This opinion will be unpublished and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:


Gail S. Boardman, petitioner,





Larry D. Boardman,



Filed December 24, 2002


Kalitowski, Judge


Washington County District Court

File No. F5004500


Leland S. Watson, 836 Wells Fargo Midland Building, 401 South Second Avenue, Minneapolis, MN 55401; and


Jonathan Askvig, John F. Gilsdorf, Gilsdorf & Askvig, 1712 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 (for appellant)


Gregory P. Seamon, Suite 300 Parkwood Place, 7650 Currell Blvd., Woodbury, MN 55125 (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Harten, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant Gail S. Boardman contends that (1) the district court abused its discretion by amending a mediated property settlement after the parties had expressed agreement to it in open court; and (2) neither the district court’s findings nor the record support awarding conduct-based attorney fees against appellant under Minn. Stat. § 518.14, subd. 1 (2002).  We affirm. 




            We will not disturb a district court’s determination concerning whether to vacate a dissolution stipulation absent an abuse of discretion.  Toughill v. Toughill, 609 N.W.2d 634, 639 (Minn. App. 2000).  When the dissolution stipulation has not yet been incorporated into a dissolution judgment, the district court considers whether the stipulation was “improvidently made and in equity and good conscience ought not to stand.”  Id. (quotation omitted). 

Here, the district court amended the mediated property settlement after it was read into the record but before it was incorporated into a judgment.  See Minn. R. Civ. P. 54.01 (judgment is defined as the “final determination of the rights of the parties”).  The mediated settlement was read into the record immediately after the third and final mediation session, 12 days before the scheduled trial.  At the second mediation session, the parties signed a document drafted by the mediator, agreeing that appellant would apply for refinancing of the home mortgage and that respondent would pay half the costs of the application and appraisal.  Respondent saw that appraisal for the first time at the third mediation session and immediately commented that he thought $265,000 seemed low.  Respondent nevertheless continued with the mediation, and the parties subsequently reached a settlement.

The next day respondent contacted a real estate agent who conducted a “curbside” appraisal of the homestead.  The agent valued the homestead at approximately $350,000.  Appellant then contacted another real estate appraiser who conducted a “desk” appraisal of the homestead and valued it from $345,000 to $365,000.  Respondent notified the district court of the disparity in valuations, and the district court informed the parties that it would not be equitable for the court to approve a settlement containing a significant unresolved valuation issue.

After approximately six more months of negotiating, including two more appearances before the district court, the court found in an order dated April 16, 2002, that the parties had relied on an erroneous appraisal during mediation and that a mutual mistake had resulted.  The district court amended the parties’ settlement to correct for the $95,000 mutual mistake.  The court adopted the rest of the proposed settlement as submitted by the parties.

Appellant argues that the findings of the district court regarding the value of the homestead and appellant’s appraisal are clearly erroneous.  We disagree.  The district court had evidence to support its findings:  (1) the “curbside” appraisal ordered by respondent assigning a value of $350,000; (2) the “desk” appraisal ordered by respondent assigning a value of $345,000 to $365,000; and (3) the independent appraisal ordered by the district court valuing the homestead at $365,000.  Additionally, although appellant’s appraiser valued the home at $265,000, a deposition of appellant’s appraiser revealed that appellant’s appraiser, unlike the court-appointed appraiser, did not compare the parties’ homestead, which is an acreage site, to other acreage sites.  Because the district court had three separate appraisals valuing the parties’ homestead at approximately $360,000 and because appellant’s appraiser did not compare other acreage sites in ascertaining the home’s value, it was not clearly erroneous for the district court to find that appellant’s appraisal was erroneous and that the true value of the homestead was $360,000.  See Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous).

Based on the district court’s findings, the stipulation regarding the homestead’s value was improvidently made and equity and good conscience required that it be repudiated or withdrawn.  See Toughill, 609 N.W.2d at 639-40.  Stipulations are improvidently made if based on fraud, duress, or mistake and result in prejudice.  Id. at 639 (citing Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998)) (noting that, historically, a party may be relieved of dissolution judgment for fraud, duress, or mistake). 

The district court found that a mutual mistake occurred when the parties relied on appellant’s erroneous appraisal.  Also, it was improvident of respondent to rely on an appraisal during negotiations that he thought was low.  Allowing the original valuation of the homestead to stand would have resulted in prejudice to respondent, and it would not have been equitable for the district court to simply ignore a $95,000 valuation issue and sign a flawed judgment.  Thus, equity and good conscience required modification of the proposed agreement, and we conclude the district court did not abuse its discretion by withdrawing the stipulation and modifying the proposed settlement agreement.

Appellant argues that under Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984), a party’s decision to forego an appraisal does not justify vacating a stipulation.  But Tomscak dealt with vacating a stipulation that had already been incorporated into a judgment.  Id. at 465.  Here, the district court withdrew the stipulation before it was incorporated into a judgment and signed by the court.  Moreover, respondent did not “forego” an appraisal as did the party in Tomscak.  In fact, the record indicates that on several occasions respondent requested that an appraisal of the property be done or that he be allowed access to the property for the purpose of obtaining an appraisal.  Thus, we conclude that Tomscak is not persuasive.


            Minn. Stat. § 518.14, subd. 1 (2002), allows conduct-based attorney fees to be awarded “against a party who unreasonably contributes to the length or expense of the proceeding * * * .”  An award of attorney fees under Minn. Stat. § 518.14, subd. 1, “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).  But the district court must make findings regarding conduct-based fees “to permit meaningful appellate review” of the award.  Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992).  Conduct-based fees must be based on behavior occurring during the litigation, and the court must identify the specific conduct on which it bases the fees.  Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn. App. 2001).

            Here, the district court amended the parties’ settlement to correct for the mutual valuation mistake.  The district court stated that:

Although the mistake seems easily correctable, [appellant] argued that the parties did not rely on her appraiser’s valuation, that the mistake could not be easily fixed, that the entire settlement must be rejected, and that the parties must essentially start over from scratch.  In response to [appellant’s] arguments, Respondent moved for a simple amendment to the parties’ settlement agreement * * * .


This language identifies the specific conduct of appellant that unreasonably contributed to the length and expense of this litigation.  Despite the other appraisals obtained throughout negotiations, including the independent court-appointed appraisal of $365,000, appellant maintained that the district court must adhere to the proposed agreement as it was read into the record.

In addition, the record indicates that after ignoring respondent’s earlier requests for access to the homestead for an appraisal, appellant finally presented an appraisal to respondent at the final mediation session on a form indicating that the appraisal was conducted by an appraiser hired by a mortgage company.  But the record further indicates that no mortgage company was involved and that appellant had personally arranged the appraisal.

We conclude that the district court properly found that appellant’s conduct caused the protraction of these proceedings, and that on these facts the court did not abuse its discretion in awarding respondent conduct-based attorney fees.

            Respondent argues that he is entitled to appellate attorney fees, relying on Minn. Stat. § 518.14 (2002) and several cases.  But respondent’s request for attorney fees on appeal must be made by motion.  See Minn. R. Civ. App. P. 139.06 (party seeking attorney fees on appeal shall submit such a request by motion).  Because respondent failed to make the required motion, we do not address the issue of attorney fees on appeal.