This opinion will be unpublished and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

C8-00-2101

 

Debra Ann Kunkel, petitioner,

Respondent,

 

vs.

 

Joseph Gerard Kunkel,

Appellant.

 

Filed August 7, 2001

Affirmed

Willis, Judge

 

Ramsey County District Court

File No. F3982176

 

Jerome M. Rudawski, 2845 Hamline Avenue North, Suite 218, Roseville, MN  55113 (for respondent)

 

Barbara N. Nevin, Milavetz, Gallop & Milavetz, P.A., 6500 France Avenue South, Edina, MN  55435 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge, Willis, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant father argues that the district court abused its discretion by reopening a dissolution judgment and modifying his child-support obligation, contending that the court’s finding that he materially misrepresented his income was clearly erroneous.  He also argues that the court abused its discretion by modifying visitation without holding an evidentiary hearing and awarding respondent mother conduct-based attorney fees.  Because the district did not abuse its discretion, we affirm.

FACTS

 

Appellant Joseph Gerard Kunkel and respondent Debra Ann Kunkel married in 1982.  Appellant is self-employed as an electrician and attorney.  He also owns rental property, from which he receives some income.  The parties are the parents of three minor children.

The parties legally separated in March 1997.  At a settlement conference in July 1998, they negotiated a marital-termination agreement, which provided that

[the] terms of this Marital Termination Agreement are based upon the representations of the parties to each other and their respective attorneys that they have made a thorough and complete disclosure of their assets, liabilities and overall financial conditions and each acknowledges that this Marital Termination Agreement is being executed in reliance on the validity of said information.

 

In a pre-hearing statement prepared for the settlement conference, appellant represented that his net pre-tax rental income from a duplex in Saint Paul was $165 per month.  The marital-termination agreement included appellant’s income as an electrician, but it did not include his income from the Saint Paul duplex.  In August 1998, the Nobles County District Court dissolved the parties’ marriage by a stipulated judgment, which incorporated the terms of their marital-termination agreement.[1]  In the property division, appellant was awarded the Saint Paul duplex.

Respondent later moved to reopen the judgment, arguing that appellant had either misrepresented or failed to disclose the rent he receives from the duplex.  She also moved to modify visitation.  Based on appellant’s deposition and evidentiary-hearing testimony, the court found that he derives a gross rental income of $1,860 per month from the duplex.  Appellant testified that his mortgage payments on the property were $475 per month; the court, deducting an additional “$200 per month to cover taxes and insurance,” found that his net income from the property was $1,185 per month.  Based on these findings, the court concluded that appellant’s assertion in the pre-hearing statement that his rental income from the duplex was $165 per month was “false and misleading.”  It also concluded that, at the settlement conference, appellant “failed to disclose the true net income realized from the duplex rental property.”  Finding that appellant’s income was at least $500 per month more than the amount stated in the judgment, the court adjusted his child-support obligation accordingly. 

The court reserved the issue of visitation pending an “updated interview” of the children and parties by the guardian ad litem.  In October 2000, the guardian ad litem issued his recommendations based on interviews with respondent, two of the children, and the children’s therapist.  Although the third child attended one of the interviews, she did not take part.  According to the guardian ad litem, appellant “did not provide any additional information despite two requests asking him to contact me.”  The visitation schedule established in the dissolution judgment was as follows:

[Appellant] shall have visitation with the minor children every other weekend from Thursday 5:30 p.m. until Monday morning, two evenings each week from after school or 3:00 p.m., whichever is earlier, until 8:00 p.m. * * * .

 

In recommending that visitation be modified, the guardian ad litem noted that the “frequent exchanges between parental residences” were presenting difficulties for the two younger children, including affecting the ability of one of them to complete her homework.  The court modified the visitation schedule as recommended by the guardian ad litem so that appellant had visitation with the two younger children “[e]very other weekend from Thursday after school until Monday morning when school begins; every Tuesday after school until Wednesday morning when school begins.”  The court left it to the oldest child, who at the time was 16, to “work out” his own visitation schedule with his father. 

This appeal follows.

D E C I S I O N

 

I.

When a judgment and decree is entered based on a stipulation,

 

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. 

 

Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997).  The legislature has recognized the importance of finality in dissolution proceedings by describing circumstances that must exist for a party to be relieved of the terms of a judgment and decree.  Id.  The sole basis for relief from a judgment and decree is meeting the requirements of Minn. Stat. § 518.145, subd. 2.  Id.  That section provides that “the court may relieve a party from a judgment and decree” for several reasons, including “fraud, whether denominated intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party.”  Minn. Stat. § 518.145, subd. 2(3) (2000). 

The district court has discretion to decide whether to reopen a dissolution judgment, and an appellate court will not reverse that decision absent an abuse of discretion.  Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996).  The district court’s factual findings “on the questions of whether or not the judgment was prompted by fraud, duress, or mistake” will be upheld unless they are clearly erroneous.  Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998).

Appellant challenges the district court’s decision to reopen the judgment and decree, arguing that he did not fraudulently fail to disclose his true rental income from the duplex during the July 1998 settlement conference.  Parties to a marital dissolution have a duty to make full and accurate disclosure of all assets and liabilities.  Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 765-66 (Minn. 1983).  A breach of this duty constitutes fraud sufficient to set aside a judgment.  Id. at 766; see also Sanborn v. Sanborn, 503 N.W.2d 499, 503-04 (Minn. App. 1993) (affirming vacation of judgment because husband, who represented business as having one-third of its actual value, committed fraud), review denied (Minn. Sept. 21, 1993); cf. Kornberg, 542 N.W.2d at 388 (affirming finding of no fraud where both parties were represented by counsel, there was no intentional misrepresentation or concealment of funds, appellant was not excluded from access to information concerning assets, and resulting property division was not unfair).

