In re the Marriage of: Dawn Marie Mondus Loger v. Cory Scott Loger

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2280

In re the Marriage of:
Dawn Marie Mondus Loger, petitioner,
Respondent,

vs.

Cory Scott Loger,
Appellant.

Filed September 15, 2014
Affirmed; motions denied
Halbrooks, Judge

Anoka County District Court
File No. 02-FA-12-525

Dawn Marie Mondus Loger, Andover, Minnesota (pro se respondent)

Melanie P. Persellin, Jensen Sondrall & Persellin, P.A., Brooklyn Park, Minnesota (for
appellant)

Considered and decided by Cleary, Chief Judge; Halbrooks, Judge; and Hooten,

Judge.

UNPUBLISHED OPINION

HALBROOKS, Judge

Appellant challenges the district court’s entry of default dissolution judgment and

denial of his motion to vacate the default judgment. We affirm the judgment of the

district court and deny the motions brought by both parties on appeal.
 FACTS

Appellant Cory Scott Loger and respondent Dawn Marie Mondus Loger were

married in June 2000. They separated in March 2012, shortly before respondent

commenced this dissolution action by personal service of the summons and petition. In

the petition, respondent requested sole legal and physical custody of the parties’ four

minor children based on a history of domestic abuse, subject to appellant’s right to

reasonable parenting time. In April, the parties stipulated that respondent would have

exclusive use and occupancy of the marital home, and respondent agreed to dismiss her

application for an order for protection (OFP) against appellant. The parties also

stipulated to temporary custody and parenting-time arrangements.

Also in April 2012, respondent granted appellant an indefinite extension of time to

respond to the petition. Respondent asserts that the purpose of the extension was to allow

the parties to engage in financial early neutral evaluation (FENE). Although the district

court ordered the parties to exchange relevant documents and engage in FENE, appellant

never produced any documents. The neutral evaluator determined that the case was

inappropriate for FENE and returned the matter to the district court in May 2012.

On September 10, the district court ordered appellant to serve answers to

respondent’s discovery requests, which had been served months earlier, and ordered the

parties to attend two mediation sessions by the end of September. In October, the district

court ordered temporary joint legal custody, with sole physical custody to respondent,

regularly scheduled parenting time to appellant, and basic child support of $631 per

month. The next month, the parties appeared before the district court on respondent’s

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motion for an order to show cause. Appellant acknowledged that he had not yet

responded to respondent’s interrogatories and that he had not paid child support but

argued that he had a right to offset child-support payments with amounts that he had

spent on behalf of the children. The district court patiently explained to appellant that his

understanding of his child support and discovery obligations was flawed.1 The district

court instructed appellant, “Mr. Loger, I don’t know if you understand the seriousness of

what’s going on here. You are acting as your own attorney. I am going to hold you to

the same standard.”

In January 2013, the district court found appellant in constructive civil contempt

of court for his failure to pay child support or to comply with the district court’s

September 10 order to respond to respondent’s interrogatories. The district court

sentenced appellant to two consecutive 30-day stints in the Anoka County workhouse but

stayed the sentences on the conditions that appellant pay child support and fully and

accurately complete, sign, and serve his responses to respondent’s interrogatories by

February 23, 2013. The district court also awarded attorney fees to respondent, reserving

the amount. A review hearing was scheduled for the first week of April. As of March

22, 2013, appellant had not complied with the January contempt order, and respondent

filed and served a notice of intent to proceed by default. The district court notified the

parties that it would hear respondent’s default motion in conjunction with the review

hearing on the contempt order.

1
Appellant was represented by counsel at the initial case-management conference in
April 2012 but discharged his attorney by July 18, 2012, and proceeded unrepresented
until just after entry of default judgment in April 2013.

3
 At the April 5 hearing, both parties testified, and the district court inquired about

appellant’s failure to pay child support and his failure to comply with the district court’s

discovery orders. Appellant persisted in his claim that he was entitled to deduct amounts

he spent on the children’s expenses from his child-support obligation and asserted that he

was doing the best he could as a self-represented party.

