This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-02-1678

 

 

In re the Marriage of:

Michael David Berg, petitioner,

Respondent,

 

vs.

 

Jolean Crystal Berg,

Appellant.

 

 

Filed April 15, 2003

Affirmed

Huspeni, Judge*

 

 

Isanti County District Court

File No. F0001101

 

Patrick T. O’Neil, Mark Benjamin, Parker, Satrom, O’Neill & Benjamin, P.A., 123 South Ashland, Cambridge, MN 55008  (for respondent)

 

Craig A. Goudy, Cox, Goudy, McNulty & Wallace, P.L.L.P., 676A Butler Square, Minneapolis, MN 55403  (for appellant)

 

 

 

            Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            On appeal from the denial of her motion to vacate the stipulated judgment dissolving her marriage to respondent Michael Berg, appellant Jolean Berg argues that the judgment should have been reopened (1) because her failure to sign the waiver of counsel required by Minn. R. Gen. Pract. 306.01(c) rendered the judgment void; (2) for fraud and mistake under Minn. Stat. § 518.145, subd. 2 (2002); and (3) because the judgment was otherwise defective.  Appellant also argues that the judgment entitles her to attorney fees.  Because the district court did not abuse its discretion in refusing to reopen the judgment or misread the judgment in denying fees, we affirm.

FACTS

            In the proceedings that resulted in the stipulated judgment dissolving the parties’ marriage, only respondent had counsel.  The marital termination agreement (MTA) and the resulting dissolution judgment stated that the parties had made full disclosure, waived further discovery, and divided their property.  The following language appeared in the MTA:

Each party expressly stipulates and agrees that each has entered into this stipulation after full disclosure upon the advice of respective counsel and that each has relied upon the other party having fully disclosed all of his or her assets, both real and personal, [and] all income, * * * . 

 

* * *  Full discovery as available through the Minnesota Rules of Civil Procedure has not been completed in this dissolution proceeding.  Rights to further discovery of the parties’ income, assets, real and personal property and debts and liabilities are waived. 

A separate provision of the MTA stated that “[t]he terms of this agreement need not be recited verbatim in the Judgment and Decree of marriage dissolution.” 

Five months after entry of the stipulated judgment, appellant, represented by counsel, moved to reopen the judgment.  After an evidentiary hearing, the district court denied appellant’s motion.  This appeal followed. 

D E C I S I O N

I.

            A dissolution judgment may be reopened if it is void.  Minn. Stat. § 518.145, subd. 2(4) (2002).  Minn. R. Gen. Pract. 306.01(c) states that a pro se party entering a marital termination agreement “shall” execute a waiver of the right to counsel.  Appellant notes that she did not sign a waiver, and argues that this omission rendered the judgment void.[1]  We disagree.

            The construction of a General Rule of Practice is a legal question reviewed de novo.  Smigla v. Schnell, 547 N.W.2d 102, 103 (Minn. App. 1996).  We note initially that rule 306.01(c) provides no penalty for a represented party’s failure to obtain a signed waiver from an unrepresented party.  Appellant cites no authority, and we have found none, requiring the conclusion that the lack of a signed waiver voids a judgment.  Further, this court has refused to rely on the lack of a waiver as a basis to reverse a district court’s denial of a motion to reopen a dissolution judgment.  See Doering v. Doering, 629 N.W.2d 124, 132 & n.2 (Minn. App. 2001) (reversing failure to reopen a judgment, but noting that the failure to get a waiver was “not a separate ground for reversal”), review denied (Minn. Sept. 11, 2001).  Therefore, we conclude that the lack of a signed waiver does not automatically void the judgment. 

