This opinion will be unpublished and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

C1-01-54

 

In Re the Marriage of:

Doris Jean Doom, petitioner,

Appellant,

 

vs.

 

Roger E. Doom,

Respondent.

 

Filed June 12, 2001
Affirmed
Lindberg, Judge
*

 

Dakota County District Court

File No. F1-99-12857

 

Anne M. Honsa, Honsa & Michales, P.A., The Colonnade Building, 5500 Wayzata Boulevard, Suite 520, Minneapolis, MN 55416 (for appellant)

 

Alvin L. Katz, Susan A. Daudelin, Katz & Manka, Ltd., 4150 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Lindberg, Judge.


U N P U B L I S H E D   O P I N I O N

LINDBERG, Judge

            Appellant challenges the district court’s denial of her motions for a new trial and to vacate a stipulated dissolution agreement, and its denial of attorney fees.  Because we see no abuse of discretion, we affirm.      

FACTS

 

            Appellant Doris Doom and respondent Roger Doom were married for over thirty years.  They enjoyed an extremely affluent lifestyle, funded almost entirely by respondent’s earnings as a stockbroker.

            The discovery phase of their dissolution proceeding was acrimonious.  Appellant alleged that respondent was concealing assets and documentation; respondent alleged that appellant had kept the parties’ records during the marriage and removed them when they separated.  Both parties were represented by experienced family-law attorneys.

            The trial was continued once on appellant’s motion, and when the parties and their attorneys arrived on the scheduled trial date, June 15, 2000, appellant again moved for a continuance on the ground that she needed further documentation.  Respondent’s attorney later presented uncontroverted testimony on what occurred with this motion.

[W]e had a discussion with regard to [appellant’s] motion to continue the trial because of lack of discovery, and as the Court will recall or possibly your law clerk will recall that they withdrew their motion on the basis that they had received the information and it had been explained to their satisfaction.

 

            In addition, there was a witness that they had subpoenaed. * * * [Appellant’s former attorney] and [I] met with the witness, and then [appellant’s former attorney] informed the Court in chambers that the witness could be excused and that he had sufficient information and felt comfortable with the information that he’d received with regard to the Doom account.

 

The parties negotiated until the end of that day and returned to continue negotiations the next day, when the matter was resolved.  The district court observed:

The record should reflect that this matter was on the Court’s calendar beginning yesterday for trial.

 

            Counsel and the parties have been working extremely hard and very diligently over the course of the past two days in an attempt to resolve certain issues.  In fact, they have worked so hard and so diligently that they have resolved all issues.

 

            And at this time the Court has been advised, and [is] pleased to have been advised, that the case is in fact settled.

            Appellant’s attorney then read the agreement into the record.  When he had finished, the district court asked each of the parties three questions: (1) Is this your understanding of the agreement that has been reached?  (2) Under the circumstances, do you feel that it’s fair and reasonable?  And (3) Are you willing to be bound by it when it becomes the court’s order?  Each party answered “Yes” to all three questions.  The district court concluded by telling the parties:

I’d like to say to both [respondent] and [appellant] that I’m very thankful for your efforts that you expended here in the last two days in this court.  Your efforts have been no less than substantial.  And the work that you have accomplished with the good advice of your attorneys is, to say the least, excellent.  And you’re going to be far happier with this disposition by reason of the fact that you have participated in its final conclusion as opposed to leaving all of these items and decisions up to me.

 

            I must say that you have both been very, very well represented by two very competent, excellent attorneys, and their work in this case is, to say the least, has been just absolutely brilliant.

 

            Complicated case; excellent result.  And I thank you very much, and I thank both [counsel] for their efforts in this respect.

 

The court then directed appellant’s attorney to prepare the findings and order for judgment, submit them to respondent’s attorney for his approval, and provide them to the court by July 21.