The district court subsequently issued its findings of fact, conclusions of law, and

order for judgment, dissolving the parties’ marriage and awarding respondent sole legal

and physical custody, awarding child support, and ordering a parenting-time schedule

that was nearly identical to the temporary arrangement that was in place. Some of the

factual findings made by the district court were based on requests for admissions served

by respondent on October 5, 2012, and January 18, 2013, that appellant never answered,

and the district court deemed admitted.2

After entry of default judgment, appellant promptly retained counsel and moved

the district court to reopen the judgment, arguing that the district court failed to make

appropriate findings supporting its (1) custody determination, (2) upward deviation from

the child-support guidelines, and (3) award of attorney fees. Appellant argued that fraud

on the court as well as the interests of justice supported reopening the judgment.

2
Minn. R. Civ. P. 36.01 provides with respect to requests for admissions that “[t]he
matter is admitted unless within 30 days after service of the request . . . the party to
whom the request is directed serves upon the party requesting the admission a written
answer or objection.” Under Minn. R. Civ. P. 36.02, “[a]ny matter admitted pursuant to
this rule is conclusively established unless the court on motion permits withdrawal or
amendment of the admission.”

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Appellant asserted that he had never intended to default and that he had complied with

district court orders during the course of the litigation.

After a hearing on appellant’s motion, the district court found that appellant

“substantially failed to participate in this matter until after entry of the Judgment and

Decree” and that he “made no showing that he had a reasonable defense” due in part to

admissions that he made with respect to custody, child support, and attorney fees by

failing to respond to respondent’s requests for admissions. The district court reviewed

the Finden factors and determined that they did not as a whole favor granting appellant’s

motion. Thus, the district court denied appellant’s motion to reopen the judgment and

decree. This appeal follows.

DECISION

I.

Appellant argues that the district court abused its discretion in granting

respondent’s motion for default dissolution judgment and decree. The decision to grant

or deny a motion for a default judgment lies within the discretion of the district court, and

we will not reverse it absent an abuse of that discretion. Black v. Rimmer, 700 N.W.2d

521, 525 (Minn. App. 2005), review dismissed (Minn. Sept. 28, 2005).

The district court granted respondent’s motion for default judgment under Minn.

Stat. § 518.13, subd. 1 (2012), based on appellant’s failure to file an answer or any

pleadings. The district court also noted that appellant had been found in constructive

civil contempt based on his refusal to answer interrogatories and for nonpayment of child

support. Upon receipt of a petition for dissolution of marriage, a respondent has 30 days

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to answer the petition. Minn. Stat. § 518.12 (2012). “A party appears when that party

serves or files any document in the proceeding.” Minn. R. Civ. P. 5.01. “If the

respondent does not appear after service duly made and proved, the court may hear and

determine the proceeding as a default matter.” Minn. Stat. § 518.13, subd. 1. Appellant

was served with the summons and petition on March 19, 2012, and was therefore

required to answer by April 18, 2012. Appellant does not deny that he failed to file any

pleadings but argues that respondent granted him an extension to answer the petition and

failed to notify the district court that she had done so. But even assuming that the

extension was still valid, appellant also neglected to call it to the district court’s attention.

And aside from not filing an answer, appellant also failed to participate in any other

meaningful way in the litigation despite a series of motions and court orders that required

him to do so.

Although appellant personally appeared at all district court hearings over the

course of a year, he filed no pleadings, motion responses, prehearing statements, or other

documents. Appellant also refused to take part in a custody evaluation and failed to

respond in any meaningful way to respondent’s discovery requests. He failed to produce

any documents required for FENE. He neither responded to respondent’s default motion

nor at that point filed or served an answer to the petition. At the default hearing,

appellant informed the district court that he had not filed anything because he had hoped

to settle the case and because he lacked the requisite legal expertise. Appellant then

requested a continuance so that he could retain legal counsel.

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 This is not a circumstance in which a party learned of a default proceeding at the

last minute, appeared at the hearing, and requested a continuance. The district court

repeatedly explained to appellant that he was obligated to comply with court rules,

deadlines, and orders. Appellant had been served with the divorce petition more than a

year earlier, had attended a number of hearings, had been found in contempt of court

months earlier for his failure to comply with discovery and child-support obligations, and

had actual notice of the default petition. “Although some accommodations may be made

for pro se litigants, this court has repeatedly emphasized that pro se litigants are generally

held to the same standards as attorneys and must comply with court rules.” Fitzgerald v.

Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001). Even if the initial extension to

respond to the summons and petition was still valid in early March 2013, appellant was

surely on notice of its withdrawal no later than when he was served with the notice of

intent to proceed by default. By failing to file any pleadings—or respond to the default

motion—appellant failed to appear, and the district court did not abuse its discretion by

entering a default judgment under Minn. Stat. § 518.13, subd. 1.

II.

Appellant also challenges the district court’s denial of his motion to vacate the

default judgment, which we review for abuse of discretion. See Roehrdanz v. Brill, 682

N.W.2d 626, 631 (Minn. 2004). A dissolution decree is “final when entered, subject to

the right to appeal.” Minn. Stat. § 518.145, subd. 1 (2012). The proper method to seek

review of a default judgment in a marriage dissolution proceeding is to move the district

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court for relief under Minn. Stat. § 518.145 (2012).3 Mesenbourg v. Mesenbourg, 538

N.W.2d 489, 493 (Minn. App. 1995). The party seeking relief from a judgment bears the

burden of proof. Haefele v. Haefele, 621 N.W.2d 758, 765 (Minn. App. 2001), review

denied (Minn. Feb. 21, 2001).

The district court may relieve a party from a judgment and decree due to, among

other grounds, excusable neglect, misrepresentation, or fraud. Minn. Stat. § 518.145,

subd. 2(1), (3). Because appellant’s motion was made within one year of the entry of

judgment, the ordinary fraud standard is the correct standard to apply. See Doering v.

Doering, 629 N.W.2d 124, 130 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001).

Ordinary fraud in the context of a dissolution does not require intentional

misrepresentation or nondisclosure; rather, “failure of a party . . . to make a full and

complete disclosure constitutes sufficient reason to reopen the dissolution judgment.” Id.

at 129.

The district court’s findings as to whether the judgment was prompted by mistake

or fraud will not be set aside unless they are clearly erroneous. Hestekin v. Hestekin, 587

N.W.2d 308, 310 (Minn. App. 1998). A finding is clearly erroneous if this court is “left

with the definite and firm conviction that a mistake has been made.” Vangsness v.

Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (quotation omitted). When

applying the clearly erroneous standard, this court views the record in the light most

favorable to the district court’s findings. Id. That the record might support findings other

3
Appellant’s motion to the district court was premised on Minn. R. Civ. P. 60.02. The
district court correctly ruled that rule 60.02 does not apply to marriage dissolution
decrees.

8
than those made by the district court does not render the findings clearly erroneous. Id. at

474.

Appellant argues that respondent made material misrepresentations to the district

court about appellant’s failure to file a responsive pleading and about appellant’s

compliance with discovery. With respect to pleadings, appellant himself failed to assert

that he was still relying on the initial extension. Appellant fails to explain how

respondent “fail[ed] . . . to make a full and complete disclosure,” Doering, 629 N.W.2d at

129, by not making this argument for him. Similarly, the record does not support

appellant’s argument that respondent failed to disclose information about appellant’s

compliance with discovery. The record reflects that the district court was well acquainted

with appellant’s discovery deficiencies. Although the ordinary fraud standard is “less

strenuous” than that of fraud on the court, Doering, 629 N.W.2d at 129, the district court

did not clearly err in determining that the ordinary fraud standard is not satisfied here.

Although Minn. R. Civ. P. 60.02 does not apply to marriage dissolution decrees,

cases citing rule 60.02 have been relied on in applying Minn. Stat. § 518.145, subd. 2.

See, e.g., Peterson v. Eishen, 512 N.W.2d 338, 341 (Minn. 1994) (applying precedent

interpreting rule 60.02(d) in construing functionally identical language in section

518.145, subdivision 2(4)), superseded by rule on other grounds, Minn. R. Civ. P. 12.02,

as recognized in Fed.–Hoffman, Inc. v. Fackler, 549 N.W.2d 93, 95 (Minn. App. 1996),

review denied (Minn. Aug. 20, 1996). To be relieved from a default judgment under rule

60.02, the moving party has the burden of demonstrating: (1) a reasonable defense on the

merits, (2) a reasonable excuse for failure or neglect to act, (3) due diligence after notice

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of entry of judgment, and (4) absence of substantial prejudice to the opponent. Finden v.

Klaas, 268 Minn. 268, 270-71, 128 N.W.2d 748, 750 (1964). All four Finden factors

“must be proven, but a weak showing on one factor may be offset by a strong showing on

the others.” Reid v. Strodtman, 631 N.W.2d 414, 419 (Minn. App. 2001).

