This opinion will be unpublished and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:
Suzy Rae Affeldt, petitioner,


Brian Lee Affeldt,


Filed March 18, 2003


Stoneburner, Judge


Beltrami County District Court

File No. F30136


Ronald S. Cayko, Fuller, Wallner & Anderson, Ltd., 514 America Avenue, Box 880, Bemidji, MN 56619-0880 (for respondent)


George L. Duranske, III, Duranske Law Firm, 1435 Anne Street Northwest, Box 1383, Bemidji, MN 56619-1383 (for appellant)


            Considered and decided by Randall, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N



            Appellant Brian Lee Affeldt argues that the district court abused its discretion by denying his motion to vacate a default dissolution judgment pursuant to Minn. Stat. § 518.145, Subd. 2.  We affirm.



            The district court granted respondent Suzy Rae Affeldt’s motion to strike appellant Brian Lee Affeldt’s answer in this dissolution proceeding and to allow respondent to proceed by default as a sanction for appellant’s failure to provide discovery as ordered by the district court.  Appellant argues that the failure to provide discovery was due to his attorney’s neglect for which appellant should not have been sanctioned.  Based on the procedural history of the case, the district court found that appellant was responsible for violation of the orders and that appellant failed to establish that he is entitled to relief pursuant to Minn. Stat. § 518.145, Subd. 2 (2000).  This appeal followed, challenging both the denial of the motion to vacate and the judgment itself.



            A 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).  The district court’s findings as to whether a statutory ground for reopening a judgment exists will not be set aside unless clearly erroneous.  Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998) (stating that findings as to whether judgment was prompted by mistake or fraud will not be set aside unless clearly erroneous).  A finding is “clearly erroneous” if the reviewing court is “left with the definite and firm conviction that a mistake has been made.”  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (citation omitted).

A court may relieve a party from a judgment for excusable neglect.  Minn. Stat.    § 518.145, Subd. 2 (1) (2000).  But neglect by the party which leads to entry of a default judgment is inexcusable, and not a proper ground for reopening a judgment.  Howard v. Frondell, 387 N.W.2d 205, 207-08 (Minn. App. 1986) (analyzing “excusable neglect” in the context of a motion to set aside a default judgment under Minn. R. Civ. P. 60.02), review denied (Minn. Jul. 31, 1986).

Even when a defaulting party alleges attorney neglect, a trial court may still properly refuse to reopen the judgment if the defaulting party is personally guilty of inexcusable neglect.


Id. at 208 (citation omitted).

            In this case, the district court issued a scheduling order on March 13, 2001, establishing July 1, 2001 as the discovery deadline and setting trial for August 6, 2001.  Because appellant failed to timely answer discovery, respondent brought a motion to compel discovery.  Appellant did not appear personally for the hearing on this motion and his attorney did not oppose the motion, stating to the district court that he had not heard from appellant.  The district court rescheduled the trial to August 27, and ordered appellant to “fully and completely” respond to discovery no later than July 31, 2001, and to pay respondent’s attorney fees incurred in relation to the motion to compel.

            On August 16, 2001, respondent moved for permission to proceed by default at the August 27 trial because appellant failed to comply with the discovery order.  Appellant was present with counsel on August 27.  The district court granted respondent’s request to proceed as if by default with respect to custody and visitation.  The district court rescheduled trial on the remaining issues to November 16, and ordered appellant to provide completed discovery within 3 weeks from the August 27 hearing, and to pay respondent $2,000 in attorney fees within one month of August 27.    

A partial judgment, entered October 22, 2001, dissolved the marriage and awarded sole legal and physical custody of the children to respondent, subject to appellant’s right to supervised visitation.  On November 1, 2001, respondent moved to proceed by default at the November 16 trial because appellant had still not answered discovery and had not paid court-ordered attorney fees.  This motion was heard at the beginning of the trial on November 16.  The district court was informed that appellant had delivered partial answers to discovery on November 15, and was willing to pay the attorney fees immediately.  Because appellant did not offer a justifiable reason why he continued to be in defiance of court orders, the district court granted respondent’s motion to proceed by default. 

Although appellant claimed in his motion to vacate that the failure to answer discovery was entirely the fault of his attorney, he had no explanation for his failure to pay attorney fees.  And, several of the documents appellant provided to his attorney were faxed to the attorney on November 13, long after the deadline set by the district court and only three days before trial. 

The only authority offered by appellant is Conley v. Downing, 321 N.W.2d 36, 40 (Minn. 1982) (reaffirming principle that court should relieve a party from the consequences of his attorney’s neglect where the party has a reasonable defense on the merits, has a reasonable excuse for his neglect, has acted with due diligence after notice of entry of judgment and shows that no substantial prejudice will result to the other party).  Conley did not involve neglect by the party.  And in this case, in addition to finding inexcusable neglect by appellant, the district court found that appellant has failed to show that respondent would not be prejudiced by vacating the judgment and has failed to show that he has a reasonable “defense on the merits.”  Those findings are supported by the record.   

Clearly the record supports the district court’s finding that appellant himself violated the discovery orders and has offered no reasonable excuse for the violations.  The district court did not abuse its discretion by holding that appellant is not entitled to vacation of the judgment for excusable neglect.

Appellant also alleges that the district court granted everything respondent requested without any effort to make an “equitable division.”  Cf. Minn. Stat. § 518.55, subd. 1 (2002) (requiring equitable division of marital property).  The record demonstrates that this claim is without merit.  The district court’s memorandum attached to the judgment demonstrates full awareness of the responsibility to make a “just distribution of property” despite the difficulties in doing so caused by appellant’s failure to respond to discovery.