Opinion
A22-1491
08-14-2023
In re the Marriage of: Michelle Moua Ly, petitioner, Respondent, v. Gaetan Ly, Appellant.
Office of Appellate Court Hennepin County District Court File No. 27-FA-20-5407
Considered and decided by Worke, Presiding Judge; Ross, Judge; and Cleary, Judge. [*]
ORDER OPINION
Renee L. Worke, Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. The judgment dissolving the marriage of appellant Gaetan Ly (husband) and respondent Michelle Moua Ly (wife) divided the parties' marital property and awarded wife conduct-based attorney fees under Minn. Stat. § 518.14, subd. 1 (2022), for husband's discovery violations. Neither party made a posttrial motion.
2. Husband did not provide a trial transcript for this appeal.
3. Generally, absent a posttrial motion, appellate review is limited to the substantive issues properly before the district court, whether the evidence supports the findings of fact, and whether the findings support the conclusions of law and the judgment. See Alpha Real Est. Co. v. Delta Dental Plan, 664 N.W.2d 303, 308-09, 311 (Minn. 2003) (substantive issues); Gruenhagen v. Larson, 246 N.W.2d 565, 569 (Minn. 1976) (whether the evidence supports the findings and whether the findings support the conclusions of law and judgment). Here, the lack of a transcript further limits review by precluding us from reviewing whether the evidence supports the findings of fact. Fischer v. Simon, 980 N.W.2d 142, 144 (Minn. 2022); In re Montez, 812 N.W.2d 58, 66 (Minn. 2012).
4. A failure to produce discovery can allow a district court to draw an inference adverse to the offending party. Solon v. Solon, 255 N.W.2d 395, 396 (Minn. 1977). We reject husband's assertion that the district court had to draw an unfavorable inference against wife regarding the transfer of funds from certain accounts. Husband cites no authority requiring, as opposed to merely permitting, a district court to draw an adverse inference. Also, because we lack a transcript, the testimony based on which husband wants us to reverse the district court's failure to draw an adverse inference is not before us. Further, the district court's findings-which, given the lack of a transcript, we must accept-state that wife "testified credibly that she transferred [the funds] to separate accounts for the children prior to the parties' separation [pursuant to] the parties' agreement." The record before us provides no basis to reverse the district court's refusal to draw an adverse inference against wife.
5. With exceptions not relevant here, a district court "shall" compensate a party if it finds that party's (former) spouse improperly disposed of marital assets "without consent of the other party." Minn. Stat. § 518.58, subd. 1a (2022). Because we must accept the district court's finding that wife transferred the funds in question pursuant to "the parties' agreement," we reject husband's argument that, under Minn. Stat. § 518.58, subd. 1a, he is entitled to compensation for wife's transfer of those funds.
6. If husband is asserting that the district court made separate awards to wife of $1,649 in attorney fees, and an additional $650 for filing fees, husband is incorrect. The total award is $1,649; $999 in attorney fees and $650 in filing fees. On this record and given the answers we received at oral argument in this court, we cannot be sufficiently certain of the relevant facts to invoke judicial notice under Minn. R. Evid. 201(d) to reduce the award of $650 in filing fees.
7. A court may "award attorney fees 'against a party who unreasonably contributes to the length or expense of the proceeding.'" Buckner v. Robichaud, __ N.W.2d__, __No. A21-1549, 2023 WL 4340153, at *3 (Minn. July 5, 2023) (quoting Minn. Stat. § 518.14, subd. 1). Under Minn. R. Gen. Pract. 119.01, a motion seeking attorney fees of $1,000 or more must be supported by the affidavit described in the rule. On appeal, "[a]n award of conduct-based attorney fees is reviewed for an abuse of discretion." Brodsky v. Brodsky, 733 N.W.2d 471, 476 (Minn.App. 2007); see Woolsey v. Woolsey, 975 N.W.2d 502, 506 (Minn. 2022) (defining an abuse of discretion). An award of conduct-based attorney fees can be remanded if it is unsupported by sufficient explanatory findings of fact. Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn.App. 1992).
8. Husband's argument that "[he] complied with the discovery order" is inconsistent with the district court's finding that husband's "delay in providing business-related financial documents to [wife] caused her to file a motion to compel discovery and incur unnecessary fees." Therefore, we reject the argument.
9. While the district court's fee-related findings of fact are limited, we decline to remand. The district court found that wife sought $15,160 in fees for discovery problems but failed to provide the affidavit described in rule 119.01. The district court also characterized the discovery problems as "extreme." Our review of this record convinces us that remanding for additional findings of fact will not alter the $999 fee award made by the district court. See Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985) (declining to remand when, on remand, the district court "would undoubtedly make findings that comport with the statut[e]" and reach the same result); Tarlan v. Sorensen, 702 N.W.2d 915, 920 n.1 (Minn.App. 2005) (citing Grein).
10. The parts of husband's brief that wife moves this court to strike are not relevant to our rulings, above. Therefore, we deny the motion to strike as unnecessary.
IT IS HEREBY ORDERED:
1. The district court's judgment is affirmed.
2. Respondent's motion to strike is denied as unnecessary.
3. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.