This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
In re the Marriage of:
Sampath Ramachandran, petitioner,
Hennepin County District Court
File No. DW265635
Steven J. Nichols, 2536 Dupont Avenue South, Suite 202, Minneapolis, MN 55405 (for respondent)
John R. Neve, Neve Law Offices, 6117 Oaklawn Avenue, Edina, MN 55424 (for appellant)
Considered and decided by Toussaint, Chief Judge, Hudson, Judge, and Poritsky, Judge.
U N P U B L I S H E D O P I N I O N
In this dissolution action, the district court granted a default judgment against appellant. On appeal, appellant contends that she made a sufficient showing to meet the Finden test, and therefore the court erred in denying her motion to vacate. Because appellant made a strong showing of three out of the four Finden factors, we reverse and remand. We affirm the district court’s judgment insofar as it dissolves the marriage.
Appellant-wife Jyothy Sampath and respondent-husband Sampath Ramachandran were married in Minnesota on February 28, 1998. They were first married about six months earlier in a formal ceremony in India. They separated on August 7, 1999, at which time appellant moved in with her brother in New Jersey.
On January 27, 2001, respondent, acting pro se, served appellant in New Jersey with a petition to dissolve their marriage in Hennepin County. Shortly after appellant was served with the petition, she retained a New Jersey law firm, Franco & Franco, to answer the petition. On August 21, 2001, local counsel Eric Forsberg appeared for her at a settlement conference. After the settlement conference, the court found that there were unresolved issues of maintenance, property, and attorney fees between the parties and that there was a “significant gulf” between the parties’ positions, requiring a trial.
The court held a telephone conference on October 29, 2001. Appellant was represented by Randi Franco. Counsel were informed that the trial would be held on January 3, 2002. The written order that followed contained the trial date and required counsel to “meet and accomplish” several tasks before trial. Counsel were warned in the order that continuances would not be granted except in the “most extraordinary circumstances” and that failure to comply with the court order might result in sanctions, “including refusal to allow designated claims or other sanctions as appropriate.” On October 30, 2001, the court mailed copies of the order to respondent’s counsel and to Randi Franco.
In a letter dated December 28, 2001, and mailed December 31, 2001, Robert Franco informed the court administrator that his letters to appellant had been returned as undeliverable. Mr. Franco asked that the court reschedule the trial, stating “[s]ince this request is the first time I am making same, I do think it is appropriate under these unique circumstances.”
The court administrator filed Mr. Franco’s letter on January 2, 2002 but the trial judge was not aware of the letter until after the January 3 hearing. Neither appellant nor her counsel appeared for trial on January 3, and the court permitted respondent and his counsel to proceed by default. After the default hearing, the court received Mr. Franco’s letter, but denied the continuance as untimely. The court also stated that appellant “has not established good cause for a continuance.” On January 18, the court mailed to the attorneys an order indicating that it would enter a judgment and decree by default.
The court entered findings, conclusions, and an order for judgment on February 4, 2002. The order dissolved the marriage, awarded to respondent all the assets of the parties and the entire student loan debt, and did not award maintenance or attorney fees to either party.
On March 6, appellant filed a one-page affidavit notarized in Hennepin County and a pro se motion to vacate the February 4 default judgment. On March 27, appellant dismissed Franco & Franco as her counsel. On the same day, she moved, through her new local counsel, Tracy Nightingale, for an order dismissing the petition for lack of personal jurisdiction and, in the alternative, for an order vacating the judgment entered on February 4. Appellant’s supporting affidavit indicated that she had not been notified of the trial court date until she was served with the February 4 default judgment.
The court denied appellant’s motion on April 17, 2002, finding that appellant’s statement that she tried almost daily to contact Mr. Franco by phone was not credible in light of her attorney’s diligent efforts to represent her in this matter. The court concluded that appellant
changed her address, and presumably her telephone number, without advising her attorney or making proper arrangements to have her mail forwarded. In this regard, [appellant] was neglectful, and she had not provided any basis for excusing that neglect.
