In re the Marriage of: Christopher Pettey v. Melissa Denise Pettey

• Court: Court of Appeals of Minnesota
• Decided: October 5, 2015
• Docket: A15-140
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-0140

In re the Marriage of: Christopher Pettey, petitioner, Appellant,

vs.

Melissa Denise Pettey, Respondent.

Filed October 5, 2015 Affirmed in part, reversed in part, and remanded; motions denied Ross, Judge

Wabasha County District Court File No. 79-FA-14-181

David L. Liebow, Restovich Braun & Associates, Rochester, Minnesota (for appellant)

Jill I. Frieders, O’Brien & Wolf, L.L.P., Rochester, Minnesota; and

Kimball G. Orwoll, Rochester, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Rodenberg, Judge; and Harten,

Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION

ROSS, Judge

Christopher Pettey petitioned the district court to dissolve his marriage with

Melissa Pettey but then did not attend the scheduled pretrial hearing or court trial. The

district court divided the marital property based on Melissa’s evidence and arguments,

and it ordered Christopher to pay all attorney fees that Melissa incurred in the entire

dissolution proceeding. Christopher unsuccessfully sought a new trial based on his

contention that he did not receive notice of the hearings, and he now appeals the district

court’s property division, attorney-fee award, and refusal to retry or reopen the case. We

reverse in part and remand because the district court improperly awarded marital property

to a nonparty and because its attorney-fee award lacks sufficient findings for this court to

review the award’s propriety. We otherwise affirm.

FACTS

Christopher Pettey petitioned the district court in February 2014 to dissolve his 22-

year marriage with Melissa Pettey. Christopher’s petition stated that he was represented

by attorney Jessica Schimelpfenig, and he listed the marital home he shared with Melissa

in Zumbro Falls as his address. The district court issued a scheduling order in response to

the petition on May 6, 2014. The next day, Schimelpfenig withdrew from representing

Christopher. Her notice of withdrawal stated a Rochester address for all future pleadings

to be served on Christopher.

The district court’s May 6 scheduling order announced a pretrial hearing to occur

on October 7 and trial to occur on October 24, 2014. Melissa appeared at the hearing, but

2 Christopher did not. She also appeared at the trial, and Christopher did not. Melissa was

the only trial witness. Her attorney submitted 43 exhibits detailing Melissa and

Christopher’s financial assets. Melissa requested that the court equally divide their

marital property, and she requested no spousal maintenance.

A week after the trial, Melissa’s attorney submitted an affidavit of fees. The

affidavit stated that Melissa had incurred $17,800.39 in fees and expenses from the

initiation of the case through October 29, 2014.

The district court issued its judgment and decree on November 10, 2014. It

divided the property as Melissa requested. The court found that Christopher’s failure to

participate in the proceeding unreasonably contributed to its length and expense, and, as a

consequence, the court ordered him to pay $17,800.39 to cover Melissa’s attorney fees.

The next month the district court issued a summary-real-estate disposition judgment

covering the sale of the couple’s Zumbro Falls home.

Christopher obtained new counsel and on December 24, 2014, filed a motion to

stay the dissolution judgment and decree and the real-estate disposition judgment. He

asked the district court to vacate its orders and reopen the case for a new trial. He asserted

that he never received notice of the hearing and trial. He stated that the Rochester address

that he provided through his previous attorney was actually his mother’s address and that

he stayed there only from January to March 2014. He claimed that he resided at a

campground in Zumbro Falls from March to September, after which he moved to Devils

Lake, North Dakota. He said that he had no cellular or other telephone service in Devils

3 Lake. He also stated that his previous attorney never gave him the May 2014 scheduling

order.

The district court held a hearing on Christopher’s motions and summarily denied

them.

Christopher appeals.

DECISION

Christopher challenges the district court’s division of property, its award of

attorney fees to Melissa, and its denial of his motion for a new trial or to reopen the

judgment and decree. We address each argument in turn.

I

Christopher contests the district court’s property division. We will uphold the

district court’s property division in a dissolution unless the district court’s decision

exceeds its broad discretion. Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002). We

consider whether the district court had a basis in fact and reason, and, if it did, we will

affirm its decision even if we might have divided the property differently. Id. We apply

this standard to Christopher’s three challenges to the property division.

Christopher’s first challenge results from the district court’s decision to award him

a business that the couple owned. He argues that the district court abused its discretion by

awarding him the Rochester Siding Company without including any valuation of the

company. The district court had to assign the business to one of the parties or otherwise

order its disposition, and it received reasonable evidence indicating that ownership should

go to Christopher. Christopher is correct that the district court did not ascribe any value to

4 the business, but he does not direct us to any evidence from which the district court could

have found the value. See Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App.

