In re the Marriage of: Holly v. Anderson v. Derrik T. Anderson ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0926
A14-1596
In re the Marriage of:
Holly V. Anderson, petitioner,
Respondent,
vs.
Derrik T. Anderson,
Appellant.
Filed May 18, 2015
Affirmed in part, reversed in part, and remanded
Halbrooks, Judge
Scott County District Court
File No. 70-FA-09-14473
Mark A. Olson, Olson Law Office, Burnsville, Minnesota (for respondent)
Kay Nord Hunt, Lommen Abdo, P.A., Minneapolis, Minnesota; and
Shannon M. Bixby-Pankratz, Moss & Barnett, Minneapolis, Minnesota (for appellant)
Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and
Stoneburner, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
HALBROOKS, Judge
In this renewed and consolidated appeal after remand in a marriage-dissolution
dispute, appellant asserts that the district court erred by amending the determination of
his gross income, awarding respondent $1,000 per month in permanent spousal
maintenance, finding appellant in contempt for nonpayment of spousal maintenance, and
awarding respondent conduct-based attorney fees. We affirm in part, reverse in part, and
remand.
FACTS
Appellant Derrik T. Anderson and respondent Holly Virginia Anderson were
married in 1989. After separating in 2009, they entered into a partial stipulation
concerning custody of their minor child, parenting time, and health insurance, and went
to trial in late 2010 to resolve spousal maintenance, child support, and limited issues of
property division. After a three-day trial, the district court found that appellant’s average
gross monthly income as a cement finisher in 2010 was $3,980, that “side jobs” are a
“potential source of additional income” for him in the future, and that his claimed
monthly expenses were $4,800. Respondent is a technology assistant in a school district.
The district court found that her gross monthly income was $2,112.70 and her claimed
monthly expenses were $3,215. The 2011 judgment and decree required appellant to pay
$1,000 per month in permanent spousal maintenance and respondent to pay $113 per
month in child support. Both parties appealed, and we affirmed in part, reversed in part,
2
and remanded. Anderson v. Anderson, No. A11-1224, 2012 WL 3023433 (Minn. App.
July 23, 2012) (Anderson I), review denied (Minn. Oct. 16, 2012).
In Anderson I, we concluded that (1) the district court did not err by extrapolating
appellant’s annual gross income from his year-to-date paystubs but did err by considering
future income from potential side jobs in determining the spousal-maintenance award
(I.A.1); (2) the district court did not err by not imputing income to appellant based on
potential side jobs or by not determining his gross income based on an average of the past
11 years (I.A.2); (3) the district court erred by failing to make findings about the parties’
reasonable expenses and failing to base its determination on the appropriate statutory
factors (I.C); and (4) the district court did not err by determining that appellant’s income
for child-support purposes was $3,980 per month (II.A), but that its worksheet
calculations of child support were flawed (II.D). We affirmed in part, reversed in part,
and remanded “for further proceedings on the issues discussed above in parts I.A.1, I.C.,
and II.D.”
On remand, appellant requested that the district court1 proceed without reopening
the record. Respondent opposed appellant’s request, attaching a newly obtained, state-
issued wage summary showing that appellant’s actual 2010 reported gross income was
nearly $10,000 more than he had represented to the district court based on the paystubs
offered at trial. Respondent later moved to reopen the judgment based on fraud. The
district court ordered an evidentiary hearing, stating, “[Respondent’s] Motion to Reopen
1
Because the district court judge who conducted the trial had retired while the appeal
was pending, the case was reassigned on remand.
3
the Record based on fraud on the part of [appellant] is GRANTED.” The district court
also found that the record contained “sufficient information . . . to make the necessary
findings dictated by” this court, but because the record would be reopened based on
fraud, the district court would “handle the remand, fraud, and [other] issues at [a single
hearing].”
After the hearing, the district court found that appellant’s 2010 gross annual
income was $62,591 ($5,216 monthly), which was $17,446 more than he had represented
at trial. The district court relied on appellant’s actual reported gross income and also
employed a seven-year average to estimate appellant’s income from side jobs. The
district court noted that
[d]uring trial, [appellant] claimed that his income was down
due to the bad economy and less work available to him,
however his 2010 tax return indicates that his income was
similar to what it had been in previous years. Moreover, his
timesheets . . . showed an increase in hours worked in the
month immediately following the original trial.