Reasonable Defense on the Merits

Appellant makes no explicit argument about his reasonable defense on the merits

with respect to the dissolution judgment itself. But he does argue that the district court

abused its discretion by failing to make adequate findings about (1) the best interests of

the children with respect to custody, (2) an upward deviation from the presumptive child-

support obligation, and (3) an award of attorney fees. “A reasonable defense on the

merits is one that, if established, provides a defense to the plaintiff’s claim.” Northland

Temporaries, Inc. v. Turpin, 744 N.W.2d 398, 403 (Minn. App. 2008), review denied

(Minn. Apr. 29, 2008). “Specific information that clearly demonstrates the existence of a

debatably meritorious defense satisfies this factor.” Palladium Holdings, LLC v. Zuni

Mortg. Loan Trust 2006-OA1, 775 N.W.2d 168, 174 (Minn. App. 2009) (quotation

omitted), review denied (Minn. Jan. 27, 2010).

Custody

Minnesota law requires the district court to consider a variety of factors “where

either joint legal or joint physical custody is contemplated or sought.” 2014 Minn. Laws

ch. 197, § 1 (amending Minn. Stat. § 518.17, subd. 2 (2012)). But in the case of domestic

abuse between the parents, which is supported by the record here, there is “a rebuttable

10
presumption that joint legal or physical custody is not in the best interests of the

child[ren].” Id.

The district court found that by failing to respond to respondent’s requests for

admissions, appellant admitted that “(1) [respondent] provides the primary care and

residency for the children; (2) [i]t is in the best interests of the minor children of the

parties to remain in [respondent’s] sole physical custody; (3) [appellant] engaged in acts

of domestic violence against [respondent] throughout the marriage; and (4) [i]t is in the

best interests of the minor children that [respondent] be granted sole legal custody . . . .”

The district court determined based on these admissions that appellant lacked a

reasonable defense on the merits with respect to custody. The district court also found

that appellant has no reasonable defense on the merits due to “his absolute failure to seek

a custody evaluation or provide any submission to the Court regarding the best interests

of the minor children.” These findings are well supported by the record. The district

court properly determined that an award of sole legal and sole physical custody is in the

children’s best interests.

Appellant now argues that despite the lack of any basis in the record for a different

custody ruling, the district court abused its discretion in denying his motion to vacate the

default judgment because the district court failed to analyze the 13 statutory best-interests

factors. “On appeal, a party cannot complain about a district court’s failure to rule in

[his] favor when one of the reasons it did not do so is because that party failed to provide

the district court with the evidence that would allow the district court to fully address the

question.” Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003), review

11
denied (Minn. Nov. 25, 2003). In light of the statutory presumption that sole custody is

in the children’s best interests, appellant’s failure to provide the district court with any

information bearing on the best interests of the children, and appellant’s admissions that

the children’s best interests would be served by granting sole legal and physical custody

to respondent, we conclude that the district court did not err in determining that appellant

has no reasonable defense on the merits with respect to its custody ruling.

Attorney Fees

In its January 2013 contempt order, the district court found that respondent was

entitled to attorney fees but reserved the amount. The district court later ordered

appellant to pay respondent $15,000 “toward the attorney fees she has incurred in this

matter associated with [appellant’s] failure to comply with [d]iscovery requests and his

contempt of court.” Appellant argues that the district court’s findings are insufficient to

support the award.

The district court has the discretion to award conduct-based attorney fees against a

party who unreasonably contributes to the length or expense of a proceeding. Minn. Stat.

§ 518.14, subd. 1 (2012). A district court may award attorney fees based on a party’s

failure to produce meaningful discovery. Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn.

App. 1987). The party moving for conduct-based fees has the burden to establish that the

adverse party’s conduct during the litigation process justifies an award. Geske v.

Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001).

By failing to respond to requests for admissions, appellant admitted under Minn.

R. Civ. P. 36.01 that respondent “[is] entitled to an award of $15,000 in attorney’s fees

12
due to his own actions and contempt of court.” Under Minn. R. Civ. P. 36.02, “[a]ny

matter admitted pursuant to this rule is conclusively established unless the court on

motion permits withdrawal or amendment of the admission.” Because the record amply

supports the district court’s finding that respondent incurred costs due to appellant’s

failure to comply with discovery and his contempt of court and because appellant

specifically admitted that $15,000 is an appropriate award, the district court did not abuse

its discretion in awarding conduct-based attorney fees in that amount.

