*1 9H Marriage In re the of Brenda Petitioner, PLONSKE,
F. Appellant, PLONSKE, Respondent. Edward F. No. CX-91-132. Appeals of Lazarus, Court of Minnesota. Barry Meredith-Will, Anne Hannan, Minneapolis, ap- O’Connor & Aug. pellant. Mulligan, John Mulligan Bjornnes, M. & Minneapolis, respondent. RANDALL, Considered and decided P.J., LANSING, NORTON, JJ. OPINION NORTON, Judge. parties’ marriage years of ten by judgment
dissolved and decree entered 1990. All December matters of the by stipulation dissolution were settled parties except one issue: whether to provision providing include a that the co- by appellant habitation Brenda F. Plonske with an unrelated male for a continuous of more than 30 mandatory redemption Ed- ward F. Plonske’s interest in the home- property. stead The trial court included disputed provision in the final and decree. This is taken from the judgment. We reverse and remand to the disputed provision trial court to strike the from the FACTS were married on December 1980. There was one minor child born Plonske, marriage, Mary age Elizabeth also from a has a minor son previous marriage. per- parties have joint legal Elizabeth and custody manent custody primary physical obligated Elizabeth. for Elizabeth the amount per spousal month maintenance $475 per month. The maintenance obli- $100 gation cease after 36 will months. *2 appeal judgment the final joint a homestead in owned parties
The judgment. the is taken from joint mortgage. Pursuant tenancy with right, given all stipulation, challenges of the the inclusion interest, the title, equity in and to 8(b)(4), provision, paragraph homestead, subject interest free lien to an stipulated to in the final which was for one-half in favor She does not chal- judgment and decree. Appellant is equity of the homestead. net provi- the lenge inclusion of three other the princi- payments, all solely responsible for 8(b)(l)-(3), sions, paragraph contained interest, taxes, on the and insurance pal, parties. stipulated as these were homestead. ISSUE to the terms of the stipulated parties The including in err Did the trial court except for one mat- decree provision, ab- final and decree ter, appeal. is the of this parties, which re- stipulation by the sent disagreed over the inclusion parties The sell the home- quires appellant to either 8(b)(4) judgment and de- paragraph respondent’s interest buy stead or out 8(b)(l)-(4) provides the Paragraph cree. satisfy respondent’s lien on therein so as to following: if with an the homestead she cohabitates (b) house shall be sale for offered days? thirty male for more than unrelated Respondent’s lien satis- and sold and upon the earlier of: fied ANALYSIS 1) high graduates minor child from directly This is an from the final emancipated or school or is otherwise dissolution, chal- judgment and decree dies; lenging contained therein that 2) remarriage; [Appellant’s] occupancy the homestead. Al- involves 3) refinancing, by [appellant]; Any though this case does not involve modifica- 4) by [ap- The continuous cohabitation homestead, occupancy tion of pellant] more than SO for applies in modifica- analysis of the law that unrelated male adult in days with an showing is instructive in tion cases homestead. supports our development of the law and Upon the occurrence one that the inclusion of the chal- conclusion events, placed the house shall be above 8(b)(4), lenged provision, paragraph is an on the market sale at market error of law. for fair days. Respondent shall value within 60 contrary, stipulation Absent prominent locally select a realtor from a right modification of the realty firm market established homestead, like modification of mainte homestead. support, “should be al nance and child added). 8(c) Paragraph (Emphasis lowed when the modifi provides judgment and decree that change in cir cation can show material of one of these occurrence Angelos Angelos, cumstances.” events, appellant option will have (em (Minn.App.1985) 407-08 in lieu buying out interest added) (former phasis husband’s remar placing house on the market. riage did not constitute “a sufficient trial, change require modifi go parties circumstances to
Rather
occupancy of the homestead”
present
two versions of the Find-
cation of the
Fact,
Law,
stipulation
stipu
ings
awarded to him
where
Conclusions
Order
provided
per
Judgment,
Judgment
specifically
Decree
lated decree
that
court,
disputed
acquires
property
no
including
son he remarries
it, together
rights
pro
homestead but failed to
provision and one without
with
remarriage
supporting
vide that
letter briefs to the
homestead), pet.
respective positions.
court
forced sale of the
rev.
their
The trial
(Minn.
