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Enforcing the Sale of the Home After Divorce

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Enforcing the Sale of the Home After Divorce A version of this article was printed in Minnesota Lawyer™ on May 12, 2014. Reprints are available from Minnesota Lawyer at minnlawyer.com or by calling 612-333-4244. Enforcing the Sale of the Home After Divorce by Alan C. Eidsness and Jaime Driggs Minn. Stat. § 518A.39, subd. 2(f). A 1577112, at *2 (Minn. Ct. App. Oct. 24, fine line exists between impermissibly 2000) (affirming order granting The entry of the modifying an otherwise final division of husband exclusive right to sell home dissolution judgment property, and issuing an order that where parties could not cooperate is the end to the appropriately enforces the division of with respect to listing home for sale). marriage, but it may property as set out in the decree. If a party has failed to sell the home by not be the end of the Generally speaking, courts have a required deadline, the court can set litigation. Even in considerable latitude to “implement, the listing price. Linder v. Linder, 391 Alan C. Eidsness cases that do not enforce, or clarify the provisions of a N.W.2d 5, 8 (Minn. Ct. App. 1986) involve children or decree, so long as it does not change (affirming order setting listing price ongoing spousal the parties’ substantive rights.” where wife was required to sell home maintenance Redmond v. Redmond, 594 N.W.2d to satisfy husband’s lien by a given obligations, problems 272, 275 (Minn. Ct. App. 1999). Thus, date and had failed to do so). The can arise with respect when it comes to addressing post- court can also prospectively order to enforcing the decree disputes concerning a home, reductions in the listing price to division of property. Jaime Driggs the court has a lot of power. facilitate a sale and require a party to For many people, Discerning when the exercise of that accept offers within a given range. their home is their most valuable asset power crosses the line is intensely fact- Linder, 391 N.W.2d at 8; Dahlen, 2000 and one which will require some type specific. WL 1577112, at *2 (affirming of action after the dissolution in order A common problem is where the establishment of listing price and to implement the division of property. decree calls for the sale of the home scheduled reductions). Even seemingly Obligations to sell the home and divide but the parties cannot seem to draconian price reductions have been the proceeds or satisfy a lien against implement that provision or the party approved where a sale has dragged on the home result in post-decree who is charged with selling the home is for years. Tagg v. Tagg, 2014 WL entanglement and countless dragging their feet. The court can 1407791, at *5 (Minn. Ct. App. Apr. 14, opportunities for conflict. grant one party the power to select the 2014) (affirming order requiring listing Unlike child support and spousal realtor and to be in charge of the sale. price be reduced by $40,000 per maintenance, which have well-defined Sullivan v. Sullivan, 374 N.W.2d 517, month where parties had had series of enforcement tools such as automatic 519 (Minn. Ct. App. 1985) (affirming conflicts over five year period and had income withholding, contempt, and order establishing deadline for realtor- been unable to effect sale). sequestration, the options for husband to sell home and directing If a party’s occupancy of the home enforcing the sale of a home are more wife to select a realtor if home had not is compromising efforts to sell, the limited. One of the reasons for this is been sold where parties were having court can order the party to vacate the that divisions of property are, by difficulty agreeing on price and terms home. Zweifel v. Zweifel, 2013 WL definition, final and not modifiable. of sale); Dahlen v. Dahlen, 2000 WL 1788512, at *4 (Minn. Ct. App. Apr. 29, 2013) (affirming order requiring wife to to punish, care must be taken to avoid modification. See Stromberg v. vacate homestead because she had altering a party’s substantive rights. Stromberg, 397 N.W.2d 396, 399 repeatedly hindered efforts to sell, This is generally measured in dollars (Minn. Ct. App. 1986) (reversing order including refusing to provide a key to and cents by comparing what the party requiring sale of homestead at public the realtor and refusing to allow the is receiving to what they would have auction where decree required sale realtor’s placement of a lockbox); Jones received under the original decree. See and parties had been unable to v. Jones, 2000 WL 462620, at *1-2 Hanson v. Hanson, 379 N.W.2d 230, implement sale for three years). (Minn. Ct. App. Apr. 25, 2000) 233 (Minn. Ct. App. 