In re the Marriage of: Vitamin v. Misha Gordin

This opinion will be unpublished and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
A14-1995
In re the Marriage of:
Vitamin, petitioner,
Appellant,
vs.
Misha Gordin,
Respondent.
Filed December 7, 2015
Affirmed
Reilly, Judge
Stearns County District Court
File No. 73-F6-05-005053
Christina L. Kilby, Bradford Law Office, Ltd., Hutchinson, Minnesota (for appellant)
Charles M. Schiff, St. Cloud, Minnesota (for respondent)
Considered and decided by Schellhas, Presiding Judge; Rodenberg, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
REILLY, Judge
Appellant-wife Vitamin challenges the district court’s division of property with
respondent-husband Misha Gordin in this marital-dissolution case. Because we
determine that a portion of appellant’s appeal is time-barred and the district court did not
abuse its discretion on the remaining issues, we affirm.
FACTS
The facts of this case are set forth in an earlier appeal. Vitamin v. Gordin, No.
A08-1565, 2009 WL 4251054, at * 1 (Minn. App. Dec. 1, 2009). The district court
issued a judgment in April 2008 and an amended judgment in July 2008 dissolving the
parties’ marriage and dividing the parties’ marital property, including husband’s artwork.
An appraiser inventoried the artwork and determined that, “[o]f all three methods of
gathering information regarding [husband’s] inventory, [the appraiser] consider[ed]
[husband’s] personal inventory sheets to be the most reliable.” The district court
classified approximately 522 works of art as marital property based upon the appraisal,
but determined that certain images designated as artist proofs were committed to
husband’s children according to the parties’ agreement.1 The district court equitably
divided the remainder of the artwork between the parties. The district court ordered the
parties to divide the artwork either by agreement or through a neutral third party within
90 days of the date of entry of judgment. Wife appealed the judgment, challenging the
district court’s factual findings regarding the in-kind division of the artwork. We
affirmed, holding that the district court “went to considerable lengths to assure an equal
in-kind division of the marital art” and we “[could not] say that an equal in-kind division
of [husband’s] marital art is an abuse of its broad discretion, especially where that illiquid
art constituted the bulk of the parties’ marital estate.” Id. at * 7.
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The parties did not provide the district court with the number of artist proofs.
2
The district court issued an order in February 2013, finding that the parties had not
divided the marital property as ordered in the 2008 amended judgment. The district court
found that the appraiser’s inventory of husband’s artwork “provide[d] the most complete
and accurate list of the marital property to be divided” and ordered the appointment of a
third-party neutral to divide the marital property in the art inventory, based upon the
appraisal. When the parties continued to disagree, the district court issued an order in
July 2013 appointing a third-party neutral and ordering a method of division which
involved laying the artwork facedown and allowing each party to take turns selecting
from the pile until each piece of art had been selected.
In May 2014, wife moved for an order directing husband to provide the artwork
for inspection and seeking a “numerical formula” for the division of the artwork. Wife
also objected to the district court’s 2008 order regarding the artist proofs. Husband filed
a responsive motion stating that there were only 441 works of art for division based upon
his records, “which [the appraiser] accepted as accurate in the preparation of her
appraisal.” Wife argued that there were more than 441 works of art and demanded a
specific number. The district court judge declined, stating that it would be like “pulling a
number out of the air,” as neither party had provided the court with information about the
number of works of art.
The district court denied wife’s motion in an October 2014 order. The district
court stated that it had previously ruled on the method of division of the artwork in its
July 2013 order, and wife failed to timely file a request for modification. The district
court ordered husband to produce “all marital images available to him . . . but not less
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than the 441 images acknowledged” for division pursuant to the method outlined in the
July 2013 order. The district court underscored that the method of division did not alter
the July 2008 amended judgment, which awarded husband and wife one-half of the
artwork, less the artist proofs. The district court ordered the division to take place within
120 days of the date of the order and refused to entertain additional motions or requests
for relief until after the division had been accomplished. This appeal followed.
DECISION
Wife raises three arguments on appeal. First, she claims that the October 2014
order alters the rights of the parties established in the July 2008 amended judgment.
Second, wife challenges an award in the July 2008 amended judgment relating to the
artist prints. Lastly, wife claims that the district court erred in its division of marital
property. We address each argument in turn.
ANALYSIS
I.
Wife argues that the district court’s October 2014 order impermissibly modified
the July 2008 amended judgment. In a marital dissolution action, the district court must
make a “just and equitable” division of marital property. Minn. Stat. § 518.58, subd. 1
(2014). The district court “may not modify a division of property after the original
judgment has been entered and the time for appeal has expired,” although it “may issue
appropriate orders implementing or enforcing specific provisions of the dissolution
decree.” Erickson v. Erickson, 452 N.W.2d 253, 255 (Minn. App. 1990); see also
Gossman v. Gossman, 847 N.W.2d 718, 724 (Minn. App. 2014) (prohibiting district court
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from modifying property division); Arzt v. Arzt, 361 N.W.2d 135, 136-37 (Minn. App.
1985) (same).