At his December 1999 deposition, appellant testified that he received $1,860 per month in rent from the duplex and that the rent had been that amount for at least three years.  He also testified that his monthly mortgage payments on the property were $475.  The court deducted an estimated “$200 per month to cover taxes and insurance.”  This estimate is consistent with appellant’s deposition testimony that his total monthly payments for mortgage, tax, and insurance on the duplex had been approximately $680 to $720 for several years.  Appellant also testified that both units in the duplex have been occupied for several years, that the tenants pay all utilities, and that he pays $55 per month for trash removal.  The court’s finding that appellant’s net monthly income on the property is $1,185, and was that same amount at the time of the July 1998 settlement conference, is not clearly erroneous.

In his pre-hearing statement prepared for the July 1998 settlement conference, appellant represented that his income from the duplex was $165 per month before taxes.  In light of appellant’s later deposition testimony, the district court’s findings that (1) this representation was “false and misleading” and (2) appellant fraudulently failed to disclose his true net rental income at the settlement conference are not clearly erroneous. Appellant notes that, like the parties in Kornberg, where the supreme court concluded that there was no fraud, both parties here were represented by counsel at the settlement conference.  In Kornberg, the supreme court concluded that a wife was not fraudulently induced to waive maintenance because she was not excluded from access to her husband’s financial information, made no allegation of concealment of funds, and made no allegation of her husband’s “misrepresentation of a specific material fact.”  Id.  But here, unlike in Kornberg, respondent alleged that appellant misrepresented a specific material fact; namely, his rental income from the St. Paul duplex.  Because the district court’s finding of fraud was not clearly erroneous, the district court did not abuse its discretion in reopening the judgment.

The district court estimated that appellant received, at a minimum, $500 per month more in income than he had disclosed at the settlement conference.  A district court’s determination of a child-support obligor’s income for child-support purposes is a finding of fact that will not be set aside if it has a reasonable basis in fact and is not clearly erroneous.  State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).  The district court’s estimation of appellant’s income, which was based on his deposition and evidentiary-hearing testimony, was not clearly erroneous.

II.

Appellant argues that the district court erred by adopting the guardian ad litem’s recommendations regarding modification of visitation without holding an additional evidentiary hearing.  While Minn. Stat. § 518.175, subd. 5 (2000), requires an evidentiary hearing before “restricting” visitation rights, it does not specifically require a hearing before modifying visitation.  See Lutzi v. Lutzi, 485 N.W.2d 311, 316-17 (Minn. App. 1992) (noting that ordinary adjustments in visitation may be made without an evidentiary hearing).  A restriction of visitation is “[a] substantial alteration of visitation rights,” Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993), and occurs when the reduction in visitation impairs the parent-child relationship. Clark v. Clark, 346 N.W.2d 383, 385-86 (Minn. App. 1984), review denied (Minn. Oct. 30, 1984).  A reduction of visitation does not necessarily rise to the level of a restriction.  Compare Danielson v. Danielson, 393 N.W.2d 405, 407 (Minn. App. 1986) (holding that reduction in visitation following removal to another state from every other weekend plus alternating holidays to four weeks every summer was not a restriction), with Clark, 346 N.W.2d at 385-86 (holding that reduction of visitation from 14 to 5½ weeks per year was a “restriction”).

Here, prior to modification, appellant spent with the minor children “every other weekend from Thursday 5:30 p.m. until Monday morning,” plus  “two evenings each week from after school or 3:00 p.m., whichever is earlier, until 8:00 p.m.”  After modification, appellant had visitation with the two younger children every other weekend from Thursday after school until Monday morning when school begins, and every Tuesday after school until Wednesday morning when school begins.  Appellant does not argue, nor do we conclude, that this is a substantial reduction that will impair the parent-child relationship.

III.

Generally, attorney fees in dissolution cases are governed by Minn. Stat. § 518.14, subd. 1 (2000), which allows both need-based and conduct-based fee awards.  A district court may, in its discretion, award fees, costs, and disbursements against a party who “unreasonably contributes to the length or expense of the proceeding.” Id.  Conduct-based fees may be awarded under Minn. Stat. § 518.14, subd. 1, regardless of the recipient’s need for fees and regardless of the payor’s ability to contribute to a fee award.  Gales v. Gales, 553 N.W.2d 416, 423 (Minn. 1996).  An award of attorney fees under section 518.14 “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987).

Appellant contends that the court abused its discretion in awarding conduct-based fees based on its erroneous finding that he “failed to disclose and/or materially misrepresented to [respondent] and the Court the nature and extent of his annual income.” As we have already concluded, this finding was not erroneous.  Further, there is ample evidence in the record to support the court’s finding that appellant’s other “actions and behavior” also “significantly increased the expense of this litigation.”  For example, on two occasions appellant failed to appear for his deposition for reasons that the district court determined to be “totally lacking in merit.”  The district court did not abuse its discretion in making a conduct-based fee award.

            Affirmed.

           



[1] At the time that their marriage was dissolved, appellant lived in Ramsey County and respondent lived in Nobles County.  In accord with a term of the judgment and decree, respondent relocated to Ramsey County.