This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-1979

 

 

In Re the Marriage of:

Cinda Kraehling Gelvick, petitioner,

Respondent,

 

vs.

 

David Warren Gelvick,

Appellant.

 

 

Filed June 26, 2001

Affirmed; motion granted

Huspeni, Judge*

 

Hennepin County District Court

File No. DC242565

 

 

John C. Gunderson, Meier, Kennedy & Quinn, Chartered, 2200 North Central Life Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

David Gelvick, 3340 Glenhurst Avenue South, St. Louis Park, MN 55416 (pro se appellant)

 

 

 

            Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

Appellant contends that the trial court erred in denying his motion for amended findings because the parties’ stipulated dissolution decree resulted from duress, fraud, and coercion, and from the erroneous exclusion of certain evidence.  Respondent, by notice of review, contends that the trial court erred in failing to impute income to appellant for child support and in not awarding her attorney fees as sanctions.  Because appellant was aware of all facts and circumstances about which he now complains when he entered the stipulation, and because respondent failed to show that the court erred or that appellant acted in bad faith, we affirm.

FACTS

In September 1998, respondent Cinda Gelvick petitioned for dissolution of her marriage to appellant David Gelvick.  During the pendency of the dissolution proceeding, appellant learned that respondent was spending time with David Vanable, who had been convicted of rape.  Appellant was not comfortable with Vanable spending any time with his children and did not think respondent was being candid about the relationship. 

In May 1999, the court, having received and considered a Department of Court Services custody evaluation, which recommended that custody be with respondent, granted temporary sole legal and physical custody to respondent, and ordered that a second custody evaluation be conducted as requested by appellant.  The second custody evaluator also recommended that custody be granted to respondent.  In December 1999, the parties stipulated to division of marital assets and debts between them.  On the day set for trial in March 2000, the parties reached an agreement granting respondent custody of the children, awarding visitation to appellant, and organizing holiday schedules.  This stipulation was read into the record and both parties acknowledged that they understood and agreed with the stipulation.  The trial court included all written and oral stipulations in a decree of dissolution filed in June 2000.  Both parties moved for amended findings of fact and conclusions of law; the court denied both motions.

D E C I S I O N

I.  Stipulated Judgment and Decree

“The sole relief from the [dissolution] judgment and decree lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2.”  Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997).  This statute provides relief for mistake, newly discovered evidence, fraud, or release.  Minn. Stat. § 518.145, subd. 2 (2000).  The trial court’s findings of whether the judgment was prompted by mistake or fraud will not be set aside unless they are clearly erroneous, and the trial court’s decision whether to vacate the judgment must be upheld unless the court abused its discretion.  Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998).

Appellant makes a fraud-based argument for setting aside[1] the custody portion of the stipulation, but we conclude there was no fraud.  Appellant was aware of the facts concerning respondent’s relationship with Vanable and Vanable’s conviction, presented his concerns and version of the facts to the court, and agreed to the stipulation giving custody to respondent.  Thus, respondent’s representations did not mislead appellant and could not have misled the court when it entered the terms of the stipulation into the final judgment and decree.  Moreover, the decree provides that Vanable will never be alone with the children and appellant agreed to this safeguard on the record at the hearing.

Appellant next alleges duress, arguing that he needed more time to find an attorney for the hearing on the motion for temporary relief.  Appellant requested a continuance at that time, however, and the court granted a continuance of approximately six weeks.  There is no indication of duress at the time of the hearing.

Appellant also contends that he agreed to the stipulation under duress.  We disagree.

[A] claim of duress will not be sustained when the claimant entered into the contract with full knowledge of all the facts, advice from an attorney, and ample time for reflection.

 

St. Louis Park Inv. Co. v. R.L. Johnson Inv. Co., 411 N.W.2d 288, 291 (Minn. App. 1987) (citation omitted), review denied (Minn. Oct. 30, 1987).  Appellant had full knowledge of all the facts, agreed to the terms of the stipulation on the record, and the trial court gave appellant ample opportunity to reject the stipulation by verifying that appellant knew he could not change his mind once he left the courtroom.  His unease with the terms of the agreement does not amount to duress.  Glorvigen v. Glorvigen, 438 N.W.2d 692, 700 (Minn. App. 1989) (Crippen, J., concurring specially). 

