This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In re: Elizabeth L. Rotenberg,

n/k/a Elizabeth L. Guffan, petitioner,





Richard J. Rotenberg,




Filed December 10, 2002

Affirmed as modified, motions denied

Toussaint, Chief Judge


Hennepin County District Court

File No. DC257325



M. Sue Wilson, M. Sue Wilson Law Offices, P.A., Two Carlson Parkway, Suite 150, Minneapolis, MN 55447 (for appellant)


Kathleen M. Picotte-Newman, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for respondent)



            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Huspeni, Judge.*


U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


Appellant Elizabeth L. Rotenberg challenges district court orders denying her motions to reopen the stipulated judgment dissolving her marriage, for an evidentiary hearing, to compel discovery and order sanctions, for a continuance to conduct discovery, and to modify the recommendations of the parenting-time evaluator, and to award need-based and conduct-based attorney fees.  Because the marital termination agreement waived discovery and further disclosure of the financial matters sought by appellant, but the circumstances require the district court to replace the parenting evaluator, we affirm as modified.  The parties’ motions for attorney fees on appeal are denied.



            After twenty years of marriage, appellant Elizabeth L. Rotenberg and respondent Richard J. Rotenberg entered into a marital termination agreement (MTA) to amicably settle their differences with regard to child custody, child support, spousal maintenance, property division, attorney fees, and other related matters.  The parties had one minor child, who was ten years old at the time of the dissolution. 

Both parties were represented by counsel while negotiating the MTA.  They also utilized mediation services to assist them in reaching an agreement, which called for a lump sum property settlement, no maintenance, reservation of child support, and respondent’s physical custody of the child.

Appellant’s first attorneys wrote her a lengthy letter, detailing why appellant should not sign the MTA and strongly advising her not to sign the agreement without conducting investigative discovery.  When she declined to follow their advice, they withdrew.  Appellant then retained a second attorney, who negotiated an increase in the property settlement from $1.5 million to $2 million and joint legal custody of the child.  Appellant’s attorney clarified her limited representation as follows:

This letter is to inform you that I have specifically instructed you that you could receive more property and possibly permanent maintenance if you were to go forward in a litigation of the above matter.  Further, it is my understanding that only a limited amount of Discovery has been done in this matter and a complete assessment of the property division can’t be done based on the information that is available. 


You have told me that despite the above limitations and warnings, you are willingly signing the Marital Termination Agreement and agree to the provisions in said agreement.


On July 13, 2000, the parties signed the MTA, which stated that the parties understood the final and binding effect of its terms.  With regard to the property, it stated the following:

The parties agree and understand that they have been advised by their attorneys concerning investigative discovery and appraisal procedures available to them to determine the nature, extent and value of the parties’ real and personal property, and that being fully informed of their right to inquire, each party had determined not to engage in all investigative discovery or appraisal procedures available to him/her, instead each party is relying on his/her individual knowledge of assets and liabilities, and specifically the assets and liabilities as set forth on the parties’ financial statement dated May 1, 2000 and their knowledge of debt owed to respondent’s parents, David and Jean Rotenberg, based on loans made to the parties during the years of their marriage.


In a separate paragraph entitled “disclosure,” the parties agreed:

The property referred to in this Marital Termination Agreement represents all the property which either party has any interest in full or in part by either party, separately or by the parties jointly.  In reaching this Marital Termination Agreement, the parties have relied upon their Financial Statement at estimated market value as of May 1, 2000.  Each party in good faith believes that the Financial Statement is complete and lists all of their assets.  The values attributed to each of their assets as shown in the Financial Statement are estimates, which the parties in good faith believe to be accurate.  The parties recognize that the values may change from time to time and by entering into this Marital Termination Agreement, they each waive any right they may have to reject or modify this Marital Termination Agreement based upon a claim that the values attributed to assets may later be found to be incorrect.


The financial statement referred to in the MTA itemized the parties’ assets and liabilities, including an unsecured loan from respondent’s parents in the amount of $11,719,164.

            On August 2, 2000, the district court entered a judgment and decree of dissolution, and the parties’ attorneys certified that the judgment accurately reflected the terms of the MTA.  Prior to entering the judgment, the court was assured by appellant’s counsel that her client indeed wished to proceed as outlined in the MTA.