            Harmless error is to be ignored.  Minn. R. Civ. P. 61.  Therefore, relief from the judgment here would be appropriate only if an error has caused prejudice to appellant.  Appellant, however, alleges no prejudice as a result of the lack of a signed wavier.  The record shows that (1) the parties and the district court knew that only respondent had counsel; (2) the MTA’s statement that “[e]ach party” entered the MTA on “the advice of respective counsel” is apparently a typographical error; (3) respondent’s counsel told appellant that she could seek counsel; and (4) appellant signed the MTA without thoroughly reading it and without consulting counsel.  On this record, appellant has not shown that her failure to sign a waiver requires that this court reverse the district court’s refusal to reopen the judgment.

II.

A dissolution judgment may be reopened if it was based on fraud or mistake.  Minn. Stat. § 518.145, subd. 2(1), (3) (2002).  A refusal to reopen a dissolution judgment will not be altered on appeal absent an abuse of the district court’s discretion.  Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996).  Findings of fact regarding whether a judgment was prompted by fraud or mistake will not be set aside unless clearly erroneous.  Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998).  A finding is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake was made.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).  And the fact “[t]hat the record might support findings other than those made by the trial court does not show that the court’s findings are defective.”  Id. at 474.

Appellant alleges that respondent’s failure to provide information about the values of his pension and the house constitutes fraud under Doering and that the district court improperly put the burden on appellant to seek information from respondent.  We see no merit in appellant’s argument on this issue.  Doering notes that a party to a dissolution may “waive all rights to receive full disclosure from the adverse party.”  Doering, 629 N.W.2d at 131.  Here, appellant signed the MTA containing a clear waiver of discovery.[2]  Also, Doering did not determine that fraud had, in fact, occurred.  The Doering court remanded for an evidentiary hearing and application of the correct standard to determine whether fraud had occurred.  Id. at 130-32.  Here, (1) in signing an MTA with a discovery waiver, appellant did something contemplated by Doering—she waived discovery; (2) appellant admits she signed the MTA without thoroughly reading it; (3) an evidentiary hearing did occur; and (4) there is no indication that the district court applied the wrong standard in addressing appellant’s motion to reopen.  The district court did not abuse its discretion by not construing Doering to require that the judgment in this case be reopened.

            Appellant also alleges she was mistaken when she signed the MTA, because at that point she did not know the value of respondent’s pension, was not aware that much of the pension was marital property, and was unaware of the extent of the equity in the homestead.  Any lack of information, however, was caused by appellant’s waiver of complete discovery.  And, knowing that her information was incomplete, she waived both any interest in respondent’s pension and the opportunity to consult with counsel.  Therefore, the district court did not abuse its discretion in determining that appellant’s allegations failed to show a mistake justifying a vacation of the stipulated judgment.  Cf. Kornberg, 542 N.W.2d at 386-87 (rejecting attempt to reopen for mistake where stipulated judgment contemplated circumstances on which request to reopen was based and provided a remedy). 

The crux of appellant’s argument is that she would have received a greater share of the home’s equity and respondent’s pension if she had known the law or been represented by counsel.  We are not insensitive to the arguments appellant raises.  While it is possible that we might have decided the mistake question differently if we had been the fact-finders, our standard of review is narrow.  We are unable to see an abuse of discretion in the following findings of the district court:

10.       The significant assets the parties acquired during the marriage were their homestead and [respondent’s] pension benefits and the parties were both aware of these assets.

 

11.       * * *  When [appellant] signed the MTA, * * * [she] knew there was equity in the home.

 

The district court also noted that the MTA provided that the parties “specifically waive any and all right or entitlement to any deferred compensation, pension, profit sharing or other like benefits available to the other,” and that “[e]ach party expressly stipulates and agrees that each has entered into this stipulation after full disclosure.”  The findings of the district court are supported by the record in this case, and we can discern no basis upon which to reverse the district court’s refusal to reopen the judgment.  Cf. Ayers v. Rudolph’s, Inc, 392 N.W.2d 647, 650 (Minn. App. 1986) (neither misapplication of legal theory nor strategic or tactical decision later revealed to be unfavorable are mistakes justifying reopening judgment under rule 60.02).[3] 

III.

