In re the Marriage of:

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0636

In re the Marriage of:

Beverly Denise Kossack, petitioner,
Appellant,

vs.

Kenneth Joseph Kossack,
Respondent.

Filed July 10, 2023
Affirmed; motion granted in part
Jesson, Judge

Dakota County District Court
File No. 19AV-FA-10-4315

Julie K. Seymour, Laura June, Seymour Family Law, Lakeville, Minnesota (for appellant)

Susan A. Daudelin, Joani C. Moberg, Minneapolis, Minnesota (for respondent)

Considered and decided by Jesson, Presiding Judge; Smith, Tracy, M., Judge; and
Bryan, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
After over 21 years of marriage and three children together, appellant Beverly
Denise Kossack and respondent Kenneth Joseph Kossack’s marriage was dissolved by the
district court in 2012 through a stipulated judgment. Nearly ten years later, the district
court granted Kenneth’s request to modify his spousal-maintenance obligation, due to
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Beverly’s increased income, and it made the modification retroactive to August 2020. It
also amended Beverly and Kenneth’s 2012 dissolution decree to include a conclusion of
law allocating the children’s uninsured and unreimbursed medical expenses. Beverly
appeals.
Beverly argues that the district court abused its discretion by reducing Kenneth’s
spousal-maintenance obligation and by retroactively applying that modification to his
July 2020 motion because the motion did not include a hearing date. Further, Beverly
contends that the district court erred by amending the 2012 dissolution decree to include a
conclusion of law on the disbursement of the children’s uninsured and unreimbursed
medical expenses. Because Kenneth’s reduced spousal-maintenance obligation is
reasonable, given Beverly’s nearly doubled income, and Kenneth’s July 2020 motion was
properly pending with the district court, the court acted within its discretion by reducing
the spousal-maintenance award and making it retroactive to August 2020. And because
there was a clerical error in the 2012 dissolution decree when a finding of fact did not have
an accompanying conclusion of law, the district court did not err by amending the decree
to fill that gap. Accordingly, we affirm.
FACTS
In fall 2012, Beverly and Kenneth’s marriage was dissolved pursuant to a stipulated
judgment. We call this judgment the 2012 dissolution decree. In relevant part, the decree’s
finding of facts stated that Kenneth’s salary was $185,000 annually with an average annual
bonus of $40,000. The district court then calculated Kenneth’s monthly income at $16,250.
Beverly’s part-time salary was listed as $30,000 annually, and the court determined her
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monthly income to be $2,500. Based on their respective incomes, the district court awarded
Beverly spousal maintenance of $4,300 monthly along with 50% of Kenneth’s annual
bonus, which was approximately an additional $1,667 monthly. And it determined that
Kenneth’s child-support obligation was $1,536 monthly, which would decrease to
$1,060 at the emancipation of one child and terminate altogether at the emancipation of
both children. 1 Additionally, the decree found that “[b]asic child support and
reimbursement of the uninsured and unreimbursed medical and dental costs will
be . . . established pursuant to the Minnesota Child Support Guidelines Calculator.” But
the district court did not make any conclusions of law as to what Kenneth and Beverly’s
obligations were for these uninsured and unreimbursed medical costs.
In the eight years following the dissolution decree, Beverly began working full-time
and Kenneth withheld some money from his spousal- maintenance and child-support
payments by making deductions for various expenses, such as the children’s medical costs.
Additionally, Kenneth’s spousal-maintenance obligation was increased in 2019 to about
$4,770, an approximately 10.9% increase, as the result of a cost-of-living adjustment. But
Kenneth’s child-support obligation terminated in 2019 when Beverly and Kenneth’s
youngest child emancipated. All these events culminated in a series of motions by Kenneth
and Beverly to the district court.