Appellant also argues that respondent incurred no attorney fees for part of the time

period at issue. Although respondent proceeded unrepresented after entry of default

judgment, at all times relevant to the request for fees, respondent was represented by

counsel. Because the attorney-fee award is amply supported by the record, we conclude

that the district court did not err in finding that appellant has no reasonable defense on the

merits with respect to the attorney-fee award.

Additional Child Support

Appellant also challenges paragraph 6.iv of the district court’s conclusions of law

in the default judgment, labeled “Additional Support.” In this provision, the district court

ordered appellant to pay 71% “of all mutually agreed upon school and extracurricular

activities” and to be solely responsible for expenses associated with the children’s

participation in wrestling and any out-of-state tournaments that he attends with the

children.

Appellant argues on appeal that the district court abused its discretion by

(1) ordering appellant to pay 71% of mutually agreed-upon expenses, (2) ordering him to

13
pay 100% of wrestling expenses, and (3) by failing to make findings in support of what

he contends is an upward deviation from child-support guidelines. Appellant’s

arguments about his allocated percentage and the wrestling expenses are waived for

failure to raise the issues to the district court. See Thiele v. Stich, 425 N.W.2d 580, 582

(Minn. 1988) (“A reviewing court must generally consider only those issues that the

record shows were presented and considered by the trial court in deciding the matter

before it.” (quotation omitted)).

Appellant’s argument about the adequacy of findings is properly before us.

Appellant argues that paragraph 6.iv represents an upward deviation from his

presumptive child-support obligation and that the district court deviated upward without

making necessary findings. “If the court deviates from the presumptive child support

obligation computed under section 518A.34, the court must make written findings that

[address identified factors].” Minn. Stat. § 518A.37, subd. 2 (2012).

After entry of default judgment, the parties stipulated that “mutually agreed upon”

expenses under paragraph 6.iv were expenses that the parties had agreed to in writing

before incurring any expense. The district court referenced this stipulation—and the

August 22, 2013 order memorializing it—in its October 15 order denying the motion to

vacate the default judgment. Therefore, under the challenged provision, appellant is not

obligated to pay anything unless the parties mutually agree to the expenditure in advance.

Because the challenged expenses are not mandatory, they do not represent an upward

deviation from child-support guidelines, and the district court was not required to make

specific written findings under subdivision 2. The district court therefore did not err in

14
finding that appellant lacks a reasonable defense on the merits with respect to the child-

support award.

Excusable Neglect

The district court found that “[appellant] has no defense for his failure to act,”

noting that it had warned appellant that he would be held to the same standard as an

attorney. The district court identified appellant’s failures to file any pleadings, retain

counsel until after entry of judgment, answer interrogatories, pay child support, and

respond to the default motion. Appellant does not specifically dispute these findings but

argues that because he had been granted an extension to answer the petition and appeared

personally at all hearings, the district court should have found any neglect excusable.

“Neglect of the party itself which leads to entry of a default judgment is

inexcusable, and such neglect is a proper ground for refusing to reopen a judgment.”

Black, 700 N.W.2d at 527 (quotation omitted). The district court’s findings that appellant

himself, as contrasted with counsel, neglected the matter are amply supported by the

record. The district court properly found that appellant’s failure to participate

meaningfully in the litigation was inexcusable when he received proper notice of all

proceedings, received repeated warnings from the district court, was found in contempt of

court for his ongoing neglect of the matter, and failed to act even when faced with an

imminent threat of 60 days in the workhouse.

Due Diligence After Notice of Entry of Judgment

It is undisputed that appellant acted with due diligence after receiving notice of

entry of default judgment.

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 Absence of Substantial Prejudice to Opponent

The district court found that although, generally, additional expense and delay do

not rise to the level of substantial prejudice to the opponent, appellant’s showing on this

factor is weak due to his intentional delays. In general, when the only prejudicial effect

of vacating a judgment is additional expense and delay, “substantial prejudice of the kind

necessary to keep a judgment from being reopened does not exist.” Peterson v. Skutt

Ceramic Prods., Inc., 417 N.W.2d 648, 651 (Minn. App. 1987), review denied (Minn.