            Appellant alleges that the judgment is defective because it lacks findings regarding the value of the house.  A party cannot complain about a lack of findings, however, when she failed to provide the information necessary for the omitted findings.  See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (applying this rule in maintenance context); Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985) (same, in child-support context).  Here, no evidence regarding the value of the house was presented to the district court with the MTA and, given the terms of the MTA, the district court could not have been aware that the value of the house was (or would later be) at issue. 

            Appellant also argues that the judgment is defective because it neither identifies nor awards respondent’s pension.  The judgment awards the parties the accounts in their respective names.  Respondent’s pension is in his name.  Therefore, the judgment awarded respondent’s pension to respondent.  The lack of specific judgment provisions addressing the existence and value of the pension is consistent with the MTA provisions stating that (1) the parties have satisfied themselves as to the value of the other party’s pension and waive any claims to the other party’s retirement benefits; and (2) the MTA’s terms “need not be recited verbatim in the [judgment.]” 

            To the extent appellant argues that the judgment is defective because it is based on a defective MTA, her argument is untimely and not persuasive.  See Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997) (stating that once judgment is entered on a stipulation, “the stipulation is merged into the [judgment] and the stipulation cannot thereafter be the target of attack by a party seeking relief from the [judgment and that the] sole relief from the [judgment] lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2”).  Similarly, any argument that the judgment is defective because it does not accurately reflect the MTA is also untimely.  See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (stating “[e]ven though the decision of the [district] court in the first order may have been wrong, if it is an appealable order it is still final after the time for appeal has expired.”). 

IV.

            The district court denied appellant’s request for attorney fees.  Appellant argues that respondent’s failure to disclose the value of his pension benefits “entitles” her to attorney fees under the judgment.  Stipulated judgments are generally deemed binding contracts.  Shirk, 561 N.W.2d at 521.  Whether a provision is ambiguous is a legal question.  Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn. App. 1986).  Here, the judgment unambiguously states that if “additional assets” are determined to exist, the party “having failed to disclose assets” is liable for attorney fees.  We conclude that there was no failure to disclose assets in this case.  Both parties knew of the existence of all the marital assets.

            The crux of appellant’s argument appears to be that she is entitled to fees because respondent did not disclose the value of his pension.  But appellant, consistent with Doering, signed an MTA containing a waiver of full discovery and stating that she was satisfied regarding her knowledge of the value of respondent’s pension.  Thus, even if the judgment’s attorney-fee provision could apply where the existence of an asset is disclosed but its value is not, appellant would not be entitled to fees here.  The district court did not abuse its discretion in refusing to award attorney fees to appellant.

The district court did not abuse its discretion in refusing to vacate the stipulated judgment, nor did it misread a provision of the judgment when attorney fees were denied.

Affirmed.

 



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

[1] To support her argument, appellant cites Bock v. Bock, 506 N.W.2d 321, 326 (Minn. App. 1993).  Bock, however, reversed for reasons other than the lack of a signed waiver, noted that the General Rules of Practice had not been satisfied, and stated that “[c]ompliance with the pertinent statutes and rules should occur on remand.”  Id.

[2] The judgment notes the lack of formal discovery twice. 

[3] Because we see no abuse of discretion in the district court’s denial of appellant’s motion to reopen the judgment under Minn. Stat. § 518.145, subd. 2, we need not address appellant’s argument that her motion to reopen was timely under the “reasonable time” requirement of that statute.  Clearly, the district court found no untimeliness.  We note, however, that (1) appellant signed the MTA on August 9, 2000 but later that month signed papers allowing the second mortgage to be put on the house, and knew (or should have known) at that time that there was equity in the homestead; (2) the stipulated dissolution judgment was not entered until March 1, 2001; (3) appellant consulted with counsel in May 2001 and, on May 14, signed an affidavit to support a motion to reopen the judgment; (4) appellant did not move to reopen the judgment until August 27, 2001; and (5) the record is silent on why there was a three-and-a-half-month delay between the signing of her affidavit and the motion to reopen.