1 Although Beverly and Kenneth had three children, one was already emancipated at the
time of the 2012 dissolution decree. As such, that child was not included in the district
court’s child-support determination.
4
Spousal Maintenance
In July 2020, Kenneth filed a motion to terminate or modify his
spousal-maintenance obligation. Kenneth explained that his request for a modified or
terminated spousal-maintenance obligation was due to Beverly’s increase in annual
income, which ha d “almost doubled” since the 2012 dissolution decree. Subsequently,
Beverly filed a motion to order Kenneth to pay about $26,868 in withheld
spousal-maintenance and child-support payments.
Retroactivity of Spousal-Maintenance Modification
Kenneth’s July 2020 motion did not include a date for a motion hearing. But in
October 2020, Kenneth received a date for a motion hearing and amended his initial motion
to include the scheduled hearing date.
The district court held a hearing on both motions. And in March 2021, the district
court ordered Beverly and Kenneth to participate in mediation to resolve their respective
requests for modification or termination of the spousal-maintenance award and
reimbursement of unpaid spousal-maintenance and child-support payments. The district
court also noted that Kenneth’s July 2020 motion was properly pending, even though it
originally did not include a hearing date, because the COVID-19 pandemic court policies
allowed a shell motion until court staff could schedule a hearing on that motion.
The parties attended mediation. It was unsuccessful. Accordingly, Beverly and
Kenneth renewed their respective requests for reimbursement and modification or
termination of the spousal-maintenance award.
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Amendment to the 2012 Dissolution Decree
Kenneth also requested that the district court amend the 2012 dissolution decree to
correct a clerical error —a finding of fact relating to the allocation of the uninsured and
unreimbursed medical expenses of their children was missing a conclusion of law that
would explain the precise allocation of those expenses between Beverly and himself.
District Court’s Order
In March 2022, the district court modified the spousal-maintenance award,
concluding that Kenneth’s new spousal-maintenance obligation is $3,900 per month, with
0% of his annual bonus income, which was made retroactive to August 2020, due to
Kenneth’s properly filed July 2020 motion. Further, it found that Kenneth had been
overpaying his obligation since the retroactive date and permitted Kenneth to deduct that
overpayment from his spousal-maintenance payments until it is reconciled. The district
court also concluded that the omission of a conclusion of law in the 2012 dissolution decree
was a clerical error and amended the dissolution to include a conclusion of law that
allocated the uninsured and unreimbursed medical costs for the children between Kenneth
and Beverly as 64% to Kenneth and 36% to Beverly.
Beverly appeals.
DECISION
I. The district court acted within its discretion by reducing Kenneth’s
spousal-maintenance obligation.

Beverly argues that the district court abused its discretion in reducing Kenneth’s
spousal-maintenance obligation because it miscalculated her budget at the time of divorce.
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Specifically, Beverly maintains that the district court arrived at a number that was not
supported by the adopted formula to determine her budget, and it failed to consider her tax
obligations and the child-support payments when calculating her monthly budget. 2
In reviewing the district court’s grant of a modification of spousal maintenance, we
apply an abuse-of -discretion standard of review. Madden v. Madden,
923 N.W.2d 688, 696 (Minn. App. 2019). “A district court abuses its discretion in making
such a decision if it makes findings of fact that are not supported by the record, misapplies
the law, or resolves the matter in a manner that is contrary to logic and the facts on record.”
Id. We do not set aside a district court’s determination of income for spousal-maintenance
purposes unless it is clearly erroneous. See Sinda v. Sinda, 949 N.W.2d 170, 175
(Minn. App. 2020) (holding that findings of fact are clearly erroneous when they are
manifestly contrary to the weight of the evidence or not reasonably supported by the
evidence as a whole).
Here, the district court acted within its discretion by modifying the
spousal-maintenance award. As an initial consideration, a district court may only modify