In a May 6, 2002, pro se motion, appellant requested that the court amend the findings and order of April 17 and award her maintenance and attorney fees. Appellant’s affidavit indicated that she had had a temporary address in November, that she did not provide that address to her attorney, and that she had phoned her attorney but never received notice of the trial date. Her brother submitted notarized letters outlining, among other things, steps taken to have phone calls and mail forwarded when he moved.
After a hearing on June 4, 2002, the court took appellant’s pro se motion under advisement. The court issued findings and an order on June 10, 2002, stating that appellant had not provided any “competent evidence that would lead the Court to change its Order of April 17, 2002.” Appellant was cautioned not to make any further repetitive motions.
On August 20, 2002, through another attorney, appellant filed a notice of appeal from the order dated June 5. In an order filed October 8, this court construed the appeal to be from the April 17 order denying the motion to vacate the default judgment.
D E C I S I O N
This court will uphold a district court’s decision on whether to vacate a judgment unless the district court has abused its discretion. Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998).
Here, the district court denied appellant’s motion to vacate the marital dissolution default judgment pursuant to Minn. Stat. § 518.145, subd. 2 (1), (4) (2002). On appeal, appellant argues that she is entitled to relief based on subdivision 2(1) by a showing of excusable neglect and application of the Finden factors.
Due to the paucity of case law interpreting section 518.145, subdivision 2(1), in analyzing cases involving that statute this court has relied on precedent interpreting the identical language in Minn. R. Civ. P. 60.02. See Peterson v. Eishen, 512 N.W.2d 338, 341 (Minn. 1994) (concluding that Minn. R. Civ. P. 60.02(d) was identical to Minn. Stat § 518.145, subd. 2(4) (1992) regarding challenge to timeliness of motion to vacate). It is well established that relief under Rule 60.02 requires that the moving party show the four Finden factors: (1) a reasonable claim on the merits; (2) due diligence after notice of entry of judgment; (3) no substantial prejudice to the opposing party if the motion to vacate is granted; and (4) a reasonable excuse for failure to act. Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964); cf. Charson v. Temple Israel, 419 N.W.2d 488, 491 (Minn. 1988) (stating that Finden factors have been applied for over 20 years).
The district court considered appellant’s excuses for her failure to act and concluded that she had been neglectful and that her neglect was inexcusable. The court did not address the other three Finden factors.
A strong showing on three of the Finden factors may offset relative weakness on the fourth factor. Armstrong v. Heckman, 409 N.W.2d 27, 29 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987) (citing Guillaume & Assocs. v. Don-John Co., 371 N.W.2d 15, 19 (Minn. App. 1985)); Valley View, Inc. v. Schutte, 399 N.W.2d 182, 185 (Minn. App. 1987), review denied (Mar. 18, 1987). Furthermore, under the Finden test, the district court should not focus solely on the reasonableness of a client’s excuse and ignore the remaining factors. Charson, 419 N.W.2d at 491.
With respect to the first Finden factor, the issue is whether appellant has made a showing of a reasonable claim on the merits. Under Minnesota’s marriage dissolution laws, many facts are considered in determining whether maintenance is appropriate, whether attorney fees are justified, and how to equitably divide marital assets and debt. Minn. Stat. §§ 518.552, subds. 1, 2 (2002) (findings and factors used to determine propriety of maintenance award); 518.14 (findings required for an award of attorney fees); 518.58, subd.1 (findings and factors to consider in making a just and equitable division of property and debt). The duration of the marriage is only one of these many factors. See Guetzkow v. Guetzkow, 379 N.W.2d 704, 707 (Minn. App. 1986) (affirming division of marital estate based on conclusive presumption that both parties made substantial contributions to acquisition of income and property during four-year marriage).
