                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2014).

                                  STATE OF MINNESOTA
                                  IN COURT OF APPEALS
                                        A15-1407

                                         Mark L. Kness,
                                          Appellant,

                                               vs.

                           Judith M. Paulson, n/k/a Judith M. Cady,
                                         Respondent.

                                      Filed May 23, 2016
                                     Affirmed as modified
                                       Peterson, Judge

                                 Freeborn County District Court
                                    File No. 24-CV-13-2077

Douglas J. Mentes, St. Paul, Minnesota (for appellant)

Thomas J. Kraus, Waseca, Minnesota (for respondent)

         Considered and decided by Kirk, Presiding Judge; Peterson, Judge; and Jesson,

Judge.

                           UNPUBLISHED OPINION

PETERSON, Judge

         In this partition action, appellant argues that the district court erred in (1) dividing

potential sale proceeds, (2) addressing respondent’s home-equity line of credit (HELOC)

claim because the claim was barred by the rules of civil procedure, and (3) making findings

on the HELOC claim that are not supported by record evidence. We affirm as modified.
                                         FACTS

       Appellant Mark K. Kness and respondent Judith M. Paulson n/k/a Judith M. Cady

were in a relationship from 1995 until March 2013. They began living together in 1997.

Initially, they lived in a house that Cady owned.

       In 1999, the parties bought a house together at a price of $107,000. Cady paid

$28,093.70 from the sale proceeds of her house for the down payment on the new house,

and the parties obtained an $80,000 mortgage loan to pay the balance of the purchase price

and closing costs. The parties had no written agreement about how the property would be

paid for or how ownership would be divided between them. Both parties signed the

mortgage deed and note, and they agreed to own the property as joint tenants with a right

of survivorship.

       The initial mortgage loan was a 30-year loan with a 7.625% interest rate and a

monthly payment of $566.23. In 2003, the parties refinanced the loan to a 20-year term

with a lower interest rate. The refinanced loan was for $82,553.63, and the monthly

payment was $590.72. Kness made all of the payments on the initial loan and all of the

payments on the refinanced loan through July 2013. In 2007, the parties obtained a

HELOC in the amount of $16,900, of which $2,301.53 was used to pay delinquent property

taxes and $871.17 was used to pay for appliances for the home. Cady testified that, when

she signed the HELOC agreement, she believed that they were refinancing again and did

not understand that they were borrowing additional money against the house.

       The parties’ relationship ended in early 2013, and, in September 2013, Kness began

this partition action seeking a sale of the property and a division of the sale proceeds


                                             2
between the parties according to their respective interests. The case was tried to the court.

On March 6, 2015, the district court issued its findings of fact, conclusions of law, and

order for judgment.

        The district court found:

               [T]he parties had a mutual understanding that they would
               divide financial responsibilities after their purchase of the
               subject property as follows: (a) [Kness] would make the
               mortgage payments on the subject property and contribute his
               own skilled labor toward repairs and improvements to the
               subject property; (b) [Cady] and [Kness] would share in
               payments for real estate taxes and property insurance
               premiums; and (c) [Cady] would pay the rest of the household
               bills, including for natural gas, electricity, cable, water, sewer,
               groceries, and bills incurred for repairs or improvements to the
               subject property. [Cady] testified at trial that her monthly
               financial contributions to the household were greater than the
               mortgage payments made by [Kness], and that the reason for
               dividing the parties’ responsibilities for household bills in this
               fashion was that she was better at bookkeeping and record
               keeping than [Kness]. [Kness] testified at trial that it was
               understood at the time of purchase that [Kness] would
               contribute his labor towards repairs and improvements on the
               subject property because he was knowledgeable and skilled in
               this area.

The district court found that the parties intended their division of responsibilities to

approximate an equitable division and treated them as equal for purposes of resolving this

case.

        The district court made detailed findings about the parties’ contributions toward

improvements to the property during their cohabitation and about Cady’s payments for

improvements to the property after Kness moved out. In determining the parties’ interests

in sale proceeds, the district court credited Kness for his monetary payments toward



                                               3
improvements. The district court also found that Kness spent $13,727.30 of the HELOC

proceeds for his personal benefit and that Cady “was unaware of the nature of the HELOC

at the time of its establishment and received no direct personal benefit from the funds.”

The court found that Kness made the mortgage payments through March 2013 and credited

Cady with the mortgage-principal reduction that occurred after March 2013.

