In re the Marriage of: Amy Christine Olmsted, f/k/a Amy Christine Zarbok v. William Scott Zarbok ( 2016 )

This opinion will be unpublished and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
A15-0973
In re the Marriage of: Amy Christine Olmsted,
f/k/a Amy Christine Zarbok, petitioner,
Appellant,
vs.
William Scott Zarbok,
Respondent.
Filed February 8, 2016
Affirmed
Johnson, Judge
Washington County District Court
File No. 82-FA-08-2686
Amy C. Olmsted, Scandia, Minnesota (pro se appellant)
Jeffrey M. Bruzek, St. Paul, Minnesota (for respondent)
Considered and decided by Johnson, Presiding Judge; Larkin, Judge; and Harten,
Judge.
UNPUBLISHED OPINION
JOHNSON, Judge
Amy Christine Olmsted is bound by obligations related to real property that was
awarded to her former husband, William Scott Zarbok, in their dissolution proceeding

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
approximately seven and a half years ago. She wishes to be free of any encumbrances or
obligations related to his property and has brought successive motions before the district
court seeking various forms of relief. In her latest motion, she requested that the district
court transfer title in the property from Zarbok to her so that she may sell the property and
thereby obtain the release of a pending mortgage and the discharge of a related liability on
a loan secured by the mortgage. The district court denied the motion on the grounds that
the relief sought would be inconsistent with the dissolution decree and that she has other
potential remedies. We conclude that the district court did not abuse its discretion in its
ruling on Olmsted’s motion and, therefore, affirm.
FACTS
Olmsted and Zarbok were married in September 2005. Their marriage was
dissolved in June 2008. The terms of the judgment and decree are based on a marital
termination agreement (MTA), which Olmsted and Zarbok executed and filed with the
district court.
Among other things, the judgment and decree awarded Zarbok “all right, title, and
interest in and to” the parties’ former homestead, a rural property in Afton known as
Majestic Pines Farm, “free from any claim of [Olmsted] to any interest therein.” The
judgment and decree also required Zarbok to pay Olmsted $250,000 as a property
equalizer. Until the equalizer payment was made, the parties were to continue to own
Majestic Pines Farm as joint tenants. After the equalizer payment was made, Olmsted was
required to give Zarbok a quit-claim deed with respect to the property, and she did so.
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At the time of dissolution, there were two outstanding loans secured by mortgages
on the property: a loan from Washington Mutual Bank (which later was acquired by
JPMorgan Chase) with a balance of approximately $1,500,000, and a loan from Bank
Cherokee with a balance of approximately $250,000. The judgment and decree provided
that Zarbok “shall be responsible for, indemnify and hold [Olmsted] harmless from all
expenses of said homestead, including but not limited to mortgage and loan payments,
mechanic’s liens, real estate taxes, insurance, and utilities.” The judgment and decree
further provided that Zarbok “shall attempt to remove [Olmsted’s] name from any
mortgages associated with the homestead and property, in good faith.”
The parties have had numerous disputes concerning the farm since the judgment and
decree was entered. Olmsted first sought relief from the district court, with the assistance
of counsel, in November 2008 because Zarbok had not made the equalizer payment. The
district court ordered him to do so, and he made the payment in February 2009, thereby
acquiring a fee interest in the farm. Olmsted sought relief a second time (appearing pro se
then and thereafter) in June 2009 because Zarbok had not removed her from the mortgage
loan with Bank Cherokee and was in default on the mortgage loan, which allowed the bank
to obtain a judgment against her of approximately $275,000. The district court ordered
Zarbok to remove Olmsted’s name from the Bank Cherokee mortgage by January 15, 2010.
Olmsted sought relief a third time in January 2010 because Zarbok had not accomplished
the removal of Olmsted’s name from the Bank Cherokee mortgage by the deadline in the
district court’s prior order. Olmsted requested that the district court order the sale of the
farm or, alternatively, order that the farm be deeded to her. The district court denied the
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motion on the ground that the relief sought would be an improper modification of the
property division in the judgment and decree. Olmsted sought relief a fourth time in August
2013 after Bank Cherokee sought to execute on its judgment against her. She requested
that Zarbok be held in contempt of court and that she either be released of all liabilities
related to the farm or that Zarbok be required to deed the farm to her. The district court
did not grant Olmsted the relief she sought but required Zarbok to defend her against Bank
Cherokee’s enforcement action or reimburse her for her attorney fees. Olmsted sought
relief a fifth time in October 2014 after Bank Cherokee docketed a judgment against her of
approximately $318,000. She requested essentially the same relief that she requested in
her fourth motion. The district court denied Olmsted the relief she sought but granted her
a judgment against Zarbok in the amount of approximately $324,000 to account for
Zarbok’s obligation to indemnify her for her liability to Bank Cherokee and for her attorney
fees.
The district court order at issue in this appeal resolved Olmsted’s sixth motion,
which she brought in May 2015. Olmsted argued that her ongoing mortgage obligation
and Bank Cherokee’s judgment against her have had a negative impact on her credit rating,
her home insurance rates, and her ability to refinance her own home mortgage. She
requested that the district court enforce her judgment against Zarbok and again requested
that Zarbok be required to transfer title in the farm to her. At a hearing on the motion, the
district court reiterated that it would not disturb the judgment and decree by transferring
title in the farm to Olmsted. The district court noted that Olmsted may have the ability to
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execute on her judgment against Zarbok by foreclosing on the farm or on other property
owned by Zarbok. Ultimately, the district court denied the motion. Olmsted appeals.
DECISION
Olmsted, appearing pro se, argues that the district court erred by denying the motion
she filed in May 2015. Her appeal raises two issues.
