This opinion will be unpublished and

may not be cited except as provided by

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






In re the Marriage of:


Sheila R. Mitchell, petitioner,





Paul W. Mitchell,



Filed July 9, 2002


Kalitowski, Judge


Scott County District Court

File No. F9918461


Barbara R. Kueppers, 1455 West Lake Street, Suite 308, Minneapolis, MN 55408 (for appellant)


Stephen W. Walburg, 206 Scott Street, Shakopee, MN 55379 (for respondent)


            Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Sheila R. Mitchell contends that (1) the district court abused its discretion by denying appellant’s motion to vacate the property settlement in her dissolution judgment based on newly discovered evidence, excusable neglect, mistake, and inadvertence, or fraud; (2) appellant’s $700 per month maintenance award is insufficient and is inequitable; (3) the district court clearly erred in determining respondent Paul Wilson Mitchell’s income; (4) the district court’s findings regarding the parties’ financial circumstances are inadequate to allow review; and (5) the district court should have awarded her need-based attorney fees.  We affirm.




            The district court’s decision refusing to reopen a judgment “will not be disturbed absent an abuse of discretion.”  Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996) (citations omitted).  An appellate court will affirm a district court’s findings of fact on the question of whether the judgment was prompted by fraud, duress or mistake unless such findings are clearly erroneous.  Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998).  Minn. Stat. § 518.145, subd. 2 (2000), provides that the court may relieve a party from a judgment and decree, order, or proceeding for

(1)    mistake, inadvertence, surprise, or excusable neglect;


(2)    newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under the rules of civil procedure, rule 59.03;


(3)    fraud, whether denominated intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party[.]


Moreover, when a marital dissolution judgment is entered based on a stipulation, the stipulation merges into the judgment and decree.  Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997).  Once a judgment is entered, “[t]he sole relief from the judgment and decree lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2.”  Id.

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.


Id. at 521 (citation omitted). 

            On the third day of trial, the parties reached a property settlement and read the stipulation into the record. As part of the parties’ stipulation, appellant received three defined-contribution retirement accounts, and respondent received two defined-benefit retirement accounts.  Appellant’s attorney described the three defined-contribution accounts as “two 403B’s, one in the amount of $93,000, one in the amount of $17,000, and one 457 plan in the amount of $40,000.”  The two defined-benefit accounts awarded to respondent consisted of a Minnesota Teachers Retirement Association (TRA) account and a Minneapolis Teachers’ Retirement Fund Association (MTRFA) account.  The CPA testified that she calculated the present value of respondent’s defined-benefit accounts “by looking at a letter from the Teachers Retirement Account in March of 2000” and taking the $1,335 per month benefit at six percent interest, resulting in a present value of $217,000.

Following entry of judgment, appellant made a motion requesting the district court to vacate the judgment arguing 25 grounds for vacating or amending the findings, including (1) that respondent’s defined-benefit contribution retirement accounts valued at $1,335 per month (present value $217,000) failed to take into account the MTRFA account which had an additional monthly benefit of $1,905 (present value $310,000); and (2) that the three defined-contribution accounts she received were not worth the amount she expected.    

A.        Newly Discovered Evidence


            First, appellant asserts that the omitted pension valuation of the defined-benefit account and the diminished value of the defined-contribution accounts qualify as newly discovered evidence.  We disagree.

Minn. Stat. § 518.145, subd. 2(2), provides that newly discovered evidence is evidence “which by due diligence could not have been discovered in time to move for a new trial.”  Here, the record shows that appellant had copies of respondent’s financial records.  At the time appellant’s CPA made her calculations, the CPA possessed two letters dated March 1, 2000, and July 6, 1998, which are labeled at the top of the letter “Teacher Retirement Association” and referenced account number TRA #94155 and a letter dated April 7, 1998, which at the top of the letter is labeled from “Minneapolis Teachers’ Retirement Fund Association” that referenced account number MTRFA #17815.  The TRA letters and the MTRFA letter do not appear similar in format or appearance, and they contain different return addresses.  The CPA, however, only used the 2000 TRA letter to make her present value calculation.   Because appellant had copies of letters describing the two plans and the monthly benefit provided under the two plans, appellant with due diligence should have known of the existence of the omitted MTRFA pension.