2 Beverly also argues that the district court inaccurately calculated her ability to invest
and her available cash reserves when determining her budget for the
spousal-maintenance-modification calculation. Even if this were true, this error is
harmless. The district court found that Beverly’s reserves from the divorce were
approximately $100,000 and stated that a $25,000 cash-reserve balance was reasonable,
leaving $75,000 for investment, which would add $250 to her monthly income. But the
district court did not add any investment income to Beverly’s monthly income. Rather, the
district court still found Beverly’s monthly income to be about $5,000, which was the same
monthly income Beverly disclosed in an affidavit to the court and at the motion hearing.
As a result, we do not reach the issue of whether investment income should have been
considered by the district court in its determination of the modified spousal-maintenance
award.
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spousal maintenance when there is a substantial change of circumstances since the last time
maintenance was modified or, if it has not been modified, since the maintenance was
originally set. Youker v. Youker, 661 N.W.2d 266, 269 (Minn. App. 2003),
rev. denied (Minn. Aug. 5, 2003). A substantial change of circumstance justifying
modification includes (1) “substantially increased or decreased gross income of
an . . . obligee” that (2) makes the existing spousal-maintenance award unreasonable or
unfair. Minn. Stat. § 518A.39, subd. 2(a)(1) (2022). In 2012, Beverly’s part-time income
was $30,000 annually. But as of 2020, Beverly’s full-time income was approximately
$60,000 annually. The record supports the district court’s ruling that there was a
substantial change in circumstances from Beverly’s —the obligee’s—doubled gross
income since the 2012 dissolution decree.
3
Because there was a substantial change in circumstances that made the existing
spousal-maintenance award unreasonable and unfair, we turn to whether the district court
abused its discretion in its modification of the spousal- maintenance award to $3,900 with
none of Kenneth’s annual bonus, a reduction from the ordered $4,300 in 2012—adjusted
to about $4,770 in 2019—with 50% of Kenneth’s annual bonus. In determining the amount
of the modified spousal-maintenance award, the district court is to consider all eight
statutory factors that apply to the initial award of spousal maintenance, as they exist at the

3 For the first time at oral argument, Beverly asserted that there was not a significant change
in circumstances that warranted a modification of the spousal-maintenance award. Beverly
did not include this argument in her brief or before the district court. As a result, this
argument is forfeited. Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988) (explaining that
an appellate court generally will not consider matters not argued to and considered by the
district court). But we address it here anyway.
8
time of the modification motion. Madden, 923 N.W.2d at 696; see Minn. Stat. § 518.552,
subd. 2(a)-(h) (2022) (listing the eight factors for consideration when determining a
spousal-maintenance amount). The eight factors include:
1. The financial resources of the party seeking maintenance,
including child-support payments;

2. The time necessary to acquire sufficient education or
training to enable the party seeking maintenance to find
appropriate employment;

3. The standard of living established during the marriage;

4. The duration of the marriage;

5. The loss of earnings, seniority, retirement benefits, and
other employment opportunities forgone by the spouse
seeking maintenance;

6. The age and the physical and emotional condition of the
spouse seeking maintenance;

7. The ability of the spouse from whom maintenance is
sought to meet their own needs while meeting those of the
spouse seeking maintenance; and

8. The contributions of each party to the value of the marital
property.

Minn. Stat. § 518.552, subd. 2(a)-(h).
In its March 2022 order, the district court analyzed all eight factors and concluded
that, when balancing the financial needs of obligee Beverly and the ability to pay of obligor
Kenneth, the factors weighed in favor of reducing Kenneth’s spousal-maintenance
obligation over terminating his spousal-maintenance obligation entirely. Specifically, the
district court found that (1) Beverly’s financial resources , with her increased monthly
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income, are still less than her budget and warrant continued spousal maintenance;
(2) Beverly has improved her financial situation and no longer needs as much spousal
maintenance as she did at the time of the 2012 dissolution decree; (3) Beverly and Kenneth
had a high standard of living during their marriage, which supports ongoing spousal
maintenance from Kenneth; (4) even though Beverly worked part-time for the duration of
the marriage, she has since moved to full-time employment, which has improved her
financial position and placed her in a better position to be self-supporting; (5) although
Beverly made sacrifices during her marriage to Kenneth, she has since acquired gainful
employment; (6) given Beverly’s age, she has less than a decade to work and continue
saving for retirement; (7) Kenneth does not challenge his ability to pay monthly spousal
maintenance; and (8) the contributions of the parties since the 2012 dissolution decree
remain unchanged. The record supports the district court’s weighing of these factors.
Accordingly, the court did not abuse its discretion in its determination to reduce Kenneth’s
spousal-maintenance obligation.
Turning to the district court’s calculation of Beverly’s budget, each party advocated
for the application of a different budget—Kenneth asserted that Beverly’s monthly budget
should be about $7,500 and Beverly argued that her budget is about $10,800. Because the
2012 dissolution decree did not provide the basis at which the district court arrived at
Beverly’s budget, the district court here determined that the best method to calculate
Beverly’s 2020 budget would be to add:
(1) her 2012 imputed income;

