This opinion will be unpublished and

may not be cited except as provided by

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






In re:


Rivka Freeman, f/k/a Benavraham,



Ramsey County,





Mordechai Kobany,



Akiva Benavraham,



Filed April 23, 2002

Affirmed as modified; motion denied

Gordon W. Shumaker, Judge


Ramsey County District Court

File No. PF69251097


Brian L. Sobol, 4150 U.S. Bank Place, 601 2nd Avenue South, Minneapolis, MN 55402 (for respondent, Rivka Freeman, f/k/a Rivka Benavraham)


Susan Gaertner, Ramsey County Attorney, Amy A. Anderson, Assistant County Attorney, 50 West Kellogg Blvd., Suite 415, St. Paul, MN 55102 (for respondent Ramsey County)


Mordechai Kobany, 701 39th Avenue N.E., Minneapolis, MN 55421 (appellant pro se)


Akiva Benavraham, 8216 Douglas Drive, Brooklyn Park, MN 55443 (respondent pro se)


Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.*


U N P U B L I S H E D   O P I N I O N



Appellant challenges the district court’s refusal to allow appellant to withdraw from a stipulation entered by the parties and the district court’s determination of paternity based thereon.  Appellant also seeks to vacate the district court’s judgment claiming that the judgment contains terms beyond the scope of the oral stipulation.  Affirmed as modified.



Respondent Rivka Freeman Benavraham (Freeman) gave birth to Y.F.K.  Although Freeman understood appellant Mordecai Kobany (Kobany) was the biological father, Kobany refused to be named the father on the birth certificate.  Freeman brought an action against Kobany in 1992 to determine paternity.  At that time, Kobany submitted to a blood test, which established with 99.8% certainty, that he is Y.F.K.’s father.  Freeman later dismissed the action.

Freeman then married respondent Akiva Benavraham (Benavraham), and moved to New York.  In 1993, Benavraham signed a “Legitimation Affidavit for Child Born Out of Wedlock” form and consented to be named Y.F.K.’s father on Y.F.K.’s birth certificate.  After Freeman and Benavraham divorced, she and Ramsey County renewed the effort to determine whether or not Kobany was the child’s father.

A trial commenced but was not completed because the parties purportedly reached a settlement agreement, which the parties read into the court record.  Kobany stated on the record that day that he understood the terms of the agreement and that he agreed to abide by them.  At a later hearing, Freeman moved the court to adopt the stipulation in the form of her proposed judgment.  Kobany appeared pro se and asked the court not to adopt the written agreement claiming he never agreed to either the oral or written stipulation.  The district court declined to relieve Kobany from the agreement and entered the judgment.  Kobany appeals.


On appeal, Kobany challenges the district court’s refusal to allow him to withdraw from the oral stipulation made with Freeman, alleges that the record does not support the district court’s findings and that the district court erred by adopting the written stipulation which included provisions beyond those agreed to. 

1.         Motion to withdraw

Kobany argues specifically that the district court incorrectly denied his motion to withdraw from the stipulation before it entered judgment.  Whether to vacate a stipulation between the parties is a decision the appellate court will not overturn absent an abuse of discretion.  Toughill v. Toughill, 609 N.W.2d 634, 639 (Minn. App. 2000).  Courts favor stipulations as a means of simplifying and expediting litigation in family law cases and therefore, “stipulations are * * * accorded the sanctity of binding contracts.”  Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997) (discussing stipulations in dissolution proceedings) (citation omitted).  One party cannot repudiate a stipulation unless the other party consents or the court gives permission for good cause shown.  Id. at 521-22.

When a district court is considering whether to allow a party to withdraw from a stipulation, which has not yet been incorporated into a judgment, the district court should consider whether the stipulation was “improvidently made and in equity and good conscience ought not to stand.”  Toughill, 609 N.W.2d at 639 (quoting Shirk, 561 N.W.2d at 522).  Stipulations based on fraud or duress and which prejudice or defraud the coerced party are improvidently made and should be vacated.  Id.  In this situation, the district court may also consider the first two Tomscak factors:  (1) whether the party was represented by competent counsel and (2) whether there were extensive and detailed negotiations.  Id. at 639-40 (citing Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. 1984)).

Kobany contends that the district court should have allowed him to withdraw from the stipulation because he was confused as to the legal consequences and obligations that would be imposed by the stipulation and because he was coerced by his attorney to make the agreement without adequate time to negotiate.  The district court found that not only had Kobany expressly stated that he understood and agreed to the terms, but that he was represented by competent counsel and Kobany was aware of the terms of the settlement and understood the long-term ramifications of the agreement.