2003) (stating that “a party cannot complain about a district court’s failure to rule in [the

party’s] favor when one of the reasons it did not do so is because that party failed to

provide the district court with the evidence that would allow the district court to fully

address the question.”), review denied (Minn. Nov. 25, 2003). He also fails to direct us to

any evidence from which the district court could have discerned that awarding the

business to Christopher without assigning any value to it would have prejudiced

Christopher. See Minn. R. Civ. P. 61 (requiring harmless error to be ignored); Midway

Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating

that, to prevail on appeal, a party must show error and that error caused prejudice); see

also Braith v. Fischer, 632 N.W.2d 716, 724 (Minn. App. 2001) (citing rule 61 and

Midway Ctr. Assocs. in a family-law appeal), review denied (Minn. Oct. 24, 2001). The

first challenge fails.

Christopher next argues that the district court overvalued firearms and taxidermic

animals it awarded to him. We review a district court’s valuation of property under the

clear-error standard. Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn. 2001). The district

court based its $22,455 valuation on Melissa’s unopposed trial testimony that she had

researched the value of the guns and the taxidermy cost. Christopher contends that the

district court should have determined the taxidermy value based on the current fair-

market resale value of the objects rather than on the cost to replace them. Assuming

without deciding that his valuation theory is correct, Christopher cannot prevail on this

5 point because he directs us to no evidence from which the district court could have

determined that the replacement cost differs from the fair-market value. Because he gives

us no evidentiary basis on which we can determine that the district court clearly erred in

assigning value, we have no ground on which to reverse the finding. This challenge also

fails.

Christopher’s final property-division challenge concerns a 1999 Honda sedan that

the parties’ son drives. Melissa testified that she and Christopher bought the car as a gift

for their son. She also testified that their son made all the subsequent payments on the car

loan but that the car’s title remains solely in Christopher’s name. The district court did

not specify whether it considered the car marital property. It ordered Christopher to

assign the certificate of title to his son. Christopher contends that the order exceeds the

scope of the district court’s authority in a dissolution case.

Christopher is correct. We have held that the district court erred when it “awarded

to [a] nonparty an interest in property that, on its face, was marital property,” and we

have concluded that, “in a dissolution proceeding, a district court lacks personal

jurisdiction over a nonparty and cannot adjudicate a nonparty’s property rights.”

Danielson v. Danielson, 721 N.W.2d 335, 339 (Minn. App. 2006). Our review is

somewhat difficult here because the district court did not expressly find that the car is (or

is not) marital property. It appears to us that the district court implicitly considered the

car to be marital property, assumed that the parties’ son is the equitable owner of it, and

reasoned that directing its title to the son would simply fulfill the parties’ intent to pass

ownership from Christopher to the son once the son paid off the car. Given our caselaw,

6 regardless whether the district court assumed that the car is nonmarital property

belonging to Christopher, marital property belonging to both parties, or property

belonging to the parties’ son rather than to either party, the district court had no basis on

which to order Christopher in this proceeding to divest himself of his title ownership.

Christopher therefore persuasively argues that the dissolution court cannot direct

marital property to a nonparty. Because the parties purchased the Honda during the

marriage, the car presumptively constitutes marital property, and no evidence rebuts that

presumption. See Minn. Stat. § 518.003, subd. 3b (2014). Although it is unclear how

Christopher’s success on this challenge benefits him, he prevails on it. Based on our

rationale in Danielson, we validate his argument that the district court erred by ordering

him to divest himself of the car’s title ownership in this dissolution proceeding. We

remand to allow the district court to amend its property division accordingly, which

includes determining, in its discretion, whether to add an equalizer amount that will

compensate Melissa for her share of the car as marital property that has been awarded to

Christopher. We otherwise affirm the district court’s property division.

II

The district court awarded Melissa $17,800.39 in conduct-based attorney fees and

costs. Christopher challenges this award. A district court has the discretion to award

attorney fees against a party “who unreasonably contributes to the length or expense of

the proceeding.” Minn. Stat. § 518.14, subd. 1 (2014). An award of conduct-based

attorney fees rests almost completely in the district court’s discretion, and we will not

7 reverse it unless we see a clear abuse of that discretion. Crosby v. Crosby, 587 N.W.2d

292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).

Christopher argues that the district court improperly awarded attorney fees

because Melissa did not move for them under Minnesota Rule of General Practice

119.01. But a district court may waive the requirements of rule 119 when “the court is

familiar with the history of the case and has access to the parties’ financial information.”

