This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-02-69

 

 

In re: Cynthia S. Farmer, petitioner,

Respondent,

 

vs.

 

Richard F. Zaligson,

Appellant.

 

 

Filed September 24, 2002

Affirmed as modified

Parker, Judge*

 

 

Hennepin County District Court

File No. DC123716

 

 

Paula Smoot Ogg, 7575 Golden Valley Road, Suite 370, Golden Valley, MN 55427 (for respondent)

 

Michael L. Perlman, Perlman Law Office, 333 Parkdale Plaza, 1660 South Highway 100, St. Louis Park, MN 55416 (for appellant)

 

††††††††††† Considered and decided by Willis, Presiding Judge, Minge, Judge, and Parker, Judge.

U N P U B L I S H E D† O P I N I O N

PARKER, Judge

On appeal from the district courtís order granting respondentís motion to reopen the partiesí child support matter due to appellantís fraud upon the court, appellant argues that a finding of fraud was not supported by the record and that attorney fees were improperly awarded.† We affirm as modified.

D E C I S I O N


I.

We will affirm a district courtís decision to reopen an order unless there was an abuse of discretion.† Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998).† Minn. Stat. ß 518.145, subd. 2(3) (2000), provides that the district court may relieve a party from a judgment and decree, order, or proceeding due to ďfraud, whether denominated intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party.Ē† Although, generally, motions for such relief must be made within one year, the district courtís power to set aside an order for fraud upon the court is not limited.† Id.; see also Minn. R. Civ. P. 60.02 (allowing the district court to relieve a party from an order due to fraud).† We will affirm the district courtís findings of fact with respect to whether the order was prompted by fraud unless such findings are clearly erroneous.† See Hestekin, 587 N.W.2d at 310.

Appellant-father sought abatement of his child support obligation for the period in which he was incarcerated for his 1998 criminal conviction for filing false tax returns.† Respondent-mother sought increased retroactive child support for the now-emancipated child on the basis that father committed fraud upon the court, as evidenced by his conviction.† The district court vacated the 1994 order, reopened the child support matter arising from motherís 1991 modification motion, and modified fatherís child support obligation retroactive to the date of the fraud.† Father argues that his tax fraud conviction cannot be used as prima facie evidence of fraud upon the district court because tax fraud is unrelated to his child support obligation; because there was no evidence of fraud when the dissolution decree was entered and, because his obligation has not changed since that time, that is where the inquiry must be focused.† He further argues that, even if he did misrepresent his income, it did not have a material effect on the child support matter.† Mother argues that the conviction can be used as prima facie evidence, that there is additional evidence of fraud, and that fatherís misrepresentations and omissions caused the district court to deny her 1991 modification motion in 1994.

Parties to a marital dissolution have a duty to fully and accurately disclose all assets and liabilities.† Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 765-66 (Minn. 1983).† Because of this duty, fraud upon the court consists of ďan intentional course of material misrepresentation or non-disclosure, having the result of misleading the court and opposing counselĒ and making the award grossly unfair.† Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989).

The district court found fatherís tax fraud conviction relevant to his child support obligation because father misrepresented his income and offered false tax returns from 1992, 1993, and 1994 as evidence of his income when he brought earlier modification motions before the district court.† When he pleaded guilty to tax fraud, father admitted that he intentionally and knowingly filed false tax returns for those years.[1]† Fatherís conviction helps support a finding of intentional misrepresentation or nondisclosure.† The district court also found additional evidence that supported the determination of fraud.†

Father also argues that he did not commit fraud at the time of the original dissolution decree and that we should focus our attention on that time.† However, that argument misses the point because the district court specifically stated that fatherís fraud led it to deny motherís 1991 modification motions and that its December 2001 order vacated the 1994 order, not the original dissolution decree.† The district court found that fatherís misrepresentations materially affected the 1994 order because the court had relied on those misrepresentations.† The district courtís determination of fraud was not clearly erroneous, and the district court did not abuse discretion by reopening the matter.

Father further argues that the district court adopted motherís proposed findings nearly verbatim.† Mere recitations of a partyís claims are not true findings.† Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989).† Father fails to acknowledge that district courts commonly call upon attorneys to provide proposed findings and will indicate to the drafting attorney what should be included, which mother assures occurred here.† Although the district court largely adopted motherís proposed findings, a side-by-side analysis shows that the court carefully considered the proposed findings and edited, modified, and amended them where appropriate.† Father has not shown that any of the district courtís findings with respect to his child support obligation was erroneous.† The district court did not err because the findings were supported by the evidence.

II.

