Opinion
No. C9-99-995.
Filed December 21, 1999.
Appeal from the District Court, Hennepin County, File No. 200722.
Richard D. Goff, Richard D. Goff Associates, (for Gary F. Liebscher)
A. Larry Katz, Brian L. Sobol, Katz Manka, Ltd., (for Anita C. Liebscher)
Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
In these consolidated appeals following a remand by this court, Gary Liebscher alleges the district court violated the remand instructions by awarding certain property to Anita Liebscher and Anita Liebscher alleges the remand instructions improperly required the district court to divide the marital property inequitably. We affirm the district court and deny Gary Liebscher's motion to submit additional written argument.
DECISION
On remand, a district court is to
execute the mandate of [the appellate court] strictly according to its terms. The trial court has no power to alter, amend, or modify [the appellate court's] mandate.
Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982) (citation omitted); see Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn.App. 1988) (citing Halverson in a dissolution matter).
I.
The remand instructions in this court's prior opinion stated that if, after reapportioning property, Anita Liebscher's half-interest in the marital estate exceeded the value of the assets awarded to her "the trial court shall award her either an interest in [a Florida property] or a judgment against [Gary Liebscher]." Liebscher v. Liebscher, No. CX-97-1620, 1998 WL 268087, at *4 (Minn.App. May 26, 1998), review denied (Minn. July 30, 1998). On remand, after determining the assets awarded to Anita Liebscher were worth less than half the marital estate, the district court awarded the Florida property to her and ordered her to sell the property and deposit in an escrow account the difference between the property's value and the amount owed to her by Gary Liebscher. The district court explained that it fashioned the property award in this manner both to achieve an equal property distribution and to secure Gary Liebscher's obligations to pay to Anita Liebscher the previously awarded maintenance arrears and attorney and expert fees.
Gary Liebscher argues that because issues involving security for maintenance and fees were not remanded to the district court, they were not properly before the district court and cannot be used to justify an award of the Florida property to Anita Liebscher. We disagree. While issues decided in an appeal become "law of the case" and may not be relitigated in the trial court or a later appeal, that prohibition applies only to litigated issues and does not apply to issues that were not litigated. Sigurdson v. Isanti County, 448 N.W.2d 62, 66 (Minn. 1989).
Here, the propriety of awarding Anita Liebscher security for Gary Liebscher's obligations was not addressed in the prior opinion. Therefore, the district court did not lose the ability to address that issue. Moreover, we conclude the district court's manner of addressing the issue was within its discretion. See Minn. Stat. § 518.14, subd. 1 (1998) (stating when attorney fees are awarded, district court may authorize their collection by any manner within court's power, including from sequestered property); Minn. Stat. § 518.24 (1998) (stating when maintenance is not paid, district court may sequester obligor's estate); see also Peterson v. Peterson, 304 Minn. 578, 580-81, 231 N.W.2d 85, 87 (1975) (affirming, as within district court's discretion under Minn. Stat. § 518.24, order requiring party to pay attorney fees and maintenance arrears from savings account and sequestering balance of account to secure future payments). We conclude the district court did not exceed its authority.
II.
Anita Liebscher argues that this court's remand instructions compel an inequitable property distribution and therefore the district court erred in concluding it was required to comply with those instructions. See Minn. Stat. § 518.58, subd. 1 (1998) (requiring district court to equitably divide marital property). But once the supreme court denied review of this court's prior opinion, the opinion became final and the district court was required to follow its instructions on remand. Hoyt Inv. Co. v. Bloomington Commerce Trade Ctr. Assocs., 418 N.W.2d 173, 176 (Minn. 1988); cf. Minn.R.Civ.App.P. 140.01 (stating no petition for rehearing allowed in court of appeals); Lenhart v. Lenhart Wagon Co., 211 Minn. 572, 573-74, 2 N.W.2d 421, 422 (1942) (granting mandamus to compel district court to hear case stating that "[r]ight or wrong," supreme court's prior decision required trial on merits). Therefore, we need not address Anita Liebscher's argument that the property distribution is inequitable, but conclude that because of the finality accorded this court's prior opinion and the district court's duties under that opinion, the district court did not err by following the remand instructions. In light of our disposition of Anita Liebscher's claims on this issue, we deny, as unnecessary, Gary Liebscher's motion to submit additional written argument.