The record reflects that Kobany never disagreed with the terms or claimed he was being forced to enter the agreement.  Rather, Kobany stated affirmatively four times on the record that he understood and agreed to abide by the terms of the agreement as they were read into the record.  Nothing in the record suggests that Kobany did not understand the terms or ramifications of the agreement.  On the contrary, when Kobany had questions regarding the terms of the agreement, he asked them, and the court allowed time off the record to negotiate the finer points of the agreement.  Furthermore, nothing in the record indicates that Kobany was not represented by competent counsel.  Therefore, the district court’s decision denying Kobany permission to withdraw was not an abuse of discretion.

2.         District court’s judgment

Kobany challenged the district court’s judgment adopting the written stipulation, claiming that the court’s determination of paternity is unsupported by the record and that the terms of the judgment extend beyond the scope of the oral stipulation.  The interpretation of a stipulated judgment presents a question of law.  Jensen v. Jensen, 440 N.W.2d 152, 154 (Minn. App. 1989).

a.         Paternity

Although Kobany admits he is the biological father, and therefore a presumed father under Minn. Stat. § 257.55, subd. 1(f) (2000), he challenges the district court’s legal determination of his paternity because Benavraham was also a presumed father under Minn. Stat. § 275.55, subds. 1(c)(1), (d) (2000).  “The Parentage Act allows for the possibility of conflicting presumptions of paternity.”  State v. Thomas, 584 N.W.2d 421, 423 (Minn. App. 1998) (citation omitted), review denied (Minn. Nov. 17, 1998).  When competing presumptions of paternity exist, as they do in this case, the district court must determine which presumption should control by evaluating on the facts which presumption is founded on the weightier considerations of logic and policy.  Minn. Stat. § 257.55, subd. 2 (2000).

When evaluating competing presumptions of paternity, the child’s best interested must be considered when resolving the conflict.  Thomas, 584 N.W.2d at 424.  Blood tests establishing one man as the child’s biological father will not automatically determine the issue.  Matter of Welfare of C.M.G., 516 N.W.2d 555, 559 (Minn. App. 1994).  However, when resolving conflicting presumptions of paternity, Minnesota courts consider not impairing blood relationships and the legislature has acknowledged the significance of blood relationships.  Thomas, 584 N.W.2d at 424. 

In this case, although Benavraham once held Y.F.K. out as his son, Benavraham had since divorced Y.F.K.’s mother and voluntarily relinquished his right to be Y.F.K.’s father when he was informed that blood tests revealed Kobany to be the biological father.  Kobany admits to being Y.F.K.’s father and agreed to provide support and spend time with Y.F.K.  Therefore, because the record supports the district court’s legal determination that Kobany is Y.F.K.’s father, we find that the district court did not err.

b.         Terms beyond the scope of oral stipulation

Kobany argues that the district court judgment should be vacated because the judgment was inconsistent with the oral stipulation and that the parties could not have had a meeting of the minds on those inconsistent provisions.  See Ryan v. Ryan, 292 Minn. 52, 55, 193 N.W.2d 295, 297 (1971) (noting that settlement of a lawsuit requires “a meeting of the minds on the essential terms of the agreement”).  Although the district court has the discretion to accept all or part of a proposed stipulation, it generally cannot impose conditions on the parties to which they did not first stipulate.  Toughill, 609 N.W.2d at 639 n.1 (discussing stipulations in dissolution cases). 

Kobany disputes a number of provisions regarding custody and visitation, payment schedules and required religious observation.  Inconsistent provisions exist regarding only the required religious observation.  Kobany argues he did not orally agree to observe the Jewish Sabbath according to Orthodox tradition or to abide by other Orthodox laws while the child is in his care.  The final order states:

For the benefit of the minor child, while the minor child is with him, defendant will make sure that his home is kosher, specifically including his oven, and that the kosher laws are strictly observed.  Defendant shall also observe the Jewish Sabbath according to the Orthodox tradition, and such other Orthodox laws as applicable while the minor child is in his care.


The record reflects that the oral stipulation did not include the requirement to observe Orthodox traditions or laws; rather, the agreement was more limited:

There is an agreement that Mr. Kobany, for the benefit of the minor child when the minor child is with him, will make sure that his home is kosher and that the kosher laws are observed when [Y.F.K.] is in Minneapolis.


Because the record clearly shows that Kobany agreed only to provide a kosher home while Y.F.K. was visiting, the district court erred by adopting the portion of the written stipulation requiring observance of the Sabbath according to Orthodox tradition as well as other Orthodox laws because those terms are beyond the scope of the oral stipulation.  Therefore, we modify the judgment by deleting the requirement that Kobany observe the Jewish Sabbath according to Orthodox tradition, and such other Orthodox laws as applicable while the child is in his care, and we affirm in all other respects.

Additionally, we have considered appellant’s motion to strike portions of respondent’s brief and appellant’s argument that Freeman’s case was barred by the statute of limitations or laches.  On this record and on applicable law, we find no merit in these arguments.  Appellant’s motion to strike is denied.

Affirmed as modified; motion denied.

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