Minn. Stat. ß 518.14, subd. 1 (2000), authorizes the district court to award attorney fees ďagainst a party who unreasonably contributes to the length or expense of [a] proceeding.Ē† An award of conduct-based attorney fees under Minn. Stat. ß 518.14,
subd. 1, ďrests almost entirely within the discretion of the [district] court and will not be disturbed absent a clear abuse of discretion.Ē† Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).†

Father argues that the alleged conduct that contributed to the length and expense of the proceeding and served as the basis for the April and December 2001 awards is not supported by the record; that the June 2001 penalty is unprecedented; that the district court reconsidered things already determined in the 1994 and 1999 orders; and that motherís new attorney improperly received the fees because the alleged misconduct occurred from 1991-1994, when mother had a different attorney.† Mother argues there is sufficient evidence to support the award, especially considering fatherís fraud, frustration of discovery, and challenges of the child support award and cost-of-living adjustments, in light of his unreported income.


The district court found that father presented fraudulent evidence to the court when he argued that he could not afford cost-of-living adjustments, occasionally failed to disclose additional information, knowingly and intentionally submitted false tax returns, intentionally made misrepresentations that delayed the current litigation, evaded discovery, did not pay the attorney fees that the court had awarded earlier, habitually was dishonest, and provided incomplete discovery.† Additionally, the district court found that fatherís behavior directly increased the length of litigation, that father had the ability to pay attorney fees, and that mother had limited means.

The record supports a finding that father delayed the proceedings even after the district court ordered him to comply with discovery and make required attorney fees payments.† The record also supports the district courtís need to consider earlier district court determinations because the court reopened the matter back to 1991.† Similarly, the record supports the district courtís finding that, although mother reserved her motion to modify child support in December 1991, she did so as a result of fatherís misrepresentations and that motion was ultimately denied in 1994 with all other outstanding motions.† Additionally, although the bulk of the fraud occurred between 1991 and 1994, the current litigation spanned the period between 1998 and 2001, and the attorney fees were attributed to work that motherís attorney did for the current litigation that challenged fatherís behavior during the earlier period.† We conclude that the proper attorney was compensated.† Finally, it is not unprecedented to impose a penalty for failure to provide child support payments.† See, e.g., Torke v. Thurman, No. C9-94-329, 1994 WL 455676, at *2 (Minn. App. Aug. 23, 1994) (discussing district courtís inherent judicial power to impose private penalty so long as to do so is not an abuse of discretion and affirming per diem penalty), review denied (Minn. Oct. 24, 1994).[2]† The district court did not abuse discretion by awarding attorney fees.† However, it was an abuse of discretion to make one particular award of attorney fees.

Mother stated that her attorney fees between 1998 and October 2000 were $20,000, and $71,615 between October 2000 and December 2001.† The district court awarded $10,000 in December 2000, $650 in April 2001 so that mother could enforce the December 2000 award of $10,000 that father did not pay, and $46,000 in December 2001.† The July 2001 order did not establish an attorney fees award, but only penalties for fatherís failure to pay the attorney fees already awarded.† The above December 2000 and 2001 awards were appropriate.† However, the district court clearly erred by awarding, in December 2001, an additional $7,290, which the district court said was to offset motherís child support obligation for the 18 months that the child lived with father before emancipation, and the district courtís judgment does not show a corresponding deduction from the overall attorney fees award.† Because the district court abused discretion by making this award, we deduct this $7,290 from the total amount of attorney fees that father is required to pay mother.

Mother mentions, in the conclusion of her brief, that she should get attorney fees on appeal.† Because mother did not move for attorney fees on appeal pursuant to Minn. R. Civ. App. P. 139.06, we decline to address this issue.† Although we may grant attorney fees on our own motion pursuant to Minn. R. Civ. App. P. 139.06, mother did not provide any documentation or supporting arugment to determine the amount of fees accrued.† Thus, we decline to order attorney fees on our own motion.

††††††††††† Affirmed as modified.

 



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

 

[1] Although father does not specifically argue that collateral estoppel does not apply to his guilty plea, he alludes to such an argument.† While the effect of a guilty pleaís collateral estoppel is different from the effect of a conviction after a trial (because of the motives that may underlie a guilty plea), the district court did not use the plea alone to satisfy an element of fraud upon the court.† See Glenís Falls Group Ins. Corp. v. Hoium, 294 Minn. 247, 200 N.W.2d 189 (1972) (discussing collateral effect of guilty plea).† The court used the guilty plea in addition to other evidence to support the finding that father committed fraud.

[2]But see Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993) (holding that unpublished opinions are of persuasive value ď[a]t bestĒ and not precedential).