Marriage of Moylan v. Moylan

423 N.W.2d 402, 1988 Minn. App. LEXIS 468, 1988 WL 47088
CourtCourt of Appeals of Minnesota
DecidedMay 17, 1988
DocketNo. C6-87-2133
StatusPublished

This text of 423 N.W.2d 402 (Marriage of Moylan v. Moylan) 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 Moylan v. Moylan, 423 N.W.2d 402, 1988 Minn. App. LEXIS 468, 1988 WL 47088 (Mich. Ct. App. 1988).

Opinion

OPINION

FOLEY, Judge.

This is an appeal from the denial of a post-dissolution motion to effectuate the terms of the amended judgment and decree dissolving the marriage between appellant Gerald G. Moylan and respondent Bonnie Y. Moylan. We affirm in part, reverse in part and remand.

FACTS

Gerald and Bonnie’s marriage was dissolved in 1975 by judgment and decree which incorporated the terms of a stipulation agreed to by the parties. The decree provided, among other things, that the parties’ homestead be placed in tenancy in common, with each of the parties owning an undivided one-half interest therein. Bonnie was awarded rent-free occupancy of the home until any of the following events occurred:

A. The youngest child, Wendy E. Moylan, becomes 18, emancipated, or
B. In the event [Bonnie] remarries or lives on a permanent relationship with a male, or
C. Upon [Bonnie’s] death or abandonment of the property.

[404]*404When any of these triggering events occurs, the property is to be sold and the net proceeds of the sale divided evenly between the parties.

In addition to cash maintenance payments, the decree required Gerald to pay Bonnie’s half of the mortgage payments, including insurance and real estate taxes, until the mortgage is paid in full, at which time each party becomes responsible for one-half of the insurance and real estate taxes.

The decree further provided that Bonnie is responsible for making all minor repairs to the home and maintaining its furnishings, including carpeting and drapes. The cost of any major repairs to the home are to be split evenly between the parties.

In 1984 Bonnie made a motion to increase Gerald’s child support obligation. Gerald appealed the trial court’s modification to this court, which affirmed. See Moylan v. Moylan, 368 N.W.2d 353 (Minn.Ct.App.1985). The Minnesota Supreme Court reversed and remanded to the trial court for reconsideration and express findings on the factors listed in Minn.Stat. § 518.64 (1984). See Moylan v. Moylan, 384 N.W.2d 859 (Minn.1986).

On remand, the trial court issued findings of fact which stated in part:

It appears to the Court that the homestead was treated by the parties as a property settlement between the parties and not as a support payment on behalf of the children.
* * * * * *
The events triggering the eventual homestead sale do not depend upon Wendy Moylan except that the latest date for the sale of the homestead would be her 18th birthday. The sale of the homestead does not depend upon her living, or living in the home, or being in the custody of her mother. Rather, the events turn on * * * Bonnie Moylan.

The amended judgment and decree entered on March 27, 1987 did not alter the provisions of the 1975 decree with respect to the homestead.

Wendy turned 18 on October 4, 1987. In June of 1987, Gerald wrote to Bonnie reminding her the home was to be sold in October and suggesting they utilize the services of a Coldwell Banker real estate agent he had contacted to sell the home. The letter also discussed the condition of the home and Bonnie’s failure to reimburse Gerald for her portion of property taxes paid since 1984, when the mortgage was paid in full.

Coldwell Banker inspected the home and prepared a market analysis which set the market price of the home at $85,900 to $92,900. The market analysis also listed several conditions in the home which warranted repair or maintenance. Gerald executed a listing agreement with Coldwell Banker at the indicated price.

Bonnie met with Coldwell Banker on July 24, 1987. She objected to portions of the market analysis and the listing price and refused to sign the listing agreement. Bonnie then had a market analysis prepared which stated the market value of the home ranges from $96,000 to $102,000, depending on repairs and maintenance completed.

Gerald brought a motion asking the trial court to: (1) order Bonnie to execute the Coldwell Banker listing agreement and cooperate in the sale of the home; (2) order Bonnie to make all necessary repairs to the home; (3) order Bonnie to vacate the home on or before October 1, 1987, or, in the alternative, establish the amount of rent she must pay beginning October 4, 1987 if the home is not sold before then; (4) order Bonnie to pay the amount she owes for her share of property taxes owed for 1984-1986; and (5) grant him reasonable attorney fees. Bonnie filed a countermotion asking the trial court to deny Gerald’s motion in all respects and grant her reasonable attorney fees. Bonnie’s affidavit in support of her motion stated she had no objection to signing a listing agreement so long as the parties agreed on a real estate agent and a listing price.

The hearing on this motion was held before a second trial court judge on September 14, 1987. Bonnie argued Gerald’s mo[405]*405tion was premature. She stated she did not object to selling the home at one of the triggering events, the first of which would occur on October 4, 1987. Bonnie stated her only objection to the sale was the listing price. She asked the trial court to either dismiss the motion as premature or order the parties to co-list the home and set the listing price.

The trial court issued its order on October 2, 1987, finding:

6. That the parties youngest child, Wendy E. Moylan, will turn 18 years of age on October 4, 1987. Further, that the parties youngest child, Wendy E. Moylan, will not graduate from secondary school until the spring of 1988.
7. That the youngest child, Wendy E. Moylan, will still be under the control and supervision of [Bonnie]. Further, that Wendy Moylan’s turning 18 years of age will not act to sever the parent-child relationship. She will continue to live with [Bonnie] who will be providing food, shelter, and clothing.
8. That as regards the occupancy of the parties homestead, the Amended Judgment and Decree evinces an intent which takes into account the best interests of the aforesaid child, Wendy E. Moylan.
9. That the best interests of the child would be served by allowing her to remain in the homestead with [Bonnie] until she has completed her high school education.
10. That the court received evidence regarding various repairs to the homestead which [Gerald] argues must be made by [Bonnie] at her sole expense, including:
(a) Staining the exterior of the home;
(b) Replacing ceramic tiles and the grout in the bathroom;
(c) Repair of garage water damage and a water leak in the bathroom;
(d) Replacement of kitchen cabinet doors and refinishing all woodwork;
(e) Repair of the kitchen garbage disposal;
(f) Replacement of missing pieces of oak parque floor and refinishing of the floor in the dining area;
(g) Replacement of the garage door;

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Related

Moylan v. Moylan
384 N.W.2d 859 (Supreme Court of Minnesota, 1986)
Deliduka v. Deliduka
347 N.W.2d 52 (Court of Appeals of Minnesota, 1984)
Marriage of Angelos v. Angelos
372 N.W.2d 405 (Court of Appeals of Minnesota, 1985)
Marriage of Moylan v. Moylan
368 N.W.2d 353 (Court of Appeals of Minnesota, 1985)

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Bluebook (online)
423 N.W.2d 402, 1988 Minn. App. LEXIS 468, 1988 WL 47088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-moylan-v-moylan-minnctapp-1988.