In the July 2008 amended judgment, the district court ordered the parties to divide
the artwork by agreement or through a neutral third party within 90 days. The parties did
not comply. We affirmed the district court’s property division in 2009. In February
2013, the district court issued an order stating that the parties had failed to divide the
marital property as ordered over four years earlier and ordered the appointment of a third-
party neutral. In July 2013, the district court denied wife’s motion for amended findings
and reaffirmed that “[t]he appropriate method of calculating the number of images to be
awarded to [wife] is set forth in . . . the Amended Judgment and Decree dated July 14,
2008.” The district court articulated the appropriate “method of effectuating the
division” and appointed a retired judge as the neutral. The district court reiterated that
the October 2014 order did not alter the 2008 amended judgment awarding one-half of
the marital property to each of the parties, less the artist proofs excluded from the marital
estate.
Wife argues that the method of division will prevent her from receiving the full
value of her award. The parties were in a long-term relationship and amassed a
significant art collection. An equal division of marital property is presumptively
equitable upon dissolution of a long-term marriage. Miller v. Miller, 352 N.W.2d 738,
742 (Minn. 1984). While the district court must make a “just and equitable” division of
marital property on the parties, Minn. Stat. § 518.58, subd. 1, “just and equitable,” does
not necessarily mean equal. Ruzic v. Ruzic, 281 N.W.2d 502, 505 (Minn. 1979); Johns v.
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Johns, 354 N.W.2d 564, 566 (Minn. App. 1984) (“A trial court’s division of marital
property need not be mathematically equal.”). “A [district] court has broad discretion in
evaluating and dividing property in a marital dissolution and will not be overturned
except for abuse of discretion.” Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002)
(citation omitted).
The district court ordered the parties to divide the property several times over the
course of several years and they failed to comply. The district court classified
approximately 522 works of art as marital property, but recognized that some of these
items would be excluded from the marital estate by agreement of the parties. The district
court ordered an equal division of the remaining works of art, which husband’s records
reflect equal 441 works of art. Although wife challenges this number, she has not
provided factual support in the record justifying a larger award. The district court judge
expressed frustration that even though she directed the parties over the course of the
proceedings to give her an accurate inventory of the artwork, the parties did not do so. As
the district court judge finally stated, trying to quantify the artwork in the absence of
factual evidence would be like “pulling a number out of the air.”
The parties failed to provide the district court with information about the total
number of works of art in dispute and the only information made available to the district
court was the appraiser’s inventory list citing 441 works of art. The October 2014 order
appropriately directs enforcement of the 2008 amended judgment by ordering husband to
produce “all marital images available to him . . . but not less than the 441 images
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acknowledged” for division. This order did not impermissibly modify the July 2008
amended judgment.
A district court is empowered to enforce the provisions of a judgment “so long as
the parties’ substantive rights are not changed.” Kornberg v. Kornberg, 542 N.W.2d 379,
388 (Minn. 1996); see also Linder v. Linder, 391 N.W.2d 5, 8 (Minn. App. 1986). A
party’s substantive rights are changed when the district court’s order affects the value of a
party’s interest. Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991). But when a
party in a marital dissolution action receives “neither more nor less than under the
original decree,” the party’s substantive rights have not been changed. Id. The district
court’s October 2014 order sought to enforce the 2008 amended judgment by equally
dividing the marital property between the parties and therefore did not affect wife’s
substantive rights.
II.
Wife challenges the district court’s July 2008 amended judgment related to the
award of artist prints to the children. On December 16, 2014, this court issued a special
term order dismissing that portion of wife’s appeal related to the July 2008 amended
judgment on the ground that the appeal was untimely and we lacked jurisdiction to
consider the issues raised therein. Our rules and caselaw preclude us from readdressing
issues decided in a special term order. See In re Estate of Sangren, 504 N.W.2d 786, 788
n.1 (Minn. App. 1993) (refusing to reconsider issue on appeal that was previously ruled
on by special term panel); Minn. R. Civ. App. P. 140.01 (prohibiting reargument of issue
decided at special term). Accordingly, this court will not reconsider the issue now.
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III.
Wife asserts several other arguments that the district court abused its discretion in
the October 2014 order by: (1) denying her request to inventory the artwork prior to
division, (2) declining to rule on the exact number of works of art in existence,
(3) appointing a third-party neutral not to wife’s liking, (4) excluding certain artist prints
from the marital estate, and (5) dividing the artwork at a location and in a manner
objectionable to wife. We apply a deferential abuse-of-discretion standard of review to a
district court’s order enforcing, implementing, or clarifying the terms of a judgment.
Potter, 471 N.W.2d at 114.
Wife objects to the October 2014 order but fails to support her factual assertions
and conclusory declarations with relevant facts or legal authority. Unsupported claims
are treated as waived unless prejudicial error is obvious on mere inspection. State v.
Rossberg, 851 N.W.2d 609, 619-20 (Minn. 2014) (citing Kaehler v. Kaehler, 219 Minn.
536, 537, 18 N.W.2d 312, 313 (1945)). In a marital dissolution action, the burden of
proof is on the party asserting the wrongful disposition of marital assets. Minn. Stat.
§ 518.58, subd. 1a (2014); Waters v. Fiebelkorn, 216 Minn. 489, 495, 13 N.W.2d 461,
465 (1944) (“[T]he burden of showing error rests upon the one who relies upon it.”).
Here, wife has not demonstrated that the district court abused its discretion by declining
to order an inventory of the artwork, declining to rule on the exact number of works in
existence, appointing a retired judge to act as a third-party neutral after the parties failed
to do so, or ordering the parties to divide the artwork at a location and in a manner to
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which wife objects. And as stated above, this court lacks jurisdiction to consider wife’s
argument relating to the artist prints. We therefore affirm the district court’s order.
Affirmed.
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