Marriage of Gummow v. Gummow

356 N.W.2d 426, 1984 Minn. App. LEXIS 3657
CourtCourt of Appeals of Minnesota
DecidedOctober 16, 1984
DocketC8-83-1850, C9-84-1009
StatusPublished
Cited by17 cases

This text of 356 N.W.2d 426 (Marriage of Gummow v. Gummow) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marriage of Gummow v. Gummow, 356 N.W.2d 426, 1984 Minn. App. LEXIS 3657 (Mich. Ct. App. 1984).

Opinion

OPINION

RANDALL, Judge.

In this marriage dissolution proceeding, Gary Gummow appealed from the judgment and decree, citing as error the division of property. After that appeal was taken, the trial court entered an order partially amending the judgment and decree as to the division of property. Rosanne appealed from that order, claiming the trial court did not have jurisdiction to enter it. We consolidated the appeals, and now reverse and remand for an equitable distribution of property based on all the statutory factors.

FACTS

Rosanne and Gary Gummow were married on December 9, 1972. No children were born to them during their marriage. During most of the marriage, Rosanne’s son from a previous marriage lived with them. Rosanne received child support of $150 per month from her former husband irregularly throughout the marriage. Gary paid $100 per month for the support of his two children from a previous marriage irregularly throughout the marriage.

At the time of Rosanne and Gary’s marriage, Rosanne had about $5,000 in savings and checking accounts and other assets worth about $12,000. Gary had an automobile, various other nominal assets, and many debts.

Rosanne worked as a teacher throughout the marriage. She earned $10,001 in 1972 and received yearly increases. In 1981 she earned $27,013. Her average annual income during the marriage was $16,560. In lieu of social security, Rosanne made contributions, supplemented by her employer, to the Minneapolis Teachers Retirement Fund Association. Her contributions, together with those of her employer, totalled $28,718.62 during the marriage.

Gary was self-employed as a barber during the marriage. He earned $2,834 in 1972. His reported income fluctuated from zero, in 1975 and 1976, to $11,810, in 1981. His average annual income during the marriage, as reported, was $5,407.

At the time of the separation, the parties owned a home and a lake cabin. The home was built for the parties in 1974 for $37,-650. Rosanne testified, and the trial court found, that the down payment of $3,800 came from Rosanne’s non-marital funds. Both Gary and Rosanne worked to finish the partially-constructed home, and it is now worth $91,000, subject to mortgages of $29,890.53 and $3,728.80.

The land for the cabin was purchased in 1976 for $8,500. The two hundred dollar earnest money and additional three hundred dollar down payment, the trial court found, came from Rosanne’s non-marital property. The balance of the land purchase price, as well as construction costs of $10,250, were financed by loans from the Teachers Credit Union. The parties stipulated that the cabin has a market value of $57,995. It is unencumbered by a mortgage.

After a trial, the court divided the parties’ home and cabin by using a formula which traced the non-marital contributions to the acquisition of the assets and treated the remainder of the equity as marital property, as approved by the supreme court in Schmitz v. Schmitz, 309 N.W.2d 748 (Minn.1981). The court divided the marital portion of the equity in the home and cabin based upon his finding that Rosanne had made 80% of the financial contributions to the marriage and Gary had made 20%. Eighty percent of the marital portion of the equity was awarded to Rosanne, *428 along with the amount of the equity traceable to her non-marital contribution, and twenty percent of the marital portion of the equity was awarded to Gary. Rosanne also received 100% of her vested pension rights.

Gary moved for amended findings. The motion was heard on September 20, 1983. On November 18, 1983, Gary filed an appeal from the original judgment and decree. With Rosanne’s acquiescence, Gary asked this court for a stay of the appeal so that the trial court could rule on the pending motion. We issued an order staying the appeal until January 3, 1984. When the trial court had not ruled on the motion by that date, Gary requested an additional stay, which we denied. On May 3, 1984, the trial court issued an order ameiiding the judgment to award Gary a credit for one-half of Rosanne’s pension, less half the amount of social security taxes paid by Rosanne on Gary’s behalf, that credit to be paid Gary from the proceeds of the sale of the cabin. Rosanne appealed from that order, claiming the trial court had no jurisdiction to enter it.

We consolidated the two appeals. After the consolidation, Rosanne moved that portions of Gary’s reply brief be stricken as raising new issues not raised in his original brief or in her brief. We postponed a decision on the merits of that motion to be decided with the rest of the issues presented.

ISSUES

1. Did the trial court have jurisdiction to enter an order amending the judgment and decree after an appeal had been taken?

2. Did Gary raise new issues in his reply brief?

3. Did the trial court err in dividing the marital property?

ANALYSIS

1. Rosanne contends that the May 3, 1984, order of the trial court purporting to amend the judgment and decree is null and void because the trial court had lost jurisdiction to this court when Gary filed his notice of appeal and this court denied an additional stay of the appeal. We agree. As we stated in Evans v. Blesi, 345 N.W.2d 775 (Minn.Ct.App.1984), an order entered after an appeal is taken, even if not really late, is of no effect since jurisdiction shifts to this court once an appeal is perfected. Further, parties may not waive lack of subject matter jurisdiction and may not consent to a court acting when it has no subject matter jurisdiction. See Minn.R.Civ.P., Rule 12.08(3). The trial court therefore had no jurisdiction to amend the judgment and decree after an appeal from the judgment had been taken, and its order of May 3, 1984, is of no effect.

2. Rosanne’s motion to strike portions of Gary’s reply brief alleges that Gary did not claim the trial court’s findings of fact were erroneous until his reply brief. Were this true, we would strike those portions, since new matter may not be raised in a reply brief. Gary’s initial brief, however, argues that certain of the court’s findings were erroneous; the reply brief merely adds that the statement of the facts in Rosanne’s brief was erroneous. Raising alleged inaccuracies in the facts presented in respondent’s brief is proper in a reply brief.

3. Finally, we reach the merits of Gary’s appeal. The trial court first awarded Rosanne her nonmarital interest in the home and the cabin according to the formula in Schmitz v. Schmitz, 309 N.W.2d 748 (Minn.1981), and then divided the home and the cabin, two of the parties’ three major assets, by awarding 80% of the marital equity to Rosanne and 20% to Gary. It did this based upon its findings that Rosanne had made at least 95% of the deposits to the parties’ joint checking account and, with her son, had also provided about 85% of the noncontracted portion of the completion and improvement of the parties’ home and cabin.

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Bluebook (online)
356 N.W.2d 426, 1984 Minn. App. LEXIS 3657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-gummow-v-gummow-minnctapp-1984.