(2) her 2012 spousal-maintenance award; and
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(3) a percentage increase for the cost-of-living adjustment.

The district court excluded child-support payments from Beverly’s budget because
the modification factors—which include financial resources like child support —are
considered as they exist at the time of the modification motion. Madden,
923 N.W.2d at 696; see Minn. Stat. § 518.552, subd. 2(a). And because all Beverly and
Kenneth’s children were emancipated by 2020, this exclusion was reasonable.
The district court then determined that Beverly’s monthly budget necessary to
maintain her marital standard of living was $8,900.4 The court arrived at this budget after
considering both Kenneth and Beverly’s proposed budgets—which ranged between
$7,500 and $10,800—and the three figures listed above. The district court does not
explicitly explain, given its adopted formula, how it arrived at $8,900 for Beverly’s budget.
But, given that this budget is within the range of advocated budgets, it is reasonable and
was within the district court’s discretion to order.
Still, Beverly contends that the district court abused its discretion in calculating her
budget because, given her income and 2012 spousal-maintenance award, the calculation
does not precisely add up to $8,900. But even if the district court’s calculations do not
precisely match the formula it set out, it does not mean the district court abused its
discretion in determining Beverly’s budget. Because the budget (1) is close to an

4 Adopting the formula provided by the district court, Beverly’s monthly budget for
2020 would be approximately $8,937—about $37 more than the district court’s
calculation—utilizing the figures in the record of Beverly’s 2012 income of $2,500, her
spousal-maintenance award of $4, 770, which includes the 10.9% cost-of-living
adjustment, and $1,667 from Kenneth’s bonus.
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application of the reasonable formula, (2) is reasonably within the confines of both Kenneth
and Beverly’s purported budgets, and (3) was reduced by a fair and reasonable value given
Beverly’s nearly doubled monthly salary, the district court did not clearly err in arriving at
$8,900 for Beverly’s budget. Correspondingly, the modified spousal maintenance of
$3,900— which is Beverly’s monthly award after the subtraction of her 2020 income of
$5,000 from her budget—was within the district court’s discretion to award.
Further, Beverly argues that because the district court did not apply a 16% income
tax rate and did not add child-support payments to her monthly budget, it abused its
discretion. But Beverly did not argue for the application of a 16% tax rate before the district
court. And it appears the district court, similar to the 2012 dissolution decree, used
before-tax figures. Consequently, we do not reach this argument. See Annis v. Annis ,
84 N.W.2d 256, 261 (Minn. 1957) (stating that litigants are bound on appeal by the theory
or theories upon which the action was actually tried below); see also Thiele,
425 N.W.2d at 582.
Nor are we persuaded by Beverly’s argument regarding child support being a part
of her budget calculation. Although Minnesota Statutes section 518.552, subdivision 2(a),
states that the district court is to consider child-support payments as one of its factors for
determining a just spousal-maintenance amount, nowhere does the statute require the court
to include that specific amount when calculating a budget. Rather, the district court is to
consider any additional income a parent may be receiving when considering their financial
resources. The district court did so here.
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In sum, the district court acted within its discretion in modifying Kenneth’s
spousal-maintenance obligation to $3,900, because the record supports its findings that
Beverly had an increase in income that would be considered a substantial change in
circumstances that made the existing spousal maintenance unreasonable and unfair, and
the reduced amount is not against logic or the facts in the record.
II. The district court acted within its discretion by making the modified
spousal-maintenance award retroactive to August 2020.