Appellant also contends that the court’s various evidentiary rulings prejudiced him.  Again, we disagree.  “Evidentiary rulings * * * are within the trial court’s sound discretion and will only be reversed when that discretion has been clearly abused.”  Johnson v. Washington County, 518 N.W.2d. 594, 601 (Minn. 1994) (citation omitted).  The trial court gave sufficient reasons for excluding certain evidence.[2]  More importantly, however, the parties did not litigate the custody issue.  Instead of preserving his evidentiary issues through a custody hearing, appellant stipulated to custody being granted to respondent.  That stipulation supercedes all evidentiary issues regarding custody that may have been present in the case prior to stipulation.

II.  Appellant’s Income

Respondent, through notice of review, argues that the trial court should have invoked collateral estoppel to impute monthly income of $l,741 to appellant based on a net-income finding in a 1997 child-support proceeding related to appellant’s children from an earlier marriage.  We disagree. 

            To invoke collateral estoppel, the following circumstances must exist:

(1) The issue was identical to one in a prior adjudication; (2) There was a final judgment on the merits; (3) The estopped party was a party or in privity with a party to the prior adjudication; and (4) The estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

 

Bublitz v. Commissioner of Revenue, 545 N.W.2d 382, 385 (Minn. 1996) (citation omitted).  The requirements of collateral estoppel are not met in this case.  Respondent’s attempt to utilize an earlier support order, established in connection with an earlier marriage, must fail.  The trial court did not err in refusing to apply collateral estoppel to the issue of appellant’s income.

Respondent also contends that the trial court should have imputed income to appellant, a teacher, because he does not work during the summer and works only 70% time during the school year.  Again, we disagree.  A finding of net income will not be set aside unless it is clearly erroneous.  See Minn. R. Civ. P. 52.01 (stating findings of fact will not be set aside unless clearly erroneous); see also Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987) (stating finding of net income for child-support purposes “will be affirmed if it has a reasonable basis in fact” (citations omitted)).  A court may impute income based on a party’s earning capacity only if it first finds the party is underemployed in bad faith.  Minn. Stat. § 518.551, subd. 5b(d) (2000); Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997).  But a trial court cannot find bad faith where a party continues to do the same job he or she did during marriage and there is no evidence of a deliberate attempt to limit income.  Carrick, 560 N.W.2d at 410.

            Here, the trial court based its net income finding on appellant’s pay stubs and expenses.  Appellant, as a teacher, has summers off.  He was a teacher during the marriage.  Moreover, the record indicates that he is recovering from cancer, which appellant states prevents him from standing for long periods of time and from working full-time during the school year.  Based on these facts, it cannot be said that the court’s finding of net income was clearly erroneous.   

III.  Attorney Fees

 

            The trial court denied respondent’s motion for attorney fees as a sanction against appellant under Minn. Stat. § 549.211 (2000) and Minn. R. Civ. P. 11, for challenging the dissolution decree that he agreed to on the record.  “On review, this court will not reverse a trial court’s award or denial of attorney fees absent an abuse of discretion.”  Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987) (citation omitted); see also Uselman v. Uselman, 464 N.W.2d 130, 145 (Minn. 1990) (applying abuse of discretion to rule 11).

            The trial court found that respondent “has not sufficiently shown that [appellant] acted in bad faith or that [appellant] has the ability to pay [respondent’s] attorney’s fees.”  These findings are not clearly erroneous; there is no evidence in the record to support a finding of bad faith.

IV.  Motion to Strike

Respondent objects to the inclusion of three documents in appellant’s appendix and two references in appellant’s brief as outside of the record.  “An appellate court may not base its decision on matters outside the record on appeal” and may consider only matters “produced and received in evidence below.”  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  This court reviews the trial court’s decision to supplement the record for an abuse of discretion.  Richardson v. Employers Mut. Cas. Co., 424 N.W.2d 317, 319-20 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988).

The challenged documents are addressed in an April 2000 trial court order.  The trial court granted appellant’s request to include the March 14, 2000 letter from his attorney, but denied appellant’s request to include the psychological report of Michael J. Shea dated March 5, 2000, and the request for production of documents.  Because we find no abuse of discretion in the trial court’s order, we grant respondent’s motion to strike all challenged documents and references, except the March 14, 2000 letter, and have not considered any stricken documents or references in this opinion.

            Affirmed; motion granted.

 



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

[1]  Appellant has not alleged changed circumstances as a basis to modify custody under Minn. Stat. § 518.64, subds. 1, 2 (2000).

[2]  The court declined to permit testimony by the parties’ eight-year-old daughter, or to admit into evidence the report of a psychologist who had interviewed the children and appellant, but not respondent.