This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-99-1059

In Re the Marriage of:
Brenda Kay Berends, petitioner,
Respondent,

vs.

Douglas Leroy Berends,
Appellant.

Filed February 15, 2000
Affirmed in part, reversed in part, and remanded
Mulally, Judge[*]

Anoka County District Court
File No. F99312921

Gary K. Wood, 4932 Poppy Lane, Edina, MN 55435 (for respondent)

Peter H. Watson, 205 Commerce at the Crossings, 250 Second Avenue South, Suite 205, Minneapolis, MN 55401 (for appellant)

Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N

MULALLY, Judge

Douglas Leroy Berends appeals from the district courtís decision granting respondent Brenda Kay Berendsís motion to: (1) vacate the previous stipulation and order reducing child-support payments; (2) reopen the issue of child support payable by appellant to respondent retroactive to the date of the stipulation based on fraud committed on the court by appellant; (3) set an appropriate amount of child support in accordance with respondentís earning capacity; and (4) grant attorney fees and costs incurred in the amount of $5,000. Because we conclude that: (1) there was sufficient evidence to vacate the judgment; (2) the district court did not err in denying appellant an evidentiary hearing; and (3) the district courtís decision to vacate the stipulation was not based on its animosity, if any, against appellant, we affirm in part. Because there was insufficient evidence to grant respondentís request for attorney fees, we reverse in part.

D E C I S I O N

I.

Appellant argues that the evidence in the record is insufficient to vacate the partiesí prior stipulation of child support. Courts favor stipulations as a means of simplifying and expediting litigation. Maranda v. Maranda, 449 N.W.2d 158, 164 (Minn. 1989); Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1985). However, a stipulation may be set aside for fraud. In re Marriage of Steffan, 423 N.W.2d 729, 731 (Minn. App. 1988). A trial court's findings concerning allegations of fraud on the court must be upheld unless clearly erroneous. Minn. R. Civ. P. 52.01; Mahoney v. Mahoney, 474 N.W.2d 232, 234 (Minn. App. 1991), review denied (Minn. Nov. 13, 1991). This court will not disturb a district courtís determination of whether to vacate a stipulation absent an abuse of discretion. Miranda, 449 N.W.2d at 164.

The reduction in appellantís child support from $1,500 to $817 per month was due to appellantís October 27, 1998, representation to the court that he had to sell Automart and, therefore, his income had decreased. Respondent filed a motion to vacate the stipulation regarding child support because she believed appellant had lied to the court when he stated that he had to sell his business and could no longer afford to make his current child-support payments.

Because respondent moved to vacate the stipulations based on fraud, we first consider whether there was sufficient evidence in the record to establish fraud by appellant. In order to establish fraud on the court sufficient to reopen a stipulated judgment, the moving party must show

an intentional course of material misrepresentation or non-discourse, having the result of misleading the court and opposing counsel and making the * * * settlement grossly unfair.

Id. at 165. In his October 27, 1998 affidavit, appellant represented to the district court that he had been forced to sell his business and that as a result, he could no longer afford to pay $1,500 per month in child support. But, at the April 30, 1999 hearing, respondent produced evidence suggesting that appellant was still the owner of Automart on October 27, 1998. Respondent introduced a transcript of a recording of a conversation that took place on December 18, 1998, at Automart, where appellant and Todd Barnhill, an employee of Automart, made statements to Carmen D. Piccirillo and Sandra V. Folio, private investigators hired by respondent, regarding who had owned Automart. The transcript indicates that when Folio asked appellant, "Oh, are you the, you own this?" appellant responded, "Well, yeah." Appellant further added, "Yeah, I am the manager." Later, Folio asked Barnhill how long he had been working at Automart. According to the transcript, Barnhill responded, "Iíve been here almost 2 and a half years Ö" and added, "Dougís owned the business her[e] for about eight years." Respondent also introduced a copy of a complaint dated February 16, 1999, which was filed in federal district court on behalf of Automart, Inc., and appellant and his wife against the City of Minneapolis. Appellant claims that he is suing the City of Minneapolis (the city) for damages incurred during the four months in 1998, while he was still the owner of Automart, and the city forced him to close the car lot. It is also significant that during the April 30, 1999 hearing appellant stated, under oath, that Automart was not in business from November 1998 through February 1999. However, the taped conversation at Automart between appellant, Barnhill, and the two private investigators who posed as prospective buyers took place on December 18, 1998, the precise time appellant states he was not in business.

The evidence in the record indicates that appellant was the record-owner of Automart as late as December 18, 1998, even though on October 27, 1998, he represented to the court that he was no longer the owner. The representation led the court and opposing counsel to believe that appellant could not make his $1,500 child- support payments, and consequently, the parties stipulated to a lower monthly payment. This representation by appellant reduced his child-support payments by $683, to almost half of what his payments were originally, which was grossly unfair to respondent and the partiesí children. Respondent showed fraud on the court sufficient to reopen the stipulation. See Sanborn v. Sanborn, 503 N.W.2d 499, 503-04 (Minn. App. 1993) (holding that in marital dissolution action husband committed fraud on the court where he intentionally misrepresented the value of his company and failed to disclose negotiations of the sales, thereby misleading the trial court and opposing counsel and making the property settlement grossly unfair), review denied (Minn. Sept. 21, 1993). Because the district court was not clearly erroneous in its determination that appellant had committed fraud on the court, it did not abuse its discretion in vacating the prior stipulation.

