In re the Marriage of: Christopher Pettey v. Melissa Denise Pettey ( 2015 )

This opinion will be unpublished and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UNPUBLISHED OPINION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
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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
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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
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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
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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,
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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
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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
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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).
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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
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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.
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