRA with a
balance of $165,298 at the date of valuation, with a nonmarital interest in this account of
$9,656, and that wife would receive $71,328 from this account. In sum, we conclude the
district court was familiar with, and considered, the financial status of husband and wife,
and discern no abuse of the court’s discretion in its award of need-based attorney fees.

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B. Nonmarital Property
Additionally, husband argues that the effect of the attorney fees award is that he will
be forced to liquidate nonmarital assets to satisfy the payment and the district court did not
make required findings pursuant to Minn. Stat. § 518.58, subd. 2 (2018) to support such an
apportionment. This statute states “ [i]f the court apportions property other than marital
property, it shall make findings in support of the apportionment.” Minn. Stat. § 518.58,
subd. 2.
We discern no error because, contrary to husband’s claim, the court did not
apportion husband’s nonmarital property to wife, which would require findings pursuant
to Minn. Stat. § 518.58, subd. 2. Instead, the district court considered husband’s nonmarital
assets in its attorney fees determination and concluded that he had the means to pay the
award. Such co nsideration is permitted pursuant to our court’s ruling in Berenberg v.
Berenberg, 474 N.W.2d 843, 849 (Minn. App. 1991), review denied (Minn. Nov. 13, 1991)
(concluding that district court did not abuse its discretion in considering nonmarital earning
potential in its fee award).
For the foregoing reasons, we find no abuse of discretion in the district court’s bases
for the fees award. We do conclude, however, that portions of the need-based and conduct-
based attorney fees awarded in the judgment and decree are duplicative of attorney fees
awarded in prior proceedings and should, therefore, be modified as explained below.
II
In its final judgment and decree, the district court awarded wife $14,309.50 in need-
based attorney fees rela ted to the temporary relief proceeding in 2017. The district court

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had already awarded $15,000 in attorney fees to wife from this hearing and, as previously
noted, declined to classify these fees as either need based or as a property -distribution
advance.
The district court noted in its final judgment and decree that the only conduct-based
fees awarded were related to the antenuptial hearing and the court made no reference to the
$15,000.00 fee award in the property allocation . This compels us to conclude that the
$15,000 attorney-fee award was need based, as was the additional $14,309.50 awarded in
the final judgment. Because these awards are duplicative, we subtract the $14,309.50 in
fees awarded from the total award of need-based attorney fees.
III
Following the hearing on the enforceability of the parties’ antenuptial agreement
and in its order on the enforceability of the antenuptial agreement , the district court
awarded wife need-based attorney fees of $20,000. The district court stated that it wi ll
defer a decision to award conduct-based fees “because a need -based award is so clearly
appropriate and will adequately resolve the issue.”
The district court, in its final judgment and decree, found that husband unreasonably
contributed to the length or expense of the proceedings and therefore awarded $24,525 as
conduct-based fees pursuant to Minn. Stat. § 518.14, subd. 1. Both of these attorney fee
awards involve the same hearing, the district court did not otherwise explain why two
separate awards were appropriate for the same hearing, and the record is less than clear that
wife generated the aggregate total of $44,525 in attorney fees for that portion of the case.
We are therefore compelled to conclude that the $24,525 in conduct-based fees awarded in

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the final judgment and decree are duplicative of the $ 20,000 in need-based attorney fees
previously awarded, which husband paid, following the antenuptial hearing . After
subtracting the duplicative fees, $4,525 in conduct-based fees are non-duplicative, and the
total award of conduct-based fees shall be modified to reflect this amount.
Consequently, we conclude that, after subtracting $14,309.50 in duplicative need -
based fees and $20,000 in duplicative conduct -based fees from the original award of
$93,318.10, the final modified judgment of attorney fees we affirm shall be $59,008.60.
Affirmed as modified.