The district court also reconsidered the parties’ monthly expenses and found that
while respondent’s budget was “austere,” appellant’s should be reduced by $600 per
month to $4,200. The district court awarded $1,000 in permanent monthly spousal
maintenance to respondent and increased respondent’s child-support obligation to $363
per month as a result of the maintenance award. The order provides that appellant may
offset his maintenance obligation by $200 per month to recoup accrued unpaid child
support.
4
Both parties moved for amended findings, and the district court denied both
motions. The district court expressly rejected respondent’s request for a finding of fraud,
stating, “The Court did not make a finding of Fraud, and accordingly did not include such
a determination in the Order.” The district court did not enter judgment on its amended
order for spousal maintenance and child support.
Respondent later moved for a finding of constructive civil contempt based on
appellant’s continued nonpayment of spousal maintenance, an order for judgment on his
unpaid spousal maintenance (offsetting her unpaid child support), and an order requiring
appellant to maintain a life-insurance policy as security for his past and future
maintenance obligations. The district court granted the requested relief, found appellant
in contempt, ordered entry of judgment against appellant on his unpaid spousal
maintenance (less respondent’s unpaid child support), ordered him to obtain a life-
insurance policy to secure his obligations, and awarded respondent $7,162.50 in attorney
fees and $227 in costs.
Appellant filed a notice of appeal of the district court’s amended order on spousal
maintenance and child support and its order denying his motion for amended findings.
We dismissed the appeal as premature and directed the district court to enter judgment.
On Friday, May 30, 2014, appellant moved (without including a hearing date) to modify
spousal maintenance based on a substantial change in financial circumstances and to
vacate the $7,162.50 contempt-based attorney-fees award. On Monday, June 2, the
district court entered judgment on its amended spousal-maintenance and child-support
order, now the amended judgment and decree.
5
On June 4, appellant filed a notice of appeal of the district court’s contempt, life-
insurance, and attorney-fees order and its amended judgment and decree. The next day,
appellant filed an amended motion to modify spousal maintenance, setting a hearing date
in July. He later rescheduled the hearing at least once. Respondent responded by serving
a notice of intent to seek sanctions based on the motion to modify, which appellant
countered by filing a motion to compel discovery, for leave to exceed discovery limits,
and for attorney fees. After a combined hearing, the district court reserved appellant’s
motion to modify spousal maintenance pending the outcome of his appeal of the existing
award, denied his discovery motion, awarded an additional $5,139.50 to respondent in
conduct-based attorney fees, and denied all other requested relief. Appellant then filed a
notice of appeal of the motion-practice-based attorney-fees award and moved to
consolidate his appeals, which we granted.
DECISION
I.
Appellant challenges the district court’s amended determination of his gross
income, and consequently its spousal-maintenance award, arguing that the district court
erred on remand by modifying the determination of his gross income that we had
affirmed in Anderson I. On remand, the district court is charged with the duty of
faithfully executing the instructions of the appellate court. Halverson v. Vill. of
Deerwood, 322 N.W.2d 761, 766 (Minn. 1982). We review a district court’s compliance
with remand instructions for an abuse of discretion. State ex rel. Swan Lake Area
6
Wildlife Ass’n v. Nicollet Cnty. Bd. of Cnty. Comm’rs, 799 N.W.2d 619, 631 (Minn. App.
2011).