In addition, the current value of the three defined-contribution accounts could have been obtained by due diligence, including proper discovery.  Appellant points out that her former attorney sought to confirm the three defined-contribution account balances three days before trial, but that respondent’s attorney failed to respond, and that appellant had no access to the value of the accounts.  But the record indicates that the parties shared the same financial planner, and appellant deposed the couple’s financial planner in November 2000.  Thus, appellant has not established that the district court abused its discretion in refusing to reopen the judgment on this ground.   

B.        Mistake, Inadvertence, Surprise, or Excusable Neglect

Appellant asserts that she qualified for relief because of mistake, inadvertence, surprise, or excusable neglect under Minn. Stat. § 518.145, subd. 2(1).  We disagree. 

In concluding that appellant did not meet the statutory requirements to reopen the judgment and decree, the district court found that the “parties had the assistance of counsel and acknowledged that they understood the agreement on the record,” and that “[a]t the time of the stipulation, the parties had been through a full day of trial, and had conducted substantial discovery prior to that date.”  The court had told appellant that once the agreement is approved, it would be “virtually impossible” for her to change it.  The court noted that appellant did have the information because it was provided to her during discovery and recognized that

[d]uring settlement negotiations there is a certain amount of “horse trading” and “back and forth” offers and counter-offers.  The Court will not, and cannot attempt to determine what was going on during negotiations.  It should be noted that during the June trial, the Court was provided with accurate and actual figures as to Respondent’s retirement income from both pensions, and calculated current child support based on those figures.  The court does not find any compelling reason that this stipulation should be vacated, reopened or amended. 


With respect to the defined-contribution account balances, the court recognized that “everyone is aware of the recent fluctuations in the market and substantial diminution of stock and mutual fund values” and that “the parties’ financial advisor was deposed and any and all financial information was available to [appellant].”  Because the findings are based on the evidence in the record, we conclude the district court’s findings are not clearly erroneous.  See McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989) (stating underlying factual findings will be set aside only if clearly erroneous). 

Finally, because the language of Minn. Stat. § 518.145 closely parallels the language of the rule, it is appropriate to look to cases interpreting Minn. R. Civ. P. 60.02.   Shirk, 561 N.W.2d at 522 n.3.  Interpreting the mistake provision in rule 60.02, the supreme court held that unilateral mistake does not justify reopening a judgment under rule 60.02.  Kubiszewski v. St. John, 518 N.W.2d 4, 7 (Minn. 1994).  Appellant’s mistake, if any, is unilateral and does not justify reopening the decree.

Appellant also asserts she is entitled to relief because of a mutual mistake of fact.  But there is no support in the record that respondent operated under such a mistake of fact.  In fact, as appellant points out, respondent did not deny that he knew about the mistake or error in his affidavit accompanying the posttrial motion.  Thus, the district court did not abuse its discretion in refusing to reopen the judgment on this ground.   

C.        Fraud

Appellant contends that respondent misrepresented the value of the MTRFA account and the value of the three defined-contribution accounts.  We disagree. 

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). Ordinary fraud, in a dissolution context, does not require an affirmative misrepresentation or an intentional course of concealment because parties to a marriage dissolution have a duty to disclose all assets and liabilities completely and accurately.  Doering v. Doering, 629 N.W.2d 124 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001). 

Here, the court found that the differing values in the three retirement plans awarded to appellant did not involve bad faith and found no compelling reason why the stipulation should be vacated, reopened, or amended.  Because the record contained the information necessary to value the MTRFA pension, and because appellant had access to the value of the three pensions awarded to her, the record supports this finding.  Moreover, there is no evidence that respondent did not make a full and accurate disclosure of his pension assets.  Appellant’s attorney did not cross-examine respondent regarding the value of his retirement accounts at trial.  But appellant’s attorney questioned respondent regarding his retirement accounts at a deposition, at which respondent described two separate accounts, the TRA and the MTRFA accounts.  Even if appellant made errors in valuing respondent’s pensions, the account information was available to appellant, appellant’s counsel, and appellant’s CPA. 

