This opinion will be unpublished and

may not be cited except as provided by

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






In re the Marriage of:

Alvin Arthur Asp, petitioner,





Robin Faye Asp,



Filed December 17, 2002


Halbrooks, Judge


Pennington County District Court

File No. F101529


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


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



            Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Halbrooks, 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 denial of her motion to reopen a judgment of dissolution based on allegations of fraud and misrepresentations made by respondent.  Because the district court acted within its discretion, we affirm.


Respondent Alvin Asp and appellant Robin Asp were married on June 12, 1976.  They have two sons, both of whom had reached the age of majority before respondent filed a petition for dissolution on August 20, 2001. 

A dissolution hearing was held on September 25, 2001.  Respondent was present and represented by counsel; appellant appeared pro se.  Appellant asserted that she had not retained counsel because she could not afford to do so, but told the court that she did not need an attorney as she did not intend to challenge the dissolution.  At the hearing, a marital termination agreement prepared by respondent’s attorney was presented to the court.  Appellant stated that she had read the agreement but had refused to sign it because she believed that there were no “spiritual grounds” for the divorce.  But appellant initialed the agreement in several places.  The court specifically addressed appellant in order to get her input and to give her an opportunity to express her feelings and opinions.  Appellant stated that, although she could not sign the termination agreement, she was willing to accept what was expressed in it because she feared contesting it would damage her relationship with her sons.

In addition to other terms, the marital termination agreement provided for the distribution of various real and personal properties.  Relevant to this appeal are paragraph 7(B), regarding distribution of vehicles; and paragraph 8, which provides that title to a parcel of land, denoted as parcel #8 in the agreement, be transferred to appellant “free and clear of all encumbrances.”

On January 22, 2002, after obtaining counsel, appellant filed a motion for contempt and to reopen the judgment and decree, alleging that respondent had not complied with the title transfer within the time prescribed, and because four vehicles and three snowmobiles had not been included in the original agreement.  Appellant specifically alleged that respondent intentionally withheld disclosure of the vehicles and snowmobiles.  Appellant also sought clarification of the order concerning responsibility for the Discover card debt.

Respondent asserted that three of the undisclosed vehicles were “junk vehicles” with little value and that the remaining vehicle and two of the snowmobiles belonged to the parties’ sons.  Respondent admitted that he had forgotten to include the third snowmobile, titled in his name, in the marital termination agreement, but stated that it had been on appellant’s land throughout the dissolution proceedings and that she could keep it.  Respondent also brought a motion for contempt. 

The district court ruled that paragraph 5 of the conclusions of law in the judgment and decree concerning the Discover card debt was ambiguous.  The court clarified the order to provide that respondent was responsible for the amount of $2,950, the cost of some equipment purchased for the farming operation.  The court denied the other motions on the grounds that there was no fraud or intentional misrepresentation to justify reopening the judgment and decree and no basis to support either contempt motion.  This appeal follows.


1.         The district court did not abuse its discretion by denying appellant’s motion to reopen the dissolution decree under Minn. Stat. § 518.145, subd. 2(3) (2002).


            A district court’s decision not to reopen a judgment will not be disturbed absent an abuse of discretion.  Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998).  The district court’s findings of fact regarding whether a judgment was procured by fraud or mistake will be upheld unless clearly erroneous.  Id

            Minn. Stat. § 518.145, subd. 2 (2002), states, in part:

Subd. 2.  Reopening.  On motion and upon terms as are just, the court may relieve a party from a judgment and decree, order, or other proceeding under this chapter, * * * and may order a new trial or grant other relief as may be just for the following reasons:

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

            * * * *

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

            * * * *

            (5)  the judgment has been satisfied, released, or discharged, or a prior judgment and decree or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment and decree or order should have prospective application.