In Anderson I, we remanded “for further proceedings on the issues discussed
above in parts I.A.I., I.C., and II.D.” 2012 WL 3023433, at *8. We specifically
concluded that “the district court erred when determining the amount of spousal
maintenance” and stated that the district court on remand “should make explicit findings
about the parties’ respective reasonable expenses, should acknowledge and consider the
resulting monthly deficit of each party, and should state reasons for its award that are
based on the [Minn. Stat. § 518.552, subd. 2 (2010)] factors.” Id. at *5. We also
concluded that the district court did not err by (1) extrapolating appellant’s annual gross
income from evidence of his year-to-date income, (2) not imputing income based on
potential side jobs, or (3) not determining appellant’s income based on an average of past
years of work history. Accordingly, we did not charge the district court on remand with
making a new determination of appellant’s gross income, and the district court exceeded
the scope of our remand by doing so. Because the amended finding of appellant’s gross
income was not within the scope of remand, we next consider whether there was another
basis on which the district court could have reopened the judgment in this respect.
On remand, respondent moved to reopen the judgment based on fraud, attaching
evidence tending to show that appellant’s actual 2010 reported income was
approximately $10,000 more than he had claimed at trial. “A decree of dissolution of
marriage . . . is final when entered, subject to the right of appeal,” unless a party
establishes in a timely motion a statutory basis for reopening the judgment and decree.
7
Minn. Stat. § 518.145, subds. 1, 2 (2014). The statutory bases provided in Minn. Stat.
§ 518.145, subd. 2, include ordinary fraud and fraud upon the court. Thompson v.
Thompson, 739 N.W.2d 424, 428 (Minn. App. 2007). “The moving party bears the
burden of establishing a basis to reopen the judgment and decree.” Id.“A district court may summarily dispose of a fraud claim . . . only where there is
no genuine issue of material fact in dispute and where a determination of the applicable
law will resolve the controversy.” Doering v. Doering, 629 N.W.2d 124, 130 (Minn.
App. 2001) (quotation omitted), review denied (Minn. Sept. 11, 2001). Based on
respondent’s prima facie showing of fraud, the district court properly granted an
evidentiary hearing on the issue of appellant’s 2010 gross income.
After considering the evidence presented, the district court declined to make a
finding of fraud. The district court nevertheless amended the finding of appellant’s 2010
gross income that we had affirmed in Anderson I. Because appellant’s gross income was
outside the scope of remand and the district court did not reopen the judgment based on a
finding of fraud, we conclude that the district court lacked a basis to make a new finding
of appellant’s gross income. We therefore conclude that the district court abused its
discretion by doing so, and we reverse the amended judgment and decree on that basis.
On remand, the district court is instructed to reconsider its spousal-maintenance award,
and therefore its child-support award, using the district court’s original finding that
appellant’s gross monthly income is $3,980. But we note that nothing in this decision
prevents respondent from seeking a modification of the spousal-maintenance award.
8
II.
Appellant correctly argues that our reversal of the spousal-maintenance award also
requires the reversal of the contempt finding for failing to comply with that order. “Civil
contempt proceedings are designed to induce future performance of a valid court order,
not to punish for past failure to perform.” Engelby v. Engelby, 479 N.W.2d 424, 426
(Minn. App. 1992). A civil contempt proceeding therefore falls “with the reversal or
other annulment of the order disobeyed.” Red River Potato Growers’ Ass’n v. Bernardy,
128 Minn. 153, 156, 150 N.W. 383, 384 (1915).
III.
Appellant argues that the district court abused its discretion by ordering him to
obtain a life-insurance policy to secure his spousal-maintenance obligation without
making findings about his insurability or the cost of the premiums. “The [district] court
has discretion to determine whether the circumstances justifying an award of
maintenance also justify securing it with life insurance.” Maeder v. Maeder, 480 N.W.2d
677, 680 (Minn. App. 1992) (quotation omitted), review denied (Minn. Mar. 19, 1992);
see also Minn. Stat. § 518A.71 (2014) (“[T]he court may require sufficient security to be
given for the payment of [maintainance] . . . .”). The Minnesota Supreme Court has
emphasized the importance of making factual findings regarding the obligor’s insurability
and the cost of insurance when ordering life insurance as security. Lee v. Lee, 775
N.W.2d 631, 642-43 (Minn. 2009). The district court here made no such findings before
imposing this requirement. We therefore conclude that the district court erred. We
remand for reconsideration of the order for life insurance in light of our spousal-
9
maintenance ruling and, if the district court again orders life insurance as security, for
explicit findings on insurability and the cost of insurance.