24, 1985).
8(b)(4) in
disputed paragraph
included the
denied
Oct.
Saabye
Saabye,
N.W.2d at 387. The
explained
court
oc-
awarded
the wife was
the fact
(Minn.App.1985),
occupying
the wife
the homestead
of the homestead.
cupancy
received financial contributions
the husband’s
stipulated
cohabitating
household from the man
upon the sale
payable
homestead was
her was
normally
a circumstance
found
remarriage.
upon the wife’s
remarriage
situations of
or cohabitation.
rejected
considered but
the idea
Therefore,
holding
found a
differ-
*3
stipulation
in their
including
cohab-
of also
Angelos
ent
justified.
than
was not
as a
the wife
event.
by
itation
is,
stipulation
contrary,
That
absent
to the
to be sold
was
when the two
The house
of
occupancy
modification
the
the
of
* * *
children,
one whom
in
lived
the
minor
homestead
should
only
be allowed
wife,
emancipated.
the
were
home with
when
the
modification
the dissolution
Shortly after
a male moved
change
a
in
show material
circumstances.
homestead with
into the
the wife
con- Angelos,
(emphasis
Again, acknowledge we change occupancy modification of case not involve would mandate does However, disputed if earlier decree. of the homestead cohabitation stand, change in provision stipulation is allowed occupying spouse, absent homestead would contrary, of law. We note our is an error stipula automatically, absent effectuated holding specifically limited to is narrow upon the occurrence parties,1 tion only. cohabitation clauses appellant without address change has been a there whether DECISION find such We circumstances. erred as a of law matter with Minnesota law.2 be inconsistent disputed provision in the by including the public policy We also find considerations final decree. We remand to our conclusion. 8(b)(4) paragraph the trial court to strike participation in a mer- court has stated *4 judgment from relationship by cohabitating cou- etricious not, ple simply reason of the rela- does Reversed and remanded. or
tionship, justify reduction termination Mertens, spousal maintenance. Mertens v. RANDALL, Judge, dissenting. 490, (Minn.1979); v. 285 491 Abbott N.W.2d respectfully majority dissent. 561, (Minn.1979); Abbott, N.W.2d 565 282 where, on cases after a is built Bateman, 382 N.W.2d Bateman occupancy provi- an dissolution decree with pet. (Minn.App.1986), 251 rev. denied for effect, party has sion came back (Minn. 24, 1986). Rather, the cohab- Apr. sought into of that court and modification only be “insofar itation should considered setting prior There are cases decree. ex-spouse’s improve as it an econom- might person seeking forth on a modi- burden Mertens, well-being.” ic 285 N.W.2d at fication. Those cases do control. This Sieber, (quoting 491 258 N.W.2d Sieber is not a is to case where (Minn.1977)). 758 modify occupancy of an award of the home- individual, [Ljiving male or with another stead. This case involves an female, trigger automatically does not an challeng- from the dissolution decree initial dependency certainly and does economic prop- determination on trial court’s legal not result in the attachment of con- maintenance, erty division, support, sequences. occupancy. The and is burden Bateman, at 382 N.W.2d 251. The ar- appellant on show the trial court abused rangement broken off be without obli- committed an error of law. discretion or gation. automatically If maintenance were not done so. There is no modified, spouse the likelihood former justify burden on modifica- may assistance public need is increased. occupancy. tion on the of homestead issue Abbott, feel the We to analyze. There is no modification policy apply public same considerations fact, weigh heavily here and in in our deci- presented This case was never as a modi- sion. fication sides on all case. two issues, by ap- except whether cohabitation Based on the trend Minnesota case considerations, policy pellant in- affect public law and acknowledge Supreme provision We that the contested the here at Minnesota respective provision arguments a similar to stand made their Court has allowed issue and Although appellant in a decree. See v. Rohl court. stated in her and trial (Minn.1986). ing, 379 523 How letter brief to the trial court that it had "discre- ever, Rokling disputed provision include the in the the cohabitation was tion” to decree, challenged by neither in that case this does not statement appear legal argument nor the court. case was de of her to the trial addressed Rather, grounds. appears cided fore, See id. 523. There court. the statement on other binding precedent as nothing acknowledgment to the issue more than an is not before trial court’s role as decisionmaker. us. parties, object- venting homestead. Both without from objecting to days format and without un-related male for 30 more with- either, do jurisdiction the court’s homestead.