II.

Appellant claims that: (1) because respondent appears to be seeking modification of child support payments under Minn. Stat. ß 518.64 (1998), the district court erroneously failed to conduct a "change-of-circumstances" analysis and issue findings and (2) the district court erred in not granting him an evidentiary hearing.

In order for the court to modify child support, the moving party must show substantially changed circumstances that make the existing support obligation unreasonable or unfair. Minn. Stat. ß 518.64, subd. 2 (1998). "Trial court findings are required when the court addresses modification issues." Hamann v. Hamann, 479 N.W.2d 751, 753 (Minn. App. 1992) (citing Moylan v. Moylan, 384 N.W.2d 859, 864-65 (Minn. 1986)).

Respondentís motion did not state whether she was seeking to modify appellantís child-support obligation under Minn. Stat. ß 518.64, or to vacate the prior stipulation and order under Minn. Stat. ß 518.145 (1998). But respondentís motion states that she was moving the court for an order "vacating the previous stipulation and Order whereby respondentís child-support obligation was reduced from $1,500 per month to $817 per month." Moreover, in her affidavit, which was provided as evidence at the April 30, 1999 hearing, respondent stated that she was " * * * requesting a retroactive application of the sum of $1,500 per month * * * ." Respondent never claimed that there were changes in the circumstances but instead, argued that because of the fraud, the court should reinstate the child support prior to the stipulations. Respondent was not seeking to modify the current child-support payments of $817, but instead sought to vacate the stipulation and order reducing the child-support payments. As such, a "change-of-circumstances" analysis and findings of fact were not required.

Appellantís argument that the district court erred in denying him an evidentiary hearing is also without merit. In a family court proceeding,

[m]otions, except for contempt proceedings, shall be submitted on affidavits, exhibits, documents subpoenaed to the hearing, memoranda, and arguments of counsel unless otherwise ordered by the court for good cause shown.

Minn. R. Gen. Pract. 303.03(d). Here, the district court afforded appellant all the opportunities required to present evidence in support of his case. Consistent with Minn. R. Gen. Pract. 303.03(d), the parties had the opportunity to submit affidavits as well as other written evidence. In fact, appellant filed an affidavit in opposition to respondentís motion. In addition, although appellant had the opportunity to argue his case orally, he opted to appear without counsel. Because there is no indication that appellant requested an evidentiary hearing, appellant waived his right to raise this issue on appeal, and the issue is not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding receiving court must not generally consider issues raised for the first time on appeal).

III.

Next, appellant argues that the order should be reversed because the district court judge had already determined, before hearing appellantís evidence, that he was guilty of fraud. Appellant claims that the district court judge demonstrated his animosity toward appellant and used intimidation and threats in making his decision. Appellant contends that the district court judge did not hold an impartial hearing. In support of this argument appellant relies on the conversation between appellant and the judge at the April 30, 1999 hearing, wherein the judge asked that appellant be sworn in before addressing the court. The judge warned appellant about perjury and his right to be silent, but also made appellant aware that because this was a civil proceeding, his silence could be used against him. While the judge asked appellant several leading questions, such as, "You have committed a fraud, didnít you?" and "Isnít that true? You did, didnít you?," appellant was allowed to explain his answers.

Although injecting himself into the proceedings somewhat more than might be expected, the judge made appellant aware of his rights, given that he was accused of fraud and was without the assistance of counsel. The judge allowed appellant to argue his case, letting appellant know on numerous occasions that he was listening to him. In fact, despite the fact that appellant disrespectfully argued with the judge and accused him of already making his decision, the judge was patient and polite. There is no evidence that the judge acted improperly. Because the evidence in the record was sufficient for the court to vacate the stipulation, we cannot say that the judge relied on his animosity towards appellant, if any, in coming to his decision. The district court did not abuse its discretion vacating the stipulation.

IV.

Appellant argues that the district court erred in granting respondentís request for attorney fees. The award of attorney fees in family court is a decision within a trial courtís discretion. Korf v. Korf, 553 N.W.2d 706, 711 (Minn. App. 1996). This court will not reverse the trial courtís decision to grant attorney fees absent an abuse of that discretion. Id.

Appellant argues that because respondent failed to: (1) provide an affidavit regarding the time, costs or expenses incurred, and (2) introduce evidence about her financial condition, the court erred in granting respondentís request for $5,000 in attorney fees. Appellant correctly argues that no award of attorney fees is proper without at least some evidence by an affidavit of the party or counsel.

Here, there are insufficient findings to provide a basis for the award of attorney fees. Therefore, we reverse and remand to the district court to make proper findings as to what attorney fees, if any, are reasonable in this case.

Affirmed in part, reversed in part, and remanded.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.