On July 12, before the attorney had prepared the findings and order, appellant discharged him and retained another attorney.  In August, respondent moved the court for entry of judgment based on the parties’ agreement; appellant opposed the motion and moved for an order allowing her to withdraw from the agreement and for a new trial.  Following a hearing, her motion was denied in an order and judgment was entered based on the agreement.  The district court found that “[appellant] did not make an adequate showing of fraud on the part of [respondent] which induced her to enter into the settlement agreement.”

Appellant then moved for amended findings or a new trial and for attorney fees.  Again her motion was denied; the district court noted in its memorandum that “the Findings of the Court were reached pursuant to the parties’ stipulation and agreement read into the record during open court.”

Appellant challenges the denial of her motion, contending that she is entitled both to a new trial and to attorney fees.

D E C I S I O N

1.            Standard of Review

Appellant brought her motion under Minn. Stat. § 518.145, subd. 2 (2000), which provides for the reopening of dissolution judgments.  Any reopening of the judgment in this case must involve vacating the stipulation.  Decisions on vacating stipulations are reviewed de novo.  See Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997) (“We review the district court’s decision to vacate a stipulation de novo * * *.”).[1]

 2.            Vacating the stipulation

Courts favor stipulations in dissolution cases as a means of simplifying and expediting litigation, and to bring resolution to what frequently has become an acrimonious relationship between the parties.  Stipulations are therefore accorded the sanctity of binding contracts.  They cannot be  repudiated or withdrawn from one party without the consent of the other, except by leave of the court for cause shown.  * * * [U]pon entry of a judgment and decree based on a stipulation, different circumstances arise, as the dissolution is now complete and the need for finality becomes of central importance.

 

* * * *

 

Therefore, when a judgment and decree is entered based upon a stipulation, we hold that the stipulation is merged into the judgment and decree and the stipulation cannot thereafter be the target of attack by a party seeking relief from the judgment and decree.  The sole relief from the judgment and decree lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2.  * * * *  [I]ncompetence of counsel is not among the listed grounds [for reopening under Minn. Stat. § 518.145, subd. 2].

 

Id. at 521-22 (footnote omitted) (quotation and citations omitted). 

            Appellant claims that she is entitled to reopen under Minn. Stat. § 518.145, subd. 2(1), mistake, inadvertence, and surprise, and under Minn. Stat. § 518.145, subd. 2(2), newly discovered evidence that could not have been discovered in time to move for a new trial.  Both, however, amount to allegations of incompetence of appellant’s former attorney.  The “mistake” was

pressure from [appellant’s former] attorney [and] the mistaken belief that all final discovery regarding the missing assets had been received and that her attorney was now acting under full knowledge of the parties’ marital estate. * * * [Appellant was] completely pressured into whatever agreement was reached.

 

Pressuring a client into settlement may be incompetence, and could be actual malpractice, but it is not grounds for reopening a judgment under Minn. Stat. § 518.145, subd. 2.  See Shirk, 561 N.W.2d at 522.

Minn. Stat. § 518.145, subd. 2(2), provides that newly discovered evidence is that “which by due diligence could not have been discovered in time to move for a new trial.” Appellant does not explain why assets that could be revealed through discovery after the stipulation could not have been revealed through discovery before the stipulation.  Again, there is no explanation other than her former attorney’s incompetence, and attorney incompetence is not grounds for reopening judgment.  See Shirk, 561 N.W.2d at 522.[2]

            Appellant also claims she is entitled to reopen the judgment because of Minn. Stat. § 518.145, subd. 2(3), “fraud * * * of an adverse party.”  She relies on Maranda v. Maranda, 449 N.W.2d 158 (Minn. 1989), to argue that respondent committed fraud.  But Maranda is distinguishable.  In that case, the supreme court cited six factors that supported the vacation: none of them applies here.