      The district court found

             that the parties’ interests in the property should be credited for
             the following contributions to the purchase or improvement of
             the subject property that fall outside of the parties’ mutual
             understanding regarding the division of financial contributions
             during their cohabitation:

 [For Kness]                                     [For Cady]
 $1,200.00 – Crew payment for driveway/garage    $28,093.70 – Down payment
 ($13,727.30) – HELOC (less tax & appliances)    $6,362.95 – Mortgage principal reduction
 $1,255.00 – Albert Lea Tree Services            $1,540.00 – June 2013 landscaping
                                                 $9,000.00 – July 2013 reroofing
 TOTAL: ($11,272.30)                             $1,008.00 – August 2013 gutter replacement
                                                 $1,712.98 – Early 2014 special assessment
                                                 $98.73 – Bathroom fixture replacement
                                                 $72.10 – Mailbox replacement
                                                 $2,761.36 – Interior refurbishments

                                                 TOTAL: $50,649.22

      The district court found that the property’s fair market value was $127,000. The

mortgage balance was $46,936.37 and the HELOC balance was $16,500, resulting in

potential sale proceeds of $63,564. After the district court credited Cady with the down

payment and the amount of her payments toward improvements and deducted the amount

of HELOC funds used by Kness for his personal benefit, $1,642.48 remained in potential




                                             4
sale proceeds. The district court divided that amount equally between the parties, which

resulted in an award of $821.24 to Kness.

        By order filed July 10, 2015, the court granted in part Kness’s motion for amended

findings and conclusions but denied his motion for a new trial. The district court found:

                      [Kness] made every monthly payment on the first and
               refinanced mortgages until July of 2013, despite moving out in
               March of 2013. . . . The monthly mortgage payments alone for
               the refinanced mortgage total $75,021.44, reducing the
               principal of the loan from $85,000 to $52,199 or a decrease in
               principal of $32,801 (interest payments amount to
               $42,220.44).[1]

Although the district court found that Kness made the mortgage payments through July,

rather than March, 2013, it did not reduce the mortgage-principal reduction credited to

Cady.

        This appeal followed the district court’s order on Kness’s posttrial motion.

                                       DECISION

                                               I.

        “In Minnesota, an action for partition of real estate is statutory and the court is

guided by the principles of equity in its decisions.” Anderson v. Anderson, 560 N.W.2d

729, 730 (Minn. App. 1997). An appellate court reviews “equitable determinations for

abuse of discretion.” City of N. Oaks v. Sarpal, 797 N.W.2d 18, 23 (Minn. 2011). A district

court abuses its discretion when its decision is based on an erroneous view of the law or it

makes a decision against logic and the facts on record. Id. at 24. This court will not set


1
  The order states that it is amending finding of fact no. 7, but it is finding of fact no. 20 in
the March 6, 2015 order that addresses the mortgage payments made by Kness.

                                               5
aside the district court’s factual findings unless they are clearly erroneous. County of Blue

Earth v. Turtle, 593 N.W.2d 258, 260 (Minn. App. 1999).

                        When two or more persons are interested, as joint
                tenants or as tenants in common, in real property in which one
                or more of them have an estate of inheritance or for life or for
                years, an action may be brought by one or more of such persons
                against the others for a partition thereof according to the
                respective rights and interests of the parties interested therein,
                or for a sale of such property, or a part thereof, if it appears that
                a partition cannot be had without great prejudice to the owners.

Minn. Stat. § 558.01 (2014). Sale proceeds are applied to pay the general costs of the

action, to pay the costs of the reference, and to satisfy liens, and the remainder is distributed

among the owners “according to their respective shares.” Minn. Stat. § 558.16 (2014). “A

[district] court’s decision regarding division of partition sale proceeds should not be

reversed absent an abuse of its discretion.” Glenwood Inv. Props., LLC v. Carroll A.

Britton Family Trust, 765 N.W.2d 112, 117 (Minn. App. 2009) (quotation omitted).

          “Where two persons are named grantees in a deed, the presumption is that their

interest in the land conveyed is equal. This presumption, however, is not conclusive, and

the true interest of each may be shown.” Dorsey v. Dorsey, 142 Minn. 279, 281, 171 N.W.

933, 934 (1919). Intent is determined by reference to the written documents “and to all the

facts and circumstances surrounding the transaction.” Gagne v. Hoban, 280 Minn. 475,

479, 159 N.W.2d 896, 899 (1968). Intent is a question of fact. Id. at 480-81, 159 N.W.2d

at 900.