            Finally, we note that the settlement is not unfair.  The record shows that the parties had limited marital assets.  Although the district court did not make specific findings regarding what assets were marital or nonmarital, the record shows that respondent’s investment accounts and the cabin were acquired with inheritance proceeds.  See Minn. Stat. § 518.54, subd. 5 (2000) (recognizing nonmarital property includes property acquired as a gift, bequest, or inheritance made to one but not the other spouse); Wopata v. Wopata, 498 N.W.2d 478, 484 (Minn. App. 1993) (recognizing that, “[o]n established facts, whether property is marital or nonmarital is a question of law upon which this court will exercise its independent judgment”).  Appellant received the home with approximate value of $200,000, the personal property contents of the home (appellant asserted the parties’ personal property was valued at $350,000), and three retirement accounts worth approximately $115,000.  Respondent received marital assets consisting of two defined-benefit pension accounts that have a present value, according to appellant’s CPA, of $217,000 and $310,000.  Thus, on its face the property settlement is not unfair. 


            Appellant argues that the $700 maintenance award is insufficient to prevent unfair hardship.  By notice of review, respondent argues that the district court improperly increased appellant’s maintenance award from $500 in the judgment and decree to $700 by its amended order.   

            The district court has broad discretion in deciding whether to award maintenance and in determining its duration and amount.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  Spousal maintenance is essentially determined by balancing one spouse’s ability to pay against the other spouse’s needs.  Id. at 39-40.  Maintenance awards are governed by Minn. Stat. § 518.552, subd. 1 (2000), which allows a court to grant maintenance if a spouse (1) lacks sufficient property to provide for “reasonable needs * * * considering the standard of living established during the marriage,” or (2) cannot provide self-support.  Unless a reviewing court finds an abuse of discretion, that is, a conclusion against logic and the facts on the record, the district court’s decision should be upheld.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). 

After the parties stipulated to most property and custody issues, spousal maintenance was the main issue remaining for trial.  After trial, the district court awarded appellant $500 in spousal maintenance.  The district court found that appellant is dependent on respondent for a contribution for maintenance, that appellant “is employable” and maintains two part-time jobs from which she earns net income of $222 per week from one and a varied amount from the other, and that appellant is in need of spousal maintenance.  Upon appellant’s motion, the district court modified the judgment by increasing spousal maintenance to $700 per month.  The court found that there “is no question that [appellant] is entitled to spousal maintenance,” noting that appellant has a high amount of legitimate and actual medical expenses, including COBRA insurance, prescription costs, and co-pays.  But the court cautioned the parties that “there is a limited amount of money to go around” and recognized that the

fact that Respondent has retired and [appellant] must work to meet her bills and living expenses is not a matter of devaluing a long time stay-at-home mom, but is simply a fact of life.

The record shows that the parties were married over 30 years and had four children together, one of which was a minor when the judgment and decree was entered.  Appellant had not worked outside the home for a significant part of the parties’ marriage and respondent was employed for approximately 34 years as a teacher and counselor. 

            We cannot say the district court’s conclusion is against logic and the facts on the record.  We therefore conclude that the district court did not abuse its discretion in awarding $700 in spousal maintenance.  For the same reasons, we reject respondent’s argument that the district court improperly increased appellant’s maintenance award from $500 to $700. 

Appellant also argues that she had a reasonable expectation that she would be retired at the same time respondent retired.  Relying on the proposition that courts may use their inherent equitable power to grant equitable relief, appellant asserts that the court abused its discretion in not granting her sufficient maintenance to retire.  See DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755, 758 (Minn. 1981) (holding that courts have “inherent power to grant equitable relief ‘as the facts in each particular case and the ends of justice may require’” (quotation omitted)).  Appellant has failed to cite any support for the contention that she is entitled to retire at the same time respondent retires.  The decision to grant equitable relief is within the district court’s discretion, and we find no abuse of that discretion here.     