1985) (affirming Another way a party’s substantive (affirming order requiring husband to conversion of personal property award rights can be altered is if no provision is vacate homestead because he had to cash award where parties were made to ensure that the sale proceeds damaged homestead and was unable to divide personal property and are distributed in accordance with the interfering with efforts to sell as “[n]either party received more or less decree. Alexander-Knight v. Knight, required by judgment and decree). than each received under the original 2008 WL 4977430, at *9 (Minn. Ct. However, there must be sufficient judgment and decree”). App. Nov. 25, 2008) (reversing transfer evidence showing a causal link One way a party’s substantive of title from wife to husband in between a party’s continued rights can be altered is by granting a connection with enforcing wife’s lien occupancy and the lack of sale to party authority to sell the property against homestead where order failed justify ordering a party to vacate. See who lacks any motivation to obtain a to provide that proceeds in excess of O’Connor v. O’Connor, 386 N.W.2d 395, fair price. In Rambow v. Rambow, the wife’s lien be paid to husband). A 398 (Minn. Ct. App. 1986) (affirming court of appeals reversed an order party’s substantive rights also are denial of motion to vacate where wife granting wife authority to sell property altered where a court declines to accused husband of failing to keep awarded to husband to satisfy wife’s enforce a specific term in the decree home in showing condition and lien because wife “has no incentive to requiring the sale of property. Hoye v. husband claimed house was not selling protect [husband’s] interest in the Hoye, 2001 WL 32775, at *2 (Minn. Ct. because of its location and the property and can adversely affect his App. Jan. 16, 2001) (holding district reputation of the school district). interest by selling at a price that court erred by not enforcing provision In extreme situations, the court satisfies only her interests” 2008 WL requiring sale of property based on can even amend the judgment to 1748285, at *2 (Minn. Ct. App. Apr. 15, husband’s failure to make rental transfer title from one party (or the 2008). Although this issue was not payments to wife even though parties together) to the other to discussed in the Dahlen opinion which husband had cured his default by the implement a sale. Dahlen, 2000 WL granted husband exclusive authority to time of the hearing). 1577112, at *3 (affirming ex parte sell, the same motivation concern was Where a decree does not specify order transferring title to husband not present because the sale proceeds whether a lien is enforceable by a where he had been granted authority in Dahlen were to be split equally judicial sale or foreclosure, the court to sell, wife’s attorney had been between the parties. 2000 WL may order either option. Potter v. notified that husband would be 1577112, at *3. Similarly, issuing Potter, 471 N.W.2d 113, 115 (Minn. Ct. allowed to sign paperwork for wife if orders regarding the conditions for the App. 1991) (rejecting husband’s she failed to appear for closing, and sale which are likely to result in a party argument that order for judicial sale to wife failed to appear for closing); receiving less than fair market value for enforce wife’s lien altered his Jones, 2000 WL 462620, at *2 their interest can affect a party’s substantive rights because he would (affirming transfer of title to wife substantive rights. See Ulrich v. Ulrich, lose right of redemption afford to him where husband failed to comply with 400 N.W.2d 213, 218 (Minn. Ct. App. through foreclosure process where orders to sign listing agreement); Tagg, 1987) (reversing order for private sale decree did not specify method for 2014 WL 1407791, at *3-4 (affirming to highest bidding party where enforcing lien); Erickson v. Erickson, transfer of title to wife where husband husband had no ability to bid and wife 452 N.W.2d 253, 256 (Minn. Ct. App. failed to comply with order to sign could purchase husband’s interest with 1990) (affirming order permitting wife purchase agreement and had a nominal bid). to enforce her lien through foreclosure previously been warned that court Even where a court’s order where decree did not specify method would order sale). concerning the sale affects both for enforcing lien). Although the temptation when parties’ rights the same way, it may Finally, a word of caution about faced with a misbehaving party may be nonetheless be an impermissible the case law. The starting point for 2 determining whether a division of property has been impermissibly modified is the language of the decree itself.
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