Beverly asserts, in the alternative, that if the district court acted within its discretion
by modifying Kenneth’s spousal-maintenance obligation, then the modification’s
retroactive date was not within that discretion. She contends that the retroactive date
should be December 2021, not August 2020, because Kenneth’s July 2020 motion was no
longer pending when the district court heard motion arguments in December 2021 and
Kenneth’s renewed motion should govern.
We apply an abuse-of- discretion standard of review for the retroactive appli cation
of a spousal-maintenance modification, as long as the statutory conditions surrounding
retroactive application are met. Kemp v. Kemp, 608 N.W.2d 916, 920 (Minn. App. 2000);
see also Sinda, 949 N.W.2d at 181 (stating that an appellate court “review[s] the district
court’s decisions regarding retroactivity for an abuse of discretion).
Minnesota Statutes section 518A.39, subdivision 2(f) (2022), governs the procedure
for spousal-maintenance modifications and addresses when a spousal-maintenance
modification may be made retroactive. Specifically, this section states:
A modification of support or maintenance, including interest
that accrued pursuant to section 548.091, may be made
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retroactive only with respect to any period during which the
petitioning party has pending a motion for modification but
only from the date of service of notice of the motion on the
responding party and on the public authority if public
assistance is being furnished or the county attorney is the
attorney of record, unless the court adopts an alternative
effective date under paragraph (l).

Minn. Stat. § 518A.39, subd. 2(f) (emphasis added).
Here, the district court did not abuse its discretion by setting the retroactive date of
the modified spousal-maintenance award to Kenneth’s first motion for modification in
July2020. This motion was properly brought and provided notice to Beverly of Kenneth’s
request. Although this motion lacked a hearing date at the time of filing, rule 303.01 of
Minnesota’s General Rules of Practice—which explains the expectations for scheduling
motions and giving notice to other parties—supports the district court’s ruling that this
motion was still properly brought. Rule 303.01(b) states that the notice of motion “shall
state . . . the date, time, and place of the hearing,” and rule 303.01(a) states that “a party
who obtains a date and time for hearing a motion shall promptly give written notice of the
hearing date and time.” Minn. R. Gen. Prac. 303.01(a)-(b) (emphasis added). And
Kenneth provided the date for the hearing as promptly as he could given the COVID-19
pandemic court policies in place at the time of the filing of the motion, which required
parties to first file their motion for relief and thereafter be assigned a date and time by court
administration for their motion to be heard.
Still, Beverly contends that the retroactive date should be December 2021, because
the district court’s March 2021 order implicitly denied the July 2020 motion because it
failed to address and reserve it, citing Anderson v. Anderson. 897 N.W.2d 828, 832
14
(Minn. App. 2017) (explaining that “a district court’s failure to specifically address or
reserve a motion constitutes a denial of that motion” (emphasis added)),
rev. granted (Minn. Aug. 22, 2017) and appeal dismissed (Minn. Jan. 30, 2018). This
argument fails for two reasons. First, the March 2021 order specifically addressed
Kenneth’s July 2020 motion when it stated:
Despite not including a date and time for the Court to hear oral
arguments in [Kenneth’s] July . . . Motion, there was
nonetheless, a motion pending before the Court—which was
filed with the Court in accordance with Dakota County Court
Administration’s practice in light of the COVID-19 global
pandemic.