IV.
Appellant argues that the district court abused its discretion by awarding conduct-
based attorney fees to respondent in connection with (1) her contempt motion for
nonpayment of spousal maintenance and (2) his motion to modify spousal maintenance,
to vacate the contempt-based attorney-fees award, for leave to exceed discovery limits,
and to compel discovery. Under Minnesota law, the district court may award conduct-
based attorney fees “against a party who unreasonably contributes to the length or
expense of [a dissolution] proceeding.” Minn. Stat. § 518.14, subd. 1 (2014). Conduct-
based attorney-fee awards “are discretionary with the district court.” Szarzynski v.
Szarzynski, 732 N.W.2d 285, 295 (Minn. App. 2007); see also Sharp v. Bilbro, 614
N.W.2d 260, 264-65 (Minn. App. 2000) (referring to “the breadth of the district court’s
discretion in awarding conduct-based attorney fees” and finding no abuse of its “broad
discretion”), review denied (Minn. Sept. 26, 2000).
Contempt-Motion-Based Fees
The district court found that appellant’s “refusal to comply with the Court Order to
pay spousal maintenance to [respondent] has unreasonably contributed to the length and
expense of the proceedings, and conduct-based attorney[] fees are appropriate.” The
district court ordered appellant to pay $7,162.50 in attorney fees and $227 in costs, which
it found were reasonably incurred by respondent in bringing her contempt motion.
Having reversed the district court’s finding of contempt on the merits, we also reverse the
10
attorney fees awarded in connection with the contempt motion. See Gorz v. Gorz, 552
N.W.2d 566, 570-71 (Minn. App. 1996) (reversing the attorney-fee award after
concluding that the district court erred by finding the appellant’s motion meritless).
Motion-Practice-Based Fees
The district court also awarded attorney fees to respondent based on appellant’s
“pattern of avoiding his Court-ordered support and engaging in voluminous discovery
requests with the apparent intention to burden [respondent] with ongoing legal fees,”
noting that “[t]he Court does not look favorably on these tactics.” Appellant argues that
because the district court could have elected to rule on his motion to modify spousal
maintenance while his appeal of the existing award was pending, the motion to modify
and his related discovery motion were properly filed, and the district court therefore
clearly abused its discretion by awarding attorney fees. He does not argue here that his
motion to vacate the contempt-based attorney fees award was properly pursued in the
district court while he was challenging the same award on appeal.
Appellant relies on Perry v. Perry and Leifur v. Leifur in support of his challenge
to the motion-practice-based attorney-fees award, but neither case analyzes the propriety
of an attorney-fees award. In Perry, we held that because of the paramount importance
of the best interests of the children, a district court retains the authority to rule on a
motion to modify child support while an appeal of the existing order is pending, but the
district court has the discretion to defer its decision until the appeal is decided based on
principles of judicial economy. Perry v. Perry, 749 N.W.2d 399, 403 (Minn. App. 2008).
And in Leifur we held that, irrespective of any agreement of the parties, a modification of
11
spousal maintenance may only be made retroactive to the date of service of notice of the
motion to modify. Leifur v. Leifur, 820 N.W.2d 40, 42-43 (Minn. App. 2012). We
conclude that Perry and Leifur do not bar the district court’s award of conduct-based
attorney fees here.
It is one thing to serve a motion to modify spousal maintenance for purposes of
establishing the date of retroactivity. See id. at 43 (interpreting Minn. Stat. § 518A.39,
subd. 2(e) (2010)). It is quite another to aggressively pursue a ruling on that motion,
request and reschedule hearings, seek leave to exceed discovery limits, file a motion to
compel responses to voluminous discovery, and file motions to vacate an earlier
contempt-based attorney-fees order while simultaneously appealing that award. In light
of the great deference we give to a district court’s decision to award conduct-based
attorney fees, we cannot say that the district court here clearly abused its discretion by
finding that appellant unreasonably contributed to the length or expense of the dissolution
proceeding. We therefore affirm the district court’s award of $5,139.50 in conduct-based
attorney fees.
Affirmed in part, reversed in part, and remanded.
12