dissenting.
I respectfully dissent. The majority analysis is built on cases where, after a dissolution decree with an occupancy provision has been in effect, a party came back into court and sought modification of that prior decree. There are cases setting forth the burden on a person seeking modification. Those cases do not control. This is not a case where one party is seeking to modify an award of occupancy of the homestead. This case involves only an appeal from the initial dissolution decree challenging the trial court’s determination on property division, child support, maintenance, and homestead occupancy. The burden is on appellant to show the trial court abused its discretion or committed an error of law. Appellant has not done so. There is no burden on respondent to justify modification on the issue of homestead occupancy. There is no modification to analyze.
This case was never presented as a modification case. The two sides agreed on all issues, except whether cohabitation by appellant would affect occupancy of the *915homestead. Both parties, without objecting to the format and without objecting to the court’s jurisdiction to do either, presented two alternatives to the trial court (appellant’s version gave her the homestead without a cohabitation clause and respondent’s version gave appellant the homestead with a cohabitation clause) and asked the court to choose one or the other.
Appellant, on appeal, now appears to argue this is somehow a “modification” case and the trial court had no authority to do what it did. I note appellant wrote to the trial judge, in pertinent part:
Re: Plonske and Plonske
Court File No.: 163605
Our File No.: 53,671-001
Dear Judge Swanson:
As you may be award, the above matter was settled on all issues except one — a triggering event that would cause the satisfaction of the lien granted to Respondent.
This Court is presented with two versions of the Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree. The parties have agreed that each of them, through their respective attorneys, would submit a letter to you in which their respective positions are argued. You will then select the version * * * which you deem is more appropriate in the circumstances. Each of the parties believes this system is eminently fair, and certainly more cost effective and less time consuming than having the matter argued by formal motion.
In version no. 1, paragraph 8(b)(l-3) sets forth three items that would cause the lien to be satisfied as follows: (i) the minor child graduating high school, et al.; (ii) Petitioner’s remarriage; and (iii) refinancing the home by Petitioner. Version no. 2 adds a fourth item which is the co-habitation by Petitioner with an unrelated male for 30 days or more.
The position of Petitioner is quite simple. Once the marriage to Respondent is dissolved and the homestead is granted to her, there is no reason to allow Respondent to control her life indirectly by preventing her from cohabitation with an un-related male for 30 days or more within the homestead.
Attorney for appellant, of course, argued it would be more appropriate for the trial court to select version no. 1 (no cohabitation clause). But, by that same letter, appellant’s counsel acknowledged the authority of the trial court to accept either version depending on how the court weighed the evidence:
Based on the arguments above stated, and while the Court has discretion to order that cohabitation with an unrelated male for a period of more than 30 days could be an event to trigger the ability of Respondent to collect his lien, there is no evidence, and really no argument that Respondent can offer to the Court, that would cause the Court to select version no. 2 in order to protect some a legitimate right of Respondent that can only be protected by inclusion of the additional triggering event as requested by Respondent.
Appellant did not argue the court had no power to include the cohabitation clause because this was a “modification” and there were no facts to support a modification. Instead, appellant agreed the court had the authority to insert- either version in the dissolution decree, but in his opinion his clients’ evidence supporting version no. 1 outweighed the evidence supporting version no. 2. Somehow, on appeal, and in the majority analysis, the case has come to the posture where one party was awarded occupancy and respondent is improperly attempting to “modify” occupancy. I suggest the approach of the majority is incorrect. Whether occupancy of the homestead is tied to property division, as respondent argues, or child support, as appellant argues, the trial court’s initial determination was not to modify occupancy but to set the terms for occupancy. I find no error.
The trial court selected respondent’s version, version no. 2, which included the cohabitation clause at issue. The trial court did not include an analysis as to why it selected version no. 2 over version no. 1. However, both parties, by letter to the trial *916court with their suggested version, included their legal arguments. It is reasonable to assume the trial court accepted the weight of respondent’s arguments. Without elaboration, they were:
1. If Mrs. Plonske is compelled to redeem Mr. Plonske’s interest upon her remarriage, but is not compelled to do so upon her cohabitation, a significant financial incentive is created to defer marriage.
2. If Mrs. Plonske were to have a boyfriend move in, then this divorce is fsicl merely been a replacement of her husband with a boyfriend while tieing up his financial interest in the homestead for a period of ten more years, which is fundamentally unfair.