And second, the district court ordered the parties to mediate on their motions, instead of
ruling on them, which distinguishes Anderson from this case.
In sum, the district court did not abuse its discretion in making the
spousal-maintenance modification retroactive to August 2020 because Kenneth’s
July 2020 motion was properly brought, and the district court’s March 2021 order did not
implicitly deny the July 2020 motion when it ordered the parties to participate in mediation.
III. The district court did not err by amending the 2012 dissolution decree to
include a conclusion of law on the allocation of the children’s uninsured and
unreimbursed medical expenses.

Finally, Beverly contends that the district court erred by (1) determining that the
omission in the 2012 dissolution decree of a conclusion of law on the allocation of the
children’s uninsured and unreimbursed medical costs was a clerical error and (2) by adding
a conclusion of law to the 2012 dissolution decree because it is “not apparent upon the face
15
of the record” that the parties intended to split their children’s uninsured and unreimbursed
medical costs.5 See Wilson v. City of Fergus Falls, 232 N.W. 322, 323 (Minn. 1930).
Generally, we review de novo whether a district court has the statutory authority to
amend a dissolution decree. See Pooley v. Pooley, 979 N.W.2d 867, 874-76 (Minn. 2022)
(allowing a district court to amend a dissolution decree as long as it is not to change what
has been decreed but rather to decide what was left undecided). In similar fashion, clerical
errors in a district court order, pursuant to rule 60.01 of the Minnesota Rules of Civil
Procedure, are reviewed de novo. Brazinsky v. Brazinsky, 610 N.W.2d 707, 710
(Minn. App. 2000) (“Questions of civil procedure are issues of law upon which [appellate
courts] owe[] no deference to the district court’s decision.”). Because the lack of a
conclusion of law to coincide with a finding of fact does not “change what has been
decreed” and appears to be a clerical error, we review the district court’s amendment to the
2012 dissolution decree de novo.
Based on this de novo review, we conclude that the district court did not err in
amending the 2012 dissolution decree to include a conclusion of law that coincides with
the finding of fact regarding the uninsured and unreimbursed medical costs of Beverly and
Kenneth’s children. The record supports that its exclusion was a clerical error.

5 Beverly also argues that rule 60.02 of the Minnesota Rules of Civil Procedure governs
the mistake in the 2012 dissolution decree — not rule 60.01 for clerical errors—because it
was attorney error. And consequently, the parties are time-barred from seeking correction
of this mistake because rule 60.02 only allows motions to correct mistakes within one year
of the judgment. This argument fails. Rule 60.02 expressly states that it does not apply to
marriage dissolution decrees. And although Minnesota Statutes section 518.145 (2022)
provides an avenue to relief in family law analogous to rule 60.02, Beverly did not invoke
this statute. Accordingly, we do not address what relief, if any, it may allow here.
16
A clerical error in a judgment is defined in rule 60.01 of the Minnesota Rules of
Civil Procedure as an oversight or omission , and the rule grants the district court the
authority to correct the clerical error at any time at its own initiative. And Minnesota
Statutes section 518A.41, subdivision 5(a) (2012), 6 regarding child support and
unreimbursed and uninsured medical expenses, states:
Unless otherwise agreed to by the parties and approved by the
court, the court must order that the cost of health care coverage
and all unreimbursed and uninsured medical expenses under
the health plan be divided between the obligor and obligee
based on their proportionate share of the parties’ combined
monthly [parental income for determining child support
(PICS)].

(Emphasis added.) The 2012 dissolution decree has a finding of fact that states “[b]asic
child support and reimbursement of the uninsured and unreimbursed medical and dental
costs will be . . . established pursuant to the Minnesota Child Support Guidelines
Calculator,” which is analogous to PICS. Accordingly, because the statute requires the
district court to order the cost of the uninsured and unreimbursed medical expenses per a
PICS allocation and the 2012 dissolution decree shows Beverly and Kenneth’s intent to do
just that, the lack of the conclusion of law explaining that allocation appears to be an
accidental omission. The district court has the authority to correct this omission here.
Still, Beverly argues that the district court’s consideration of a PICS worksheet that
Kenneth provided before the December 2021 hearing was in error because the worksheet
was not part of the 2012 dissolution decree. We are not persuaded . The parties do not