          Kness argues that there was no basis or explanation for the court to separate the

down payment from all other contributions that the court found were part of the parties’



                                                 6
mutual understanding after the time of purchase. The record evidence supports the district

court’s finding that the parties had a mutual understanding that they would divide financial

responsibilities after purchasing the house together and that they intended their

contributions to these financial responsibilities to approximate an equitable division. The

evidence regarding the parties’ mutual understanding was sufficient to overcome the

presumption of equal interests, and the district court did not err in enforcing the parties’

agreement. Included in the parties’ agreement was the understanding that Kness would

contribute labor toward repairs and improvements and Cady would pay bills incurred for

repairs and improvements. The district court, therefore, properly credited the parties for

payments that each made for items that were outside of the parties’ agreement.2

       Kness argues that Cady should not have been credited for improvements that

occurred after the parties’ separation. But absent evidence that the parties intended their

agreement to change or end upon separation, the district court did not err in applying the

agreement to improvements made after separation. Kness also argues that Cady should

have been credited with only 50% of the cost of improvements that occurred after the

separation. Because the district court deducted the total cost of improvements from the

total potential sale proceeds, the result is the same as if Kness’s 50% share of the costs had

been deducted from his share of the potential sale proceeds.




2
 In her appellate brief, Cady expressly contends that “the district court did not abuse its
discretion in considering the parties’ respective contributions and calculating the amount
of contribution to apply to the parties[’] respective shares.”

                                              7
       The district court erred in calculating the amount of the mortgage-principal

reduction credited to Cady. The amount was based on the finding in the March 6, 2015

order that Kness made the mortgage payments through March 2013, which reduced the

principal balance to $53,567.72. But in the July 30, 2015 order, the district court found

that Kness made the payments through July 2013, which reduced the principal balance to

$52,199. Accordingly, we increase the balance remaining in the potential sale proceeds by

$1,368.72 and award one-half of that amount to Kness, which increases his award from

$821.24 to $1,505.60.

       Kness argues that he made many payments over and above the monthly mortgage

payments toward principal reduction and should be credited for the extra principal

payments.3 A handwritten ledger that Kness submitted shows payments greater than the

amount of the monthly mortgage payments, but the amounts in the handwritten ledger do

not correspond to the amounts shown in the printout of a bank record of mortgage

payments. The district court, therefore, did not err in not crediting Kness for principal-

reduction payments.4




3
  Kness cites exhibits 1, 2, and 3, but there is no exhibit 2. The first three exhibits admitted
at trial are numbered 1, 3, and 6, and we understand Kness to be referring to those exhibits,
which are a printout of a bank record showing mortgage payments, copies of canceled
checks, and a handwritten list of mortgage payments submitted by Kness.
4
  The bank record shows payments totaling $600.72 on July 10, 2003, $591 on November
15, 2010, $595 on May 4, 2011, and 20 payments of $600 between February 2011 and
March 2013, which totals an extra principal reduction of $200.16. But the bank record
does not indicate the source of the extra principal reduction payments, and the amounts do
not correspond to Kness’s canceled checks or handwritten ledger. This court, therefore,
cannot conclude that the district court erred in failing to credit Kness with this amount.

                                               8
                                             II.

       “In pleading to a preceding pleading, a party shall set forth affirmatively . . . fraud,

. . . and any other matter constituting an avoidance or affirmative defense.” Minn. R. Civ.

P. 8.03. “In all averments of fraud . . . the circumstances constituting fraud . . . shall be

stated with particularity.” Minn. R. Civ. P. 9.02. “A pleading shall state as a counterclaim

any claim which at the time of serving the pleading the pleader has against any opposing

party, if it arises out of the transaction that is the subject matter of the opposing party’s

claim.” Minn. R. Civ. P. 13.01.

       Kness argues that Cady’s claim that Kness used over $13,000 of the HELOC for his

personal benefit should not have been considered because Cady did not plead fraud. But

Cady did not claim that Kness committed fraud, and she did not assert an affirmative

defense or counterclaim. She testified that she understood the HELOC to be a type of

refinancing and that she was unaware of Kness’s use of the HELOC for his personal

benefit. The evidence supports the district court’s finding that Kness used $13,727.30 of

the HELOC for his personal benefit.

       Affirmed as modified.




                                              9