presented two alternatives to Attorney appellant, course, argued gave (appellant’s home- version appropriate it would be more for the trial cohabitation clause stead without a (no court to select version no. cohab- gave appellant respondent’s version clause). But, letter, itation that same clause) homestead with a cohabitation and appellant’s acknowledged counsel the au- asked the court to choose one or the other. thority of accept the trial court to either appears
Appellant, appeal, on ar- depending now version on how the court gue is weighed somehow “modification” case the evidence: trial authority and the court had no to do arguments stated, Based on the above did. what it I note wrote to the while the Court has discretion judge, pertinent part: order that cohabitation with an un- Re: Plonske and Plonske related male more than be an could event to No.: Court File ability Respondent to collect his 53,671-001 Our File No.: evidence, really argu- there no no Judge Dear Swanson: ment that can offer to the award, you may As the above matter Court, that would cause the except settled all issues one—a protect select version no. 2 in order to triggering event that would cause the *5 legitimate right Respondent some granted satisfaction of the lien to Re- protected by can that be inclusion of spondent. triggering the additional event re- as presented is two ver- quested Respondent. Findings Fact, sions of the Conclu- argue not did the court had no Law, Judgment sions Order for and power to include cohabitation clause Judgment parties and Decree. The have because this and “modification” them, through each their there were no facts to a modifica- respective attorneys, would submit a let- Instead, appellant agreed tion. the court you respective posi- ter to in which their authority had the insert- either version argued. tions are You will then select * * * decree, opinion the dissolution in his his but the version you which deem is supporting clients’ evidence version no. 1 appropriate more in the circum- outweighed supporting the evidence ver- stances. Each believes Somehow, appeal, sion no. 2. system is eminently fair, and cer- majority analysis, the case has come tainly more cost and less time effective having posture where one was awarded oc- consuming matter ar- cupancy respondent improperly at- is gued by motion. formal tempting “modify” occupancy. sug- I 1, paragraph 8(b)(l-3) In version no. sets gest approach majority is incor- three forth items that would cause the rect. Whether homestead (i) lien be as satisfied follows: division, to property is tied as school, graduating high minor child et argues, support, or child ar- al.; (ii) remarriage; (iii) Petitioner’s gues, the trial court’s initial determination refinancing the home Petitioner. Ver- modify occupancy was not to but to set sion no. adds fourth item which is the I occupancy. terms find no error. co-habitation Petitioner with an un- related male for 30 or more. respondent’s trial The court selected ver- quite position sion, of Petitioner simple. is no. which included co- version marriage Once is dis- habitation clause issue. The trial court granted solved and the homestead why is did include as to her, there is no reason Respon- to allow no. 2 selected version over version no. 1. However, indirectly by pre- dent to control her life parties, by both letter to the trial version, having suggested includ- could retain the homestead without court with their 16, 1999, pay April lien until arguments. It reasonable his absent legal ed is their Rohling ap- triggering events. Mabel cross accepted trial court assume pealed did arguments. on other issues. She not com- With- weight respondent’s triggering clause elaboration, plain about the of cohab- they were: out reversed, indicating, itation. This court compelled 1. Plonske is to re- If Mrs. among things, that upon other her Mr. Plonske’s interest deem equitable erred it stated Carl’s lien compelled when remarriage, is not to do so but paid April need not be off before cohabitation, significant fi- absent event. incentive is created to defer mar- nancial riage. The supreme court reinstated the trial boy- If Mrs. Plonske were to have court’s decision and found reasonable the in, then friend move this divorce weighing eco- fsicl court’s overall merely replacement her hus- aspects marriage, nomic tieing up boyfriend his band with