6 The 2012 statute applies to this dispute because the judgment was entered in 2012. But
there have been no amendments to this statute section’s subdivision since 2012.
17
dispute the values used within the PICS worksheet. Thus, it is not clear that any error that
may have occurred was prejudicial. See Minn. R. Civ. P. 61 (requiring harmless error to
be ignored); Goldman v. Greenwood, 748 N.W.2d 279, 285 (Minn. 2008) (applying rule 61
in a family law appeal); see also Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (noting
that appellate courts will not reverse a district court if it reached an affirmable result for
the wrong reasons). As such, Beverly has not shown that the district court’s allocation of
the children’s uninsured and unreimbursed medical expenses of 64% for Kenneth and 36%
for Beverly, per the PICS worksheet, was done in error.
Overall, the district court did not err in amending the 2012 dissolution decree
because, given the finding of fact in the decree and the statute then in effect on this issue,
the omission of the allocation of uninsured and unreimbursed medical expenses was a
clerical error that the district court had the authority to correct.
IV. Kenneth’s motion to strike is granted in part.
In April 2023, Kenneth filed a motion to strike portions of Beverly’s appellate
briefs. He argues that her briefs make factual allegations that are not part of the record on
appeal, contain new arguments never presented to the district court, and include documents
that were not filed with the district court and are thus not part of the record on appeal. We
address each contested part of Beverly’s brief in turn.
Beverly’s Principal Brief and Reply Brief’s Footnotes
Kenneth asserts that in two footnotes—footnote one from Beverly’s principal brief
and footnote one from her reply brief —Beverly’s characterization of the transcribed
“unreportable crosstalk” from the December 2021 motion hearing should be stricken.
18
The Minnesota Rules of Civil Appellate Procedure govern this issue.
Rule 110.03 summarizes the process the parties must adhere to if there is a statement of
the proceedings when no report was made or when the transcript is unavailable. The
“unreportable crosstalk” transcribed within the December 2021 motion hearing fits into
this category. This rule allows the appellant to prepare a statement of the proceedings from
their recollection, but only if they complete the following steps: file the original proposed
statement with the district court administrator and the clerk of the appellate courts, serve a
copy on the respondent to allow for objections or proposed amendments, and provide the
district court with a copy to approve or modify. Minn. R. Civ. App. P. 110.03. Only a
statement approved by the district court may be included in the record.
Because Beverly did not follow rule 110.03’s procedure in her recollection of the
“unreportable crosstalk” included in her footnotes, it is not part of the record and therefore
it is not appropriately part of her briefs. Accordingly, we strike the two footnotes.
Beverly’s Addendum Letter and Principal Brief Argument
Kenneth contends that the letter in Beverly’s addendum was not filed with the
district court, should not be a part of the appellate record, and the corresponding portions
of her principal brief should be stricken as well. We do not need to address Kenneth’s
motion regarding these parts of Beverly’s brief and addendum because neither the letter
nor her corresponding argument includes information that the appellate record did not
19
otherwise contain—such as the settlement conference date, which is included in the
2012 dissolution decree.
In sum, because the spousal-maintenance modification was reasonable and the
July 2020 motion was properly pending with the district court, the district court acted
within its discretion in reducing Kenneth’s spousal-maintenance obligation and making it
retroactive to August 2020. And because there was a clerical error in the 2012 dissolution
decree, the district court did not err in amending the decree to include an omitted conclusion
of law on the allocation of the children’s uninsured and unreimbursed medical expenses.
Finally, because Beverly did not follow appellate procedure in her briefs’ statements
regarding the “unreportable crosstalk” at the motion hearing, we grant Kenneth’s motion
to strike these footnotes. But we deny Kenneth’s motion to strike the other portions of
Beverly’s brief because it is unnecessary.
Affirmed; motion granted in part.