First, the wife in Maranda throughout her marriage “was systematically excluded from access to information concerning the parties’ finances.”  Id. at 166. Here, respondent said in an uncontroverted affidavit that appellant, not he, took care of the parties’ finances during the marriage and had access to their files after it.  Second, the husband in Maranda “willfully misrepresented and failed to disclose the existence and value of marital property.”  Id.  Appellant contends that assets with an estimated value of $757,665 were not included in the stipulation and agreement, but she reached this conclusion because, after consenting to the stipulation, she retained an accountant to review documents she had in her possession during negotiation; respondent did not conceal the documents.  There is no evidence of his fraud.

Third, in Maranda,  the wife’s attorney knew he was being paid by the husband; this created doubt as to whether he exercised “competent and independent judgment.” Id.  Appellant’s attorney was not being paid by respondent, and appellant does not criticize his judgment.  Fourth, the husband dissipated assets during the proceedings, showing “unmitigated contempt for the judicial process.” Id.  There is no implication that respondent showed any more contempt for the proceedings than appellant.

Fifth, the husband in Maranda induced the wife “to accept the stipulation by promising to be fair for the sake of the [minor] children.” Id.  Here, the parties’ children were adults and not involved, except as co-trustees of the family trust established by the dissolution agreement.  Sixth, the husband in Maranda had concealed hundreds of thousands of dollars so the stipulation was grossly unfair, “making it impossible for the original trial court to approve a fair settlement.”  Id.  In Maranda, the wife was originally awarded$56,000; if the assets the husband concealed had been factored in, her award would have been $289,000.  Id. at 167.  The “grossly unfair” language referred to a marital share that was about 20% of what it should have been.  Here, appellant’s award was over $1.1 million in property; she was also awarded maintenance of $6,500 monthly for ten years and a one-quarter interest (with respondent and the parties’ two adult sons) in a family trust valued at $543,000.  Even if her allegation that $757,665 was omitted from the assets is true, her share of this would be only $378,832, which is a fraction, not a multiple, of her actual award. [3]

Maranda does not support vacating the stipulation and reopening the judgment on the ground that respondent committed fraud.  Nor does appellant show either mistake or newly discovered evidence that was undiscoverable at the time of the stipulation.  She therefore meets none of the Minn. Stat. § 518.145 criteria for reopening a dissolution judgment.  Her motion for a new trial was properly denied.

3.            Attorney Fees

An award of attorney fees under Minn. Stat. § 518.14 is within the district court’s discretion and will not be disturbed unless that discretion has been abused.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  The stipulation to which appellant consented provided that “Each party shall pay their own attorney’s fees.”  In its order denying appellant’s motion for a new trial, the district court said, “Neither [party] is entitled to an award of attorney fees with respect to this matter.” Appellant now argues that denying her attorney fees was an abuse of discretion because respondent unreasonably contributed to the length and expense of the proceedings, one of the statutory grounds for awarding attorney fees in a dissolution action.  See Minn. Stat. § 518.14, subd. 1 (2000).

The record reveals that it was appellant, not respondent, who twice sought to have the matter continued and who twice sought to have it re-opened.  The district court did not abuse its discretion in denying appellant attorney fees.

            Affirmed.

 



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

[1]But see Maranda v. Maranda, 449 N.W.2d 158, 166 (Minn. 1989) (“The record in this case supports a conclusion that the trial court did not abuse its discretion in vacating the 1979 judgment and decree [both based on a stipulation].”) (emphasis added).

[2] Although appellant does not use the phrase “attorney incompetence,” she relies on her former attorney’s conduct as the basis for her motion. She points out that he (1) failed to draft the judgment and decree; (2) did not provide the notes she claims he took during the settlement discussions; and (3) would not provide her current attorney with either additional documents or confirmation that all documents had been provided.

[3] Appellant implicitly concedes that the value of the allegedly omitted assets is not a significant percentage of the estate when she observes in her brief that “even if the additional assets are only worth $757,665.50, this amount alone is enough to justify re-opening and amending the Judgment and Decree.”