A. Implementing, Enforcing, or Clarifying Judgment and Decree
The first issue is whether the district court erred by denying Olmsted’s request to
award her title in the farm as a means of implementing, enforcing, or clarifying its judgment
and decree.
“‘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.’” Nelson v. Nelson, 806 N.W.2d 870, 871 (Minn.
App. 2011) (alteration in original) (quoting Redmond v. Redmond, 594 N.W.2d 272, 275
(Minn. App. 1999)). “An order implementing or enforcing a dissolution decree does not
affect the parties’ substantive rights when it does not increase or decrease the original
division of marital property.” Id. This court applies an abuse-of-discretion standard of
review to a district court’s ruling on a request to implement, enforce, or clarify the terms
of a judgment and decree. Id.
In this case, the judgment and decree expressly grants Zarbok title to the farm, “free
from any claim of [Olmsted] to any interest therein.” Given this language, an order
requiring the transfer of the farm to Olmsted would not “implement, enforce, or clarify”
the judgment because it would contradict the clear language of the judgment and decree.
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See id. Transferring title from Zarbok to Olmsted would increase Olmsted’s property
award and decrease Zarbok’s property award. See id. The relief sought by Olmsted would
“affect the parties’ substantive rights” and, thus, would not be a proper implementation,
enforcement, or clarification of the judgment and decree. See id. Accordingly, the district
court did not err by declining to grant relief on this basis.
B. Reopening Judgment and Decree
The second issue is whether the district court erred by denying Olmsted’s request to
reopen and amend the judgment and decree by granting her title to the farm.
“Subject to the right of appeal, a dissolution judgment and decree is final when
entered, unless in a timely motion a party establishes a statutory basis for reopening the
judgment and decree.” Thompson v. Thompson, 739 N.W.2d 424, 428 (Minn. App. 2007).
The statutory bases for reopening a judgment and decree are enumerated in section
518.145, subdivision 2, of the Minnesota Statutes. Those statutory bases provide the “sole
relief from the judgement and decree.” Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997).
The only statutory basis for reopening a judgment and decree that is potentially
relevant to this appeal provides, “On motion and upon terms as are just, the court may
relieve a party from a judgment and decree . . . [if] it is no longer equitable that the
judgment and decree or order should have prospective application.” Minn. Stat. § 518.145,
subd. 2(5) (2014). This provision “is not a catchall provision.” Harding v. Harding, 620
N.W.2d 920, 924 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001). Rather, this
provision “must be employed when injustice in the prospective application of a divorce
decree is due to the development of circumstances substantially altering the information on
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a topic that was accepted earlier, when the subject was addressed in a marital-termination
agreement and in an ensuing judgment.” Id. “The moving party must present more than
merely a new set of circumstances or an unforeseen change of a known circumstance to
reopen a judgment and decree.” Thompson, 739 N.W.2d at 430-31. This court applies an
abuse-of-discretion standard of review to a district court’s ruling on a request to reopen a
judgement and decree. Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996).
Olmsted contends that continuing adherence to the terms of the judgement and
decree is unjust because her liability on the mortgages and on Bank Cherokee’s judgment
is causing her various types of harm in her financial affairs, to the point that she is unable
to “move forward in life.” She contends that the district court should have reopened and
amended the judgment and decree and granted her title to the farm in order to remedy those
inequities. Olmsted’s contention is in tension with the requirement that relief be based on
a “development of circumstances substantially altering the information on a topic that was
accepted earlier.” Harding, 620 N.W.2d at 924. It appears that the parties contemplated
the possibility that Olmsted might remain obligated on the mortgage loan with Bank
Cherokee. The judgment and decree required Zarbok merely to “attempt to remove
[Olmsted’s] name from any mortgage associated with the homestead and property, in good
faith.” (Emphasis added). Furthermore, the judgment and decree specified a remedy for
any ongoing obligation by Olmsted with respect to the farm, namely, that “[Zarbok] shall
be responsible for, indemnify, and hold [Olmsted] harmless from all expenses associated
with said homestead, including but not limited to mortgage and loan payments.” These
provisions of the judgment and decree provided the district court with a basis for
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concluding that Olmsted had not shown an unforeseen change in circumstances. See id.
In addition, the district court denied relief in part because it previously had entered
judgment in favor of Olmsted and against Zarbok in the amount of approximately $324,000
and was of the belief that Olmsted had not exhausted her remedies with respect to that
judgment. For these reasons, the district court did not abuse its discretion by declining to
reopen the judgment and decree.
The foregoing analysis should not be interpreted as foreclosing the possibility of
some form of relief at some time in the future. The above-mentioned provisions of the
judgment and decree concerning the Bank Cherokee mortgage likely were not intended to
operate indefinitely. Likewise, the circumstances in which Olmsted finds herself today
likely cannot be justified indefinitely. One basic goal of a stipulated judgment and decree
is to provide “finality” and “to bring resolution to what frequently has become an
acrimonious relationship between the parties.” Shirk, 561 N.W.2d at 521-22. That goal is
not being realized in this case. Although the courts rarely find grounds to reopen a
judgment and decree, there are circumstances in which such relief is proper. See, e.g.,
Harding, 620 N.W.2d at 924 (reversing district court’s denial of motion to reopen judgment
and decree to determine fair distribution of property because information arising after MTA
substantially altered information upon which MTA was based). We express no opinion as
to whether such relief ultimately is appropriate in this matter because the answer to that
question depends on the evidence and arguments that are presented to the district court,
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which is best suited to analyze the relevant issues and determine whether the judgment and
decree “is no longer equitable.” See Minn. Stat. § 518.145, subd. 2(5).
Affirmed.
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