In re Marriage of Creen v. Creen, No. A05-2347 (Minn. App. 11/28/2006)
| Decision Date | 28 November 2006 |
| Docket Number | No. A05-2347.,A05-2347. |
| Parties | In re the Marriage of: Judy Marie Creen, petitioner, Respondent, v. Michael Thomas Creen, Appellant. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Chisago County, File No. 13-F9-04-001357.
James F. Schneider, Butts, Sandberg & Schneider, LLP, (for respondent)
Michael T. Creen, (pro se appellant)
Charlene Larsen, (guardian ad litem)
Considered and decided by Ross, Presiding Judge; Willis, Judge; and Dietzen, Judge.
UNPUBLISHED OPINION
In this marital-dissolution proceeding, pro se appellant husband argues that the district court (1) lacked jurisdiction over the proceeding; (2) abused its discretion when it denied husband's requests for an order compelling discovery by respondent wife; and (3) abused its discretion when it divided the parties' property because it considered husband's criminal record in the process and inequitably distributed the marital property. Because we conclude that the district court did not lack jurisdiction and did not abuse its discretion, we affirm.
Respondent wife Judy Creen and appellant husband Michael Creen were married on October 21, 1978. They co-owned a home in Center City, Chisago County, until late 2004. Husband was incarcerated at the Minnesota Correctional Facility in Moose Lake from January 2004 until sometime after he filed this appeal. He is now at the Prairie Correctional Facility in Appleton. The parties' four minor children live with wife. Wife accepted employment in June 2004 with the State of Wisconsin as a corrections officer. In July 2004, she moved the four minor children and some of the parties' household possessions to a home she began renting in Wisconsin, but she continued to maintain the home in Chisago County. In August 2004, husband was served with a petition for dissolution, which was filed in Chisago County.
Husband, appearing pro se, sought dismissal of the case in October 2004 based on his allegation that wife was not a resident of Minnesota and did not reside in Chisago County at the time that she filed the petition for dissolution. Wife, in turn, moved for an order directing the sale of the parties' home and directing that one-half of the proceeds be given to wife and the other half be held in trust pending an agreement between the parties or a court order. The district court determined, in a November 22, 2004 order, that the matter was appropriately venued in Chisago County. It also granted wife's motion regarding the sale of the home and disposition of the proceeds and directed that wife make husband's canoe, tractor, and picnic table available to him.
Husband filed two motions in January 2005. The first asked the district court to order that $5,000 of the proceeds of the sale of the parties' home be released to husband to pay legal fees—husband had been unrepresented to that time—and $ 6,000 be released to husband's brother for repayment of a Sallie Mae student loan that husband's brother had cosigned for the benefit of the parties' oldest child. Husband's second motion asked the court to compel wife to respond to certain discovery requests made by husband. In a February 25, 2005 order, the district court agreed that husband was entitled to money for attorney fees to ensure adequate representation of his rights in the dissolution proceeding and ordered that $ 2,500 be paid directly to an attorney designated by husband but denied husband's motion to compel discovery, finding that wife's discovery responses were appropriate and complete.
The dissolution trial was held on June 17, 2005, and the district court entered judgment awarding wife the remaining net proceeds of the sale of the parties' home, the money in her retirement account, and the family vehicle but also assigning to her all responsibility for the parties' marital debt. Husband was awarded all of his personal, nonmarital property that remained in storage at the parties' home. He appeals from the dissolution judgment.
Husband objects to the district court's "judicial jurisdiction" over the dissolution. It is unclear from his brief and from his motion below whether he objects to the district court's exercise of jurisdiction, to venue, or to both. Wife argues both that the district court properly exercised jurisdiction over the matter and that Chisago County was a proper venue. We agree.
To the extent that husband argues that this matter was improperly venued in Chisago County, his argument fails. The relevant portion of Minn. Stat. § 518.09 (2004) provides: "A proceeding for dissolution or legal separation may be brought by either or both spouses and shall be commenced by personal service of the summons and petition venued in the county where either spouse resides." And Minn. Stat. § 518.003, subd. 2 (2004), defines "residence" as "the place where a party has established a permanent home from which the party has no present intention of moving." We review a district court's determination of proper venue in a family-law case under an abuse-of-discretion standard. Toughill v. Toughill, 609 N.W.2d 634, 642 (Minn. App. 2000).
The district court treated husband's motion to dismiss as an objection to venue and found Chisago County to be the appropriate venue for the dissolution matter because, at the time, the parties co-owned a home in Chisago County; wife maintained Chisago County as her permanent address, although she temporarily resided in Wisconsin; and husband's permanent address remained in Chisago County, although he was temporarily incarcerated in Carlton County.
The record supports the district court's determination that wife's "permanent residence" at the time she filed the petition for dissolution was Chisago County. Even if husband were correct, and wife had established a permanent home in Wisconsin and had no present intent to move, husband's residence for venue purposes remains Chisago County. His incarceration is temporary, and he does not claim that, at the time that this proceeding was commenced, he intended to reside in Carlton County permanently. Venue is proper where either spouse resides. Minn. Stat. § 518.09. The district court's determination that Chisago County is the proper venue for this matter was not an abuse of discretion.
Because the district court's denial of husband's motion to dismiss was based on a determination of proper venue, the issue of whether the district court had statutory authority under Minn. Stat. § 518.07 (2004) to exercise jurisdiction over the dissolution proceeding was not considered by the district court and is therefore not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (). But even if we were to consider husband's apparent objection to the district court's exercise of jurisdiction on the ground that wife was not a resident of Minnesota at the time that she served the petition for dissolution, we would conclude that his argument is without merit. Minnesota courts may exercise jurisdiction in a dissolution proceeding under Minn. Stat. § 518.07 when "one of the parties has resided in this state . . . for not less than 180 days immediately preceding the commencement of the proceeding." The district court determined that wife maintained her permanent residence in Minnesota, but even if husband were correct that wife was a resident of Wisconsin at the time she commenced the proceeding, the fact that husband resided in Minnesota at that time and for at least the preceding 180 days was sufficient to authorize the district court to exercise jurisdiction over the dissolution proceeding.
Husband cites Wyman v. Wyman, 297 Minn. 465, 212 N.W.2d 368 (1973), which dismissed a counterclaim for dissolution on the ground that the counterclaim plaintiff was not a resident of Minnesota. Wyman was decided in 1973 when the residency provision of the dissolution statute required that the petitioner be a resident of the state; the provision was amended in 1978 to authorize the exercise of jurisdiction if either of the parties is a resident of the state. See Minn. Stat. § 518.07; 1978 Minn. Laws, ch. 772, § 24, at 1070. Therefore, Wyman is inapposite. The district court properly exercised jurisdiction over the dissolution proceeding.
Husband claims that the district court "deprived [him] of his rights to a fair trial" by not requiring wife to provide "any" discovery. "[T]he trial judge has wide discretion to issue discovery orders and, absent clear abuse of that discretion, normally its order with respect thereto will not be disturbed." Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990). Husband's claim that the district court denied him an opportunity to conduct discovery is unsupported by the record. Wife responded to discovery requests, although husband claims that her responses were inadequate. After reviewing husband's requests and wife's responses, the district court concluded that The district court did not abuse its discretion by denying husband's motion to compel discovery.
Minn. Stat. § 518.58, subd. 1 (2004), provides:
Upon a dissolution of a marriage, . . . the court shall make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property. The court shall base its findings on all relevant factors including the length of the marriage, any prior marriages of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs,...
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