This opinion will be unpublished and

may not be cited except as provided by

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






Donovan D. Donarski, petitioner,


Kellie A. Donarski,


Filed December 18, 2001

Reversed and remanded

Forsberg, Judge*


Marshall County District Court

File No. F396238


Kevin T. Duffy, P.O. Box 715, Thief River Falls, MN  56701 (for respondent)


Thomas V. Omdahl, 424 Demers Avenue, Grand Forks, ND  58201 (for appellant)


            Considered and decided by Schumacher, Presiding Judge, Harten, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


The judgment dissolving the parties’ marriage awarded appellant-wife half of the equity in the marital homestead and ordered the home sold.  The home was not sold, and wife sought a judgment for the amount of the equity.  The district court denied the motion stating that res judicata prevented the court from addressing the question.  We reverse the order denying wife’s motion and remand to the district court to determine whether wife is entitled to a modification of the judgment.


On February 27, 1997, respondent-husband Donovan D. Donarski and appellant-wife Kellie A. Donarski were granted a dissolution of marriage in accordance with a judgment that provided in part:

9.      [Husband] shall pay to [wife] as and for temporary maintenance the sum of $400.00 per month, however, it is provided that [wife’s] child support obligation, which has been suspended by the Court shall be deducted from this amount leaving a net payment to [wife] of $285.00.  The temporary maintenance ordered herein shall terminate three years from the date of this order, upon [wife] gaining full-time employment, upon the sale of the real estate of the parties and [wife] receiving for her net share the sum of $15,000.00 or more, upon the remarriage of [wife], upon the death of [husband] or [wife], or until further order of this Court whichever event shall occur first. * * *


10.  The real estate owned by the parties * * * shall be listed with a Realtor agreed to by the parties at the appraised value and sold subject to the life estate of [husband’s mother].  The net proceeds of said sale shall be divided equally between the parties.


(Emphasis added.)  The judgment established the fair market value of the property as $86,500, with a balance owing on a contract for deed of $21,325.  The real estate was never sold, but instead, the parties’ contract for deed was cancelled, and ownership of the property reverted back to husband’s mother.

In July 2000, husband brought a motion seeking enforcement of child support and cancellation of maintenance.  Husband alleged that his maintenance obligation should be terminated because he had paid wife $285 per month for a period of 36 months and that the contract for deed was cancelled so that there could be no sale of the real estate.  Wife did not bring a countermotion.  On July 28, 2000, the district court issued an order requiring wife to pay child support arrearages and certain debts, and terminating husband’s maintenance obligation if he could provide documentation that he had in fact paid wife $285 per month for 36 months.  In addition, the court commented, “If [wife] has been paid $285 per month for 36 months, she has no claim to the $15,000.”

            On February 16, 2001, wife brought a motion for husband to pay her $32,587.50, which she claimed was her share of the equity in the property.  The district court denied her motion on the basis that it was barred by the doctrine of res judicata.  After a motion for reconsideration, the district court issued an order affirming its prior order regarding the issue of res judicata.  Wife appeals from the order affirming the prior decision.



The availability of res judicata is subject to de novo review.  Erickson v. Comm’r of Dep’t of Human Servs., 494 N.W.2d 58, 61 (Minn. App. 1992).  If res judicata is available, the decision whether to actually apply it lies within the district court’s discretion.  Id.  Res judicata and collateral estoppel prevent parties from initiating a new lawsuit to litigate the same claim or relitigating issues determined in a prior lawsuit.  Loo v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994).  While the doctrines of res judicata and collateral estoppel do not apply to dissolution proceedings in a “technical sense,” the general rule prohibiting relitigation of an issue that has already been litigated does apply.  Id. at 743-44.  Therefore, the issue in this appeal is whether the two motions presented the same legal issue.  See id. at 744 (if wife’s 1993 motion required adjudication of an issue that was litigated and decided in her 1990 motion, the 1990 order was to be given preclusive effect).

In the July 2000 action, husband sought enforcement of the child support, maintenance, and debt provisions of the dissolution judgment.  Wife, however, did not ask the district court for enforcement of the real-property division at that time.  The statement in the order that, “If [wife] has been paid $285 per month for 36 months, she has no claim to the $15,000,” was not a finding regarding the real-property division, but instead clarified that husband’s maintenance obligation had expired.  The mention of the $15,000 claim was merely a peripheral comment.  The court did not decide the issue of the real-property division at that time, and therefore, wife was not barred from seeking resolution of the real-property division in a later motion. 

Wife does not state in her motion on what basis she should be granted $32,587.  The judgment only provides that she be granted an equal division of the net proceeds from the sale of the property.  Because the property was not sold, and there is no equity to be divided, we infer that wife may be seeking a modification of the judgment on the basis of fraud upon the court.  See Minn. Stat. § 518.145, subd. 2 (2000) (allowing relief from a judgment for fraud upon the court); Lindsey v. Lindsey, 388 N.W.2d 713, 716 (Minn. 1986) (allowing reopening of a marital judgment after wife demonstrated fraud upon the court).  If so, wife will need to prove that husband intentionally failed to keep up the payments on the contract for deed, thus depriving wife of her equity; also, wife must prove the value of her equity in the property.  We remand to the district court for proceedings to determine whether there is a basis for such modification.  The district court has discretion to reopen the record and take additional evidence. 

Reversed and remanded.


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