After the settlement conference held August 21, 2001, the court determined that there were disputed issues between the parties, requiring a trial. At that time, appellant was unemployed, unable to obtain employment, and living with her brother, who was paying at least some of her bills. She alleges that she had brought a $10,000 dowry into the marriage but that the dowry is in the possession of respondent or his family. At the time of the pre-trial conference, respondent indicated that he was about to start work at Hennepin County Medical Center with an approximate gross monthly income of $3,100. Respondent also provided information regarding various assets, including life insurance, bank accounts, and retirement accounts. While the record is short on facts regarding the marital or nonmarital character of the assets, the record is clear that appellant received no assets in the default judgment, except for personal property in her name or possession. Given the relevant legal standards, appellant has made a strong showing of reasonable claims on the merits for an award of property, maintenance, and attorney fees.
Due Diligence After Notice of Entry
The judgment was entered on February 4. Less than one month later, appellant was in Hennepin County filing her pro se motion and affidavit requesting that the judgment be vacated. About three weeks later, her new local attorney filed a motion for her. We conclude that for a litigant residing in New Jersey and defending a case in Minnesota, appellant made a strong showing that she acted with due diligence after notice of the default proceedings.
No Substantial Prejudice to Opposing Party
On appeal, respondent alleges that he has moved to Detroit to complete his medical training and that if the case proceeds to trial, he will have the burdens of working with his attorney from a distance, attending any further proceedings, which would be difficult and expensive, and interrupting his rigorous and time-consuming course of study.
We note, however, that when respondent chose to start this dissolution action in Minnesota, appellant was in New Jersey. She was thus faced with the same problems, except for interruption of study, which respondent now claims are prejudicial: she or her attorney had to litigate at long distance and she would have to attend most of the proceedings here, incurring expense in doing so. In light of respondent’s choice of venue, it is difficult to credit his claims of prejudice. As to delay in resolving the proceeding, that does not constitute substantial prejudice. Charson, 419 N.W.2d at 491. We conclude that appellant has made a strong showing on the factor of lack of prejudice to the opposing party.
Reasonable Excuse for Failure to Act
The district court found that appellant failed to keep her attorney apprised of her address and phone number for a period of time while the litigation was pending and that, in this respect, she was neglectful. The court’s finding is based in part on a credibility determination, to which we defer. Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959). While the court found that appellant was neglectful, it did not find that she acted intentionally when she failed to attend the trial.
We conclude the appellant has made a weak showing with respect to her reasons for failing to act. But that weak showing can be overcome by a strong showing of the other three Finden factors, and in such a case, it will be appropriate to vacate the default judgment. In Valley View, Inc. v. Schutte, 399 N.W.2d 182, 185 (Minn. App. 1987), we said, “[T]his court has required that the relative weakness of one factor should be balanced against a strong showing on the other three.” In Valley View, this court found it “difficult to believe” that the party and his attorney thought no answer was due to a summons and complaint. Id. We concluded that the party’s excuse for not acting was “weak.” Id. But due to the strong showing on the other three Finden factors, we reversed the trial court and ordered that the default judgment be reopened. Id. at 186. In Hill v. Tischer, 385 N.W.2d 329, 331-32 (Minn. App. 1986), we noted that a client’s busy summer and the fact that he forgot to contact an attorney were weak excuses, but on balance with other factors, the default judgment should nonetheless be opened.
Here, there is no indication from the record that appellant would have failed to appear for trial if she had received timely notice. In her affidavit in support of her motion to vacate the default judgment, she states that she would have attended the trial if she had been notified of the date. Even though she resided in New Jersey, she retained counsel to represent her in the Minnesota action, she denied the petition for marital dissolution, and she apparently did not have communication problems with her counsel until she moved her residence in November. Appellant’s weak showing as to why she failed to appear at trial is outweighed by her strong showing on the other three Finden factors. Accordingly, we conclude that she is entitled to an order vacating the default judgment, and we reverse and remand for further proceedings.
In his brief to this court, respondent asks that, if the matter is remanded to the district court, we order (1) that appellant pay certain of respondent’s attorney fees as a