            In October 2000, appellant hired her third attorney and shortly thereafter, the parties filed cross-motions regarding visitation and restraining orders.  On December 14, 2000, the district court ordered temporary visitation changes and immediate commencement of a visitation evaluation conducted by parenting evaluator Mindy Mitnick.  Another order based on the parties’ stipulation continued the matter until Mitnick submitted her final recommendations.

In May 2001, appellant served “post-judgment” discovery requests on respondent.  The interrogatories and document requests sought discovery of, among other items, financial information for the year following the July 2000 MTA.  Respondent responded on June 13, asking the district court for a protective order.  Before the court had ruled on respondent’s motion, appellant’s attorney indicated that they were considering bringing a motion to reopen the judgment based on fraud, and that they needed documentation supporting the loan from respondent’s parents.  On August 2, 2001, appellant moved to vacate the financial provisions of the judgment based on simple fraud, fraud upon the court, misrepresentation, or mutual mistake or, in the alternative, to schedule an evidentiary hearing.  Appellant alleged that respondent defrauded her on all of the financial issues in the judgment, but she specifically challenged only the debt to respondent’s parents.  Two weeks later, appellant served “reopening post-judgment” discovery requesting financial information as of and following the May 2000 financial statement.

            After appellant’s attorney complained that respondent’s discovery responses were past due, respondent responded with objections that the discovery was harassing, imposed an undue burden and unnecessary expense, and was not reasonably calculated to lead to admissible evidence.  Appellant moved for attorney fees, respondent’s bad-faith interference with her right to discovery.

Prompted by respondent’s failure to arrange for a deposition date, the district court held a telephone conference with the attorneys.  During the conference, the court granted respondent’s outstanding motion for a protective order and stated that respondent need not answer the post-judgment discovery served in May.  Respondent subsequently appeared for his deposition, but did not bring any of the requested documents, which included those requested in the reopening post-judgment discovery.

On October 24, 2001, appellant’s attorney filed an alternative to her motion to reopen, requesting a continuance and an order-compelling respondent to fully answer outstanding discovery.  She asked for conduct- and need-based attorney fees and sanctions for respondent’s failure to bring documents to the deposition.

In the meantime, Mitnick submitted her report on June 4, 2001 and was appointed as the parenting consultant, based on an August 30 stipulated order.  In a letter dated October 12, 2001, Mitnick informed the parties that the August 30 order was unworkable and that she would resign unless the parties adopted another agreement for her services.  On October 24, appellant moved to have another consultant appointed and to adopt Mitnick’s parenting plan recommendations with modifications.  Respondent moved the court to adopt Mitnick’s parenting plan with the agreed upon changes and to appoint a new parenting consultant if Mitnick resigned without the parties agreement as to a new consultant.

            In its November 19 order, the court denied appellant’s request to appoint a new parenting consultant based on the child’s best interests, vacated the unworkable stipulated order, incorporated the parties’ consulting contracts into the order, and ordered the parties to cooperate with Mitnick to retain her services.

            In another order, dated February 15, 2002, the court amended the parenting plan and denied appellant’s motions to reopen the judgment.  The court concluded that appellant had not demonstrated fraud, mistake, or misrepresentation, stating that

[b]oth parties waived all rights to full disclosure from the other * * * [and] [i]n so doing, each party waived their right to claim fraud, misrepresentation, and/or mistake with respect to any of the provisions of the MTA.


Further, with regard to discovery, the court stated that

[Appellant] has submitted numerous and voluminous requests to [Respondent] for discovery.  The requests are for pretrial discovery and are not appropriate.  Appellant waived her right to pretrial discovery and executed a valid waiver in her signed MTA.  Discovery requests regarding [Respondent’s] current income, assets, and liabilities are not appropriate as neither party has a child support or spousal maintenance obligation and the parties’ marriage has been dissolved.  Appellant’s motions to compel discovery will be denied.


The court also denied appellant’s request for attorney fees.

            Appellant appeals the November 7, 2001 and February 15, 2002, orders.  Both parties move for attorney fees on appeal.