a while split of the assets. The court interest the homestead for a financial part: stated years, is funda- of ten more court awarded Mabel the district mentally unfair. equitable to an “platonic of a is a The notion renter” Carl, payable April favor on or before recipe continuing disputes between 1999. The court ruled if Mabel parties. house, remarry, were sell or co- opposite sex, habit with a member original) (Underlining in she off the would have to and if expected, Appellant, as had contra April 16, 1999, Mabel to die before were arguments. arguments of both payable upon lien would logic have a sound basis and fairness. death. nothing inappropriate find in the trial appeals held that this lien court's selection reasonable arrangement was an abuse discretion arguments appellant’s over ar- reasonable court effectively because the district de- guments. *6 receipt proceeds nied Carl the I disagree the majority with expectan- his lien end of his life until the Supreme Court Rohling Minnesota case of (Carl cy years 1999). be 75 old in would (Minn.1986) Rohling, The court remanded this issue to the dismissed be handled and in a footnote. “proper district court to calculate more It Rohling appealed pre- is true length time” for the lien to remain on cisely provision. on a cohabitation But eco- doing, In house. so court of Rohling nomic fairness Mabel was the appeals mandate violated the in Bollen- underlying why reason the Minnesota Su- bach, requires reviewing which court to preme this Court reversed court and rein- affirm property distribution that has an stated the trial court’s division of “acceptable in and principle.” basis fact affecting and other issues homestead occu- arrangement district court's pancy. In considering such a basis. trial, gave At the district court Mabel possible property distributions this homestead, Rohling to a lien case, the district court stated: Rohling payable favor of Carl on or before strongly believes that Pe- Triggering require events to her or titioner should be allowed remain in her off estate the lien sooner were unencumbered either death, remarriage, her selling the mortgage or the necessity second home, or cohabitation with a member Considering sale. forced Petitioner’s opposite sex. income, age either the fore- Rohling appealed claiming Carl certain going constitute undue hard- would and, ship. errors relative to the raised the alternatives could have Other spouse granting issue that it was unfair that his included the Petitioner maintain sufficient maintenance mortgage or to
payments on a second LONDON CONSTRUCTION occupation grant lifetime Petitioner COMPANY, Plaintiff, pursuant the homestead Minn.Stat. would alternative have 518.63. Either complex legal a more resulted in rela- TOWNHOMES, ROSEVILLE tionship between INC., al., Defendants, et Respondent a not afford more favor- result. able Company, Union Bank and Trust Id., words, In other supreme Respondent, accepted the trial court’s determina- Rohling Mrs. tion that should have Associates, P.A., Appellant. Rossini & to remain in allowed the homestead unen- mortgage cumbered a second or the No. C9-91-168. necessity (absent trigger- a forced sale Appeals Court of event which would not assumed of Minnesota. financially, selling hurt her such as Aug. 6, 1991. remarriage). house or I suggest Rohling supports the trial
court’s case decision for this reason. Rohling important trial court found give Mabel fixed number of years home as of an overall package
economic the. deemed fair to her. The Minnesota Su Court, preme in its of Rohling, review analysis court’s Rohling’s Yet, Mabel spite needs. trial court’s determination that Mabel Rohl- years needed a fixed number of in her
home, one of the events a sale
sooner would be cohabitation with someone opposite reviewing sex. court, of the trial aspersions court did not cast any or in way other discuss the cohabitation clause. suggest that if the cohabitation clause in *7 the initial decree had been unfair Rohling, to Mabel the trial court would not it, have inserted and the Minnesota Su Court, review, preme would not have passed it without comment. a modification case. It is a examining
direct from a final decree propriety of a trial court’s initial disso- monetary lution decree on matters. find discretion, the trial court did not abuse its law, existing did not misapply and should affirmed.