Gully v. Gully, 599 N.W.2d 814, 826 (Minn. 1999). The same judge presided over the

dissolution proceeding during the entire nine months of its litigation in district court and

had access to much of the couple’s financial information because of Melissa’s

cooperation. The court certainly lacked complete information, but this was due mainly to

Christopher’s lack of participation. Given the district court’s breadth of discretion, we

hold that the court did not abuse its discretion by awarding attorney fees even though the

requirements of rule 119 were not met.

But we are persuaded by Christopher’s argument that the attorney-fees award may

be excessive. “The district court must make findings to explain an award of conduct-

based attorney fees.” Brodsky v. Brodsky, 733 N.W.2d 471, 477 (Minn. App. 2007). The

district court awarded Melissa all attorney fees that she incurred throughout the entire

dissolution case. Neither its conclusory finding that Christopher’s failure to participate in

the proceeding unreasonably contributed to its length and expense nor the circumstances

apparent to us from the record allow us to discern any relationship between Christopher’s

unreasonable conduct and the amount of fees awarded. Melissa’s attorney conceded at

oral argument before this court that a district court abuses its discretion by failing to

8 correlate the conduct that supports a conduct-based fee award and the amount of that

award. Given the lack of findings, we cannot analyze the district court’s exercise of

discretion in awarding the fees. We can infer at least that the award includes fees that

Melissa would have incurred regardless of Christopher’s failure to participate. We

remand and instruct the district court to make relevant findings and, if appropriate, amend

its award of conduct-based fees consistent with those findings. In its discretion, the

district court may reopen the record if necessary to receive evidence and argument

bearing on the relationship between the misconduct and any fee award.

III

The district court denied Christopher’s motion to conduct a new trial under

Minnesota Rule of Civil Procedure 59.01 or alternatively to vacate the judgment and

decree and reopen the case under Minnesota Statutes section 518.145 (2014). We reject

Christopher’s challenge to these denials.

A district court may grant a new trial in the event of “[i]rregularity in the

proceedings of the court, . . . or prevailing party, . . . whereby the moving party was

deprived of a fair trial” or “[m]isconduct of the . . . prevailing party.” Minn. R. Civ. P.

59.01. A decision to grant a new trial under this rule lies within the discretion of the

district court. Frazier v. Burlington N. Santa Fe Corp., 811 N.W.2d 618, 629 (Minn.

2012). Even if Christopher established one of the bases for a new trial, the district court

lacked any discretion to grant him a new trial unless he also demonstrated prejudice,

which is the main factor in determining whether to order a new trial. See Wild v. Rarig,

302 Minn. 419, 433, 234 N.W.2d 775, 786 (1975).

9 We see no prejudicial irregularity or misconduct in the proceedings. Christopher

complains that he did not receive notice of the hearings or filings, either from the district

court or from Melissa. But the district court disclosed the hearing and trial dates in its

scheduling order, which it issued while Christopher’s initial attorney still represented

him. Although that attorney withdrew from representation the following day, it is well

settled that a court’s notice to an attorney constitutes notice to the party whom the

attorney represents. See Lebanon Sav. Bank v. Hallenbeck, 29 Minn. 322, 326, 13 N.W.

145, 147 (1882) (holding that notice to an attorney constituted notice to the attorney’s

clients). Christopher had notice of the pretrial hearing and the bench trial, both of which

occurred on the dates indicated in the scheduling order. Christopher claims that he never

received the scheduling order from his attorney either before or after she withdrew from

representing him. But this is not a matter of misconduct by an opposing party or a

procedural irregularity by the court.

Although we make our decision on this challenge based on the law and

independent of evidence that Christopher actually did receive notice, we observe that the

record suggests that Christopher’s failure to attend the hearings and trial was a matter of

his own strategy rather than a matter of his alleged lack of actual notice. Melissa provided

an affidavit from Christopher’s pastor in response to Christopher’s motion for a new trial.

The pastor’s affidavit testimony indicates that Christopher spoke to the pastor about the

dissolution “on numerous occasions” and that Christopher also discussed the hearing

dates. The pastor stated that he had “no doubt” that Christopher did not attend the

hearings specifically to “buy[] time so as to drag this matter out.” Again, our affirmance

10 does not depend on this evidence, but it adds support for the district court’s discretionary

decision to refuse to grant a new trial under rule 59.01. We affirm that decision.

Christopher does not state any additional basis for reopening the judgment and

decree under Minnesota Statutes section 518.145, subdivision 2. The district court

implicitly found that Christopher did not demonstrate any grounds for reopening the

judgment, and Christopher does not explain how this conclusion is in error. We therefore

affirm the district court’s refusal to reopen the judgment.

We do not rely on any material included in Melissa’s motion to supplement the

record with additional affidavits of service. We therefore deny as unnecessary

Christopher’s motion to strike that material and Melissa’s references to it in her brief.

Affirmed in part, reversed in part, and remanded; motions denied.