Reopening Judgment and Evidentiary Hearing

Courts favor stipulations in dissolution cases as a means of simplifying and expediting litigation, and to bring resolution to often acrimonious relationships.  Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997); Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984).  Stipulations are therefore accorded the sanctity of binding contracts.  Ryan v. Ryan, 292 Minn. 52, 55, 193 N.W.2d 295, 297 (1971).  When a divorce judgment is entered pursuant to a stipulation, the stipulation merges into the judgment and decree, and finality becomes of central importance.  Shirk, 561 N.W.2d at 522.

The sole relief from the judgment and decree lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2 (2000).  The statute allows reopening of the judgment and decree and relief for a party for, among other grounds, mistake, fraud, or misrepresentation.  Id.  A claim under the statute requires an evidentiary hearing unless there is no genuine issue of fact and the applicable law resolves the controversy.  Doering v. Doering, 629 N.W.2d 124, 130 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001).

We apply the rules of contract construction to a stipulated provision in a dissolution judgment.  Blonigen v. Blonigen, 621 N.W.2d 276, 281 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001).  A court “must consider the stipulation as a whole to determine whether an ambiguity exists.”  Id. (citation omitted).  “If no ambiguity exists, interpretation is a question of law subject to de novo review.”  Id. (citation omitted).

The MTA clearly stated that the parties waived investigative discovery and appraisal procedures.  Instead of discovery, each party expressly agreed to rely on his or her own knowledge of the assets and liabilities.  The parties specifically referred to the May 1, 2000, financial statement and their knowledge of the debt to respondent’s parents as items that they would not investigate further.  Both parties agreed that they in good faith believed the list of assets to be complete and waived challenges to the accuracy of the values.

            Minnesota law, most recently stated in Doering, imposes on spouses an affirmative duty to disclose all assets and liabilities completely and accurately in a marriage dissolution proceeding.  Doering, 629 N.W.2d at 130 (citing Bollenbach v. Bollenbach, 285 Minn. 418, 428, 175 N.W.2d 148, 155 (1970)).  Nevertheless, parties may contractually “waive all rights to receive full disclosure from the adverse party.”  Id. at 131.  Here, the parties coupled a discovery waiver with a reliance disclaimer.  The MTA stated that not only has each party determined, after advice of counsel, “not to engage in all investigative discovery or appraisal procedures available to him/her,” but each party  “instead * * * is relying on his/her individual knowledge of assets and liabilities.”  This express language constitutes a waiver of each party’s rights to receive full disclosure. 

            Appellant’s motions to reopen for fraud or mistake, for an evidentiary hearing, and to compel discovery were dependent on discovery and further disclosure of the parties’ debt, which was specifically listed on the financial statement and specifically identified in the MTA as not subject to discovery and further disclosure.  We conclude that the parties unambiguously waived the discovery and further disclosure sought by appellant, and the district court did not err in concluding that the parties’ waiver of discovery and further disclosure of the debt left no genuine issue of material fact to be resolved.


Discovery Motions

            Appellant argues that the district court should have granted her motion to compel discovery for her motion to reopen the judgment, or that it should have granted her motion for a continuance to allow additional discovery.  A district court has “wide discretion to issue discovery orders and, absent clear abuse of that discretion, normally its order with respect thereto will not be disturbed.”  Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990).

Respondent objected to appellant’s discovery requests on the motion to reopen about three weeks after his response was due.  Technically, if a party fails to object to discovery within the time provided by the rules, the party waives the right to object and must provide the discovery.  Minn. R. Civ. P. 33.01, 34.02.  It is clear, however, that the district court has discretion to limit the frequency and use of discovery methods.  Minn. R. Civ. P. 26.02 (a).  And it was clear from the proceedings that the court’s denial of the motion to reopen the judgment was dispositive and determinative of the proper scope of discovery.  Under these facts, the court did not abuse its discretion in denying the motions to compel discovery, to order sanctions, and for a continuance for additional discovery.


Parenting Consultant

Appellant argues that the district court (1) ignored its duty to independently review the parenting evaluator’s recommendations and (2) exceeded its authority in ordering the evaluator to make binding decisions.