            When a party brings a motion to reopen a judgment of marital dissolution within one year of the judgment, claiming to have been defrauded by the opposing party’s failure to make full disclosure of assets, ordinary fraud is the appropriate legal standard for the court to apply.  Doering v. Doering, 629 N.W.2d 124, 129 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001).  Grounds for relief from such a judgment are found in Minn. Stat. § 518.145, subd. 2.  Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997).

            Although the district court references the definition for fraud on the court in its memorandum, and cites Maranda v. Maranda, 449 N.W.2d 158 (Minn. 1989), in which the supreme court applied this more stringent standard, a reading of the district court’s order and memorandum reveals that the court acted within its discretion in denying appellant’s motion to reopen the judgment.

            Although it could be argued that a basis to reopen the judgment technically existed due to respondent’s failure to include some vehicles and snowmobiles in the marital termination agreement, the court found that three of the four vehicles were “junk,” that the other vehicle and two of the three snowmobiles belonged to the parties’ sons, and that the third snowmobile was on appellant’s property.  Appellant brought forth no evidence to the contrary.  Such factual findings will not be overturned absent an abuse of discretion.  Hestekin, 587 N.W.2d at 310.

            The district court must view the judgment as entered and determine whether or not exclusion of the assets affects its fairness.  See Kornberg v. Kornberg, 542 N.W.2d 379, 387 (Minn. 1996).  If the unintentional nondisclosure does not affect the fairness of the judgment, it will not rise to the level of ordinary fraud.  The district court appropriately exercised its discretion in deciding not to reopen the judgment in the interest of fairness.  Doering, 629 N.W.2d at 129. 

2.         The district court did not abuse its discretion by denying appellant’s motion to reopen the dissolution decree under Minn. Stat. § 518.145, subd. 2(5).


Based on Minn. Stat. § 518.145, subd. 2(5), appellant asserts that she is entitled to relief from the judgment and decree because the judgment was unfair based on more than a change in circumstances of the parties.  This court has interpreted Minn. Stat. § 518.145, subd. 2, as

intended to allow reopening only when necessary to relieve a party from an obligation that has been extinguished, or to otherwise reduce or omit a party’s obligations[.]


Krech v. Krech, 624 N.W.2d 310, 312 (Minn. App. 2001).

            Appellant does not seek to extinguish or gain relief from any obligation imposed by the judgment.  Appellant simply argues that the judgment is unfair because of respondent’s nondisclosure of assets and alleged misrepresentations that resulted in appellant’s decision not to challenge the termination agreement.  The essence of appellant’s argument on this issue centers on appellant’s assertion that respondent assured her that she would have a better relationship with her sons if she did not challenge the dissolution.  Essentially, appellant argues that she traded her right to contest the dissolution agreement for a better relationship with her sons, but did not, in her opinion, receive the benefit of her bargain.   

            Based on the statute and relevant caselaw regarding this issue, the district court did not abuse its discretion in denying appellant’s motion to reopen the judgment on these grounds.  We affirm the district court’s ruling on this issue.

3.         The district court did not err by deciding appellant’s motions without an evidentiary hearing.


Finally, appellant contends that the district court abused its discretion by deciding these issues without an evidentiary hearing.  Minn. R. Gen. Pract. 303.03(d) provides that motions in family law, other than those for contempt, are decided without an evidentiary hearing, unless the court orders one for good cause.  Minn. R. Gen. Pract. 303.03(d); Doering, 629 N.W.2d at 130.  When no evidentiary hearing is requested, the district court resolves the issues presented based on the submissions by the parties and the records before the court.  See Minn. R. Civ. P. 52.01.

Here, neither party requested an evidentiary hearing to resolve the issue of whether the judgment should be reopened.  Appellant, in her brief, relies on Doering in support of her assertion that the district court abused its discretion by deciding the issue based on the parties’ affidavits and arguments of counsel.  But Doering is distinguishable from this matter in that the appellant in Doering requested an evidentiary hearing and that request was specifically denied.  629 N.W.2d at 127.  The district court acted within its discretion in deciding these issues without an evidentiary hearing.