3. The notion of a “platonic renter” is a recipe for continuing disputes between the parties.
(Underlining in original)
Appellant, as can be expected, had contra arguments. The arguments of both parties have a sound basis in logic and fairness. I find nothing inappropriate in the trial court's selection of respondent’s reasonable arguments over appellant’s reasonable arguments.
I disagree with the majority that the Minnesota Supreme Court case of Rohling v. Rohling, 379 N.W.2d 519 (Minn.1986) can be handled and dismissed in a footnote. It is true Rohling was not appealed precisely on a cohabitation provision. But economic fairness to Mabel Rohling was the underlying reason why the Minnesota Supreme Court reversed this court and reinstated the trial court’s division of property and other issues affecting homestead occupancy.
At trial, the district court gave Mabel Rohling the homestead, subject to a lien in favor of Carl Rohling payable on or before 1999. Triggering events to require her or her estate to pay off the lien sooner were her remarriage, her death, selling the home, or cohabitation with a member of the opposite sex. Id. at 523.
Carl Rohling appealed claiming certain errors and, relative to the lien, raised the issue that it was unfair that his spouse could retain the homestead without having to pay his lien until April 16, 1999, absent triggering events. Mabel Rohling cross appealed on other issues. She did not complain about the triggering clause of cohabitation. This court reversed, indicating, among other things, that the trial court erred when it stated Carl’s equitable lien need not be paid off before April 1999 absent a triggering event. Id. at 522.
The supreme court reinstated the trial court’s decision and found reasonable the trial court’s overall weighing of the economic aspects of the Rohling marriage, and its split of the assets. The supreme court stated in part:
The district court awarded Mabel the homestead subject to an equitable lien in favor of Carl, payable on or before April 16, 1999. The court ruled that if Mabel were to remarry, sell the house, or cohabit with a member of the opposite sex, she would have to pay off the lien, and if Mabel were to die before April 16, 1999, the lien would be payable upon her death.
The court of appeals held that this lien arrangement was an abuse of discretion because the district court effectively denied Carl the receipt of the proceeds of his lien until the end of his life expectancy (Carl would be 75 years old in 1999). The court remanded this issue to the district court to calculate a more “proper length of time” for the lien to remain on the house. In so doing, the court of appeals violated the mandate in Bollen-bach, which requires a reviewing court to affirm a property distribution that has an “acceptable basis in fact and principle.”
The district court's lien arrangement has such a basis. In considering the possible property distributions in this case, the district court stated:
The Court strongly believes that Petitioner should be allowed to remain in the homestead unencumbered by either a second mortgage or the necessity of a forced sale. Considering Petitioner’s age and income, either of the foregoing would constitute an undue hardship. Other alternatives could have included the granting of Petitioner *917maintenance sufficient to maintain payments on a second mortgage or to grant Petitioner lifetime occupation of the homestead pursuant to Minn.Stat. 518.63. Either alternative would have resulted in a more complex legal relationship between the parties and would not afford Respondent a more favorable result.
Id., at 523. In other words, the supreme court accepted the trial court’s determination that Mrs. Rohling should have been allowed to remain in the homestead unencumbered by a second mortgage or the necessity of a forced sale (absent a triggering event which would not be assumed to hurt her financially, such as selling the house or remarriage).
I suggest Rohling supports the trial court’s decision in this case for this reason. The Rohling trial court found it important to give Mabel Rohling a fixed number of years in her home as part of an overall economic package which the. trial court deemed fair to her. The Minnesota Supreme Court, in its review of Rohling, agreed with the trial court’s analysis of Mabel Rohling’s needs. Yet, in spite of the trial court’s determination that Mabel Rohl-ing needed a fixed number of years in her home, one of the events triggering a sale sooner would be cohabitation with someone of the opposite sex. In reviewing the analysis of the trial court, the supreme court did not cast aspersions or in any other way discuss the cohabitation clause. I suggest that if the cohabitation clause in the initial Rohling decree had been unfair to Mabel Rohling, the trial court would not have inserted it, and the Minnesota Supreme Court, on review, would not have passed it without comment.
This is not a modification case. It is a direct appeal from a final decree examining the propriety of a trial court’s initial dissolution decree on monetary matters. I find the trial court did not abuse its discretion, did not misapply existing law, and should be affirmed.