            Appellant argues that the district court clearly erred in (1) determining that respondent’s income before retirement was $60,256; and (2) by failing to include investment income and oil lease royalties in respondent’s gross preretirement and postretirement incomes.  We disagree. 

            The court will affirm a determination of net income for purposes of calculating child support if it has a reasonable basis in fact.  Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987).  First, the district court found that respondent earned an annual preretirement income of $60,256.  A review of the record shows that the parties’ adjusted gross income from their 1998 tax return was $60,256, which includes not only respondent’s wages, but also interest and dividends, taxable refunds, a capital loss, royalty income, and gambling income.  Respondent’s 1999 and 2000 W-2 forms list his preretirement social security and Medicare wages as $70,226, and $72,662, respectively.  While a more precise calculation is preferable, we cannot say that the district court’s gross income finding is outside the range of permissible income, and, thus, it is not clearly erroneous. 

            Second, under Minn. Stat. § 518.54, subd. 6 (2000), income is “any form of periodic payment to an individual,” including wages, workers’ compensation, unemployment benefits, annuity, and retirement benefits.  “The exact parameters of what may or may not be used to satisfy or set a support obligation have not been fully determined.”  Darcy v. Darcy, 455 N.W.2d 518, 521 (Minn. App. 1990).  Appellant’s CPA testified that respondent’s investment accounts would yield an annual return of $26,290 at a six percent interest rate and that respondent received about $1,400 from oil lease income in 1999.  But the parties’ 1998 and 1999 tax returns show taxable interest and dividends totaling $3,742 and $1,516, respectively.  And royalty income totaled $1,402 in 1999, but only $392 in 1998.  The parties’ tax returns show the investment income and royalty income is far from consistent.  We conclude it was within the district court’s discretion to decline to recognize the payments as periodic for income purposes in determining respondent’s preretirement and postretirement incomes.  See McCulloch, 435 N.W.2d at 566-67 (affirming exclusion of bonuses from maintenance obligor’s income because they were not sufficiently dependable). 

            Respondent also argues he is entitled to the deductions for income pursuant to Minn. Stat. § 518.551 (2000), which defines net income as total monthly income less federal and state income tax, social security deductions, reasonable pension deduction, union dues, cost of health insurance coverage, and child support or maintenance orders currently being paid.  The district court allowed respondent deductions only for taxes, Medicare, and social security because the record did not provide information regarding respondent’s withholding or other allowable deductions.  After a review of the record, we cannot say the district court abused its discretion. 


            Appellant argues that the district court erred in failing to make sufficient findings to determine the parties’ incomes, reasonable monthly expenses, assets, and liabilities.  Findings must be sufficient “to enable an appellate court to determine whether the trial court properly considered” the statutory requirements to establish maintenance.  Stich v. Stich, 435 N.W.2d 52, 52 (Minn. 1989).  We conclude the district court’s findings regarding the parties’ income and expenses are sufficient to permit appellate review. 



            Appellant asserts that the district court erred by failing to award her need-based attorney fees.  A refusal to award attorney fees will not be reversed absent a clear abuse of discretion.  Bogen v. Bogen, 261 N.W.2d 606, 611 (Minn. 1977).  The record shows that as part of the parties’ settlement, the parties agreed they would be responsible for their own attorney fees.  Despite the stipulation, in her motion to vacate or amend the judgment, appellant requested the court for an award of need-based attorney fees.  See Shirk, 561 N.W.2d at 521 (recognizing “[c]ourts favor stipulations in dissolution cases as a means of simplifying and expediting litigation” (citation omitted)).  Because the parties stipulated that they would pay their own attorney fees and appellant has provided no basis to reopen that judgment, we conclude the court did not abuse its discretion in denying appellant’s request for fees.  See id. (stating “sole relief from the judgment and decree lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2”).