Mar. 18, 1988). But when a party’s delays are purposeful and the district court perceives

that the party is intentionally ignoring the process, “[t]he additional expense must be

viewed in a different light.” Black, 700 N.W.2d at 528 (quoting Hovelson v. U.S. Swim

& Fitness, Inc., 450 N.W.2d 137, 142 (Minn. App. 1990), review denied (Minn. Mar. 16,

1990)). The district court’s finding that appellant intentionally delayed this matter is

supported by the record. And because this is a dissolution judgment, finality of judgment

is of particular importance. Shirk v. Shirk, 561 N.W.2d 519, 521-22 (Minn. 1997). The

district court properly concluded that appellant has not met his burden of showing an

absence of substantial prejudice to respondent if the dissolution judgment is reopened.

III.

During the course of this appeal, respondent filed a motion to strike appellant’s

brief as untimely and nonconforming and asked this court to dismiss the appeal or,

alternatively, to deny oral argument. Respondent also seeks an award of costs incurred in

responding to the appeal. Appellant opposed respondent’s motion and seeks an award of

attorney fees incurred in responding to the motion.

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 The rules provide that an appellant has 30 days after delivery of the transcript to

serve and file a brief, with an additional three days if the transcript is delivered by United

States mail. Minn. R. Civ. App. P. 126.01, 131.01, subd. 1. The last transcript for the

appeal was delivered by mail on April 16, 2014. Appellant’s briefing deadline was

therefore May 19, 2014. Appellant’s brief was timely filed with the clerk of appellate

courts by hand-delivery on May 15, 2014, and timely served on respondent by United

States mail on May 15, 2014. See Minn. R. Civ. App. P. 125.03 (providing that service

by United States mail is complete on mailing). Respondent’s assertion that appellant’s

brief was untimely is therefore without merit.

Respondent also challenges appellant’s brief based on its 62-page length4 and its

failure to include a certificate of compliance with word-count or line-count limitations.

“Except for good cause shown and with permission of the appellate courts,” a principal

brief shall not exceed 45 pages, exclusive of pages containing the table of contents, table

of citations, and any addendum. Minn. R. Civ. App. P. 132.01, subd. 3. Alternatively, a

principal brief is acceptable if it contains no more than 14,000 words or it uses a

monospaced font and contains no more than 1,300 lines of text. Id., subd. 3(a). A brief

submitted under rule 132.01, subdivision 3(a), (b), or (c), must include a certificate that

the brief complies with the word-count or line-count limitation. Minn. R. Civ. App.

P. 132.01, subd. 3.

Appellant responded to respondent’s motion with a certification that appellant’s

principal brief “is 62 pages and consists of 13,988 words, inclusive of footnotes.” Based

4
Exclusive of tables of contents and citations.

17
on the certificate, appellant’s brief complies with the alternative length limitation of

14,000 words for a principal brief. Respondent’s motion to strike appellant’s brief and to

dismiss the appeal is therefore denied.

Respondent also moved this court to deny appellant’s request for oral argument.

Although appellant requested oral argument, this appeal was scheduled for nonoral

consideration because respondent is self-represented. See Minn. App. Spec. R. Pract. 2

(“If any litigant is without counsel, the case will be submitted on the briefs and record,

without oral arguments by any party.”). Respondent’s motion to deny oral argument is

denied as moot.

Respondent also requests costs in her motion. A prevailing party may file and

serve a notice of taxation of costs and disbursements within 15 days after the filing of this

court’s opinion. Minn. R. Civ. App. P. 139.03. At the time the motion was filed, the

appeal had not been decided on the merits, and the request was premature. See id.

Respondent’s motion for costs is denied as premature.

Appellant, in turn, seeks an award of attorney fees incurred in responding to

respondent’s motion. A party seeking attorney fees on appeal shall submit such a request

by motion. Minn. R. Civ. App. P. 139.06, subd. 1. Appellant did not file a motion

documenting the appropriate amount of fees. Appellant’s request for attorney fees does

not comply with Minn. R. Civ. App. P. 139.06. But even if appellant had filed a proper

motion, we would deny fees because appellant did not demonstrate a substantive basis for

an award of attorney fees. Respondent’s motion to strike would not have been filed if

appellant had provided a certificate of brief length with the brief as directed by Minn. R.

18
Civ. App. P. 132.01, subd. 3. Appellant’s motion for an award of attorney fees incurred

in responding to respondent’s motion is denied.

Affirmed; motions denied.

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