The district court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  A district court’s findings of fact will be upheld unless they are clearly erroneous.  Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).

a.      Independent Review of Recommendations

Following Mitnick’s final recommendations, the parties had an opportunity to litigate their respective visitation motions.  While appellant adopted the evaluator’s schedule for the most part, she wanted more time with her child and requested changes.  Respondent requested that the recommendations with all agreed upon changes be adopted.  The district court found that Mitnick was very familiar with the case and had established a rapport with the child and the parties.  The court concluded it was in the child’s best interests for Mitnick to continue as parenting consultant.  In its amended order, the court concluded that only the agreed upon modifications of the schedule were appropriate.  The court again noted that Mitnick served pursuant to their stipulation and that she had so served for over a year.  The court also made specific findings regarding Dr. Donald Pastor, the child’s therapist, who also helped the child understand the visitation arrangement.

A court is not bound by an evaluator’s recommendations.  Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987).  While rejection of an evaluator’s recommendations should be accompanied by some demonstration of the district court’s consideration of the child’s best interests, particularized independent findings are not required.  Id.  Based on the record, we conclude that the court reviewed the recommendations and did not abuse its discretion in ordering a modified version.

b.      Exceeding Authority by Vacating Stipulation

          Early in the proceedings, the district court found that the parties’ visitation problems were “of such a nature as to cause emotional distress to the minor child and [were] not in her best interest.”  The court also found that the parties agreed that Mitnick would conduct a visitation evaluation to assist the parties and the court in making a visitation determination in the child’s best interests.  The stipulated order appointed Mitnick to serve as parenting consultant as long as she agreed to serve.  On October 12, 2001, Mitnick told the parties that she would resign unless the parties agreed to substitute her contract for services for the stipulated order.

           The district court did not abuse its discretion or exceed its authority in attempting, in the child’s best interests, to salvage the parties’ arrangement with Mitnick.  The record reflects that initially Mitnick was willing to continue providing services as long as she was under a new contract.  However, by the time the court amended the initial order vacating the stipulation and order, incorporating the consultant contracts, and ordering the parties to cooperate with Mitnick to retain her services, Mitnick had already withdrawn.  Due to this changed circumstance and the clear need to establish a new parenting consultant, we modify the November 19, 2001, district court order to reinstate the Stipulation and Order for Parenting Consultant dated August 30, 2001.


Attorney Fees in District Court

An award of attorney fees in dissolution cases rests almost entirely in the discretion of the district court, and such determinations should not be disturbed absent a clear abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  The party seeking fees has the burden to show that she is entitled to the award.  Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001).

Under Minn. Stat. § 518.14, subd. 1 (2000), appellant sought both need-based and conduct-based fees.  Here, the district court denied the motion because appellant did not demonstrate the requisite need; she filed voluminous, duplicative, and repetitive motions and pleadings; and respondent had not proceeded in bad faith.  Nevertheless, appellant argues that she is entitled to fees because the district court committed multiple errors in denying her motions.  We disagree.  Not only do we conclude that the district court did not err, but we also conclude that appellant did not provide specific financial data supporting her claim for need-based fees or a basis for conduct-based fees against respondent.  Furthermore, appellant contributed significantly to the breadth and length of the litigation.  Therefore, the district court did not abuse its discretion in denying fees.


Attorney Fees on Appeal

The parties have filed cross-motions for attorney fees on appeal under Minn. Stat. §§ 518.14, 549.211 (2000).  An award of attorney fees on appeal rests on this court’s discretion.  Allstate Ins. Co. v. Allen, 590 N.W.2d 820, 823 (Minn. App. 1999).

Appellant’s motion requests attorney fees for having to prepare a reply brief to respond to all of the disingenuous and misleading material in respondent’s principal brief.  She requests fees because the brief unreasonably contributed to the length and expense of this proceeding, and she requests attorney fees as a sanction for unjustifiable argument.  Respondent’s motion seeks attorney fees for having to respond to appellant’s motion, which he argues was procedurally and substantively flawed. 

This court does not find that respondent’s arguments were specious or advanced only to harass.  Appellant’s decision to file a reply brief was optional.  We cannot conclude that respondent bears all of the responsibility for this acrimonious litigation.  Therefore, we find no basis for awarding attorney fees to either party on appeal.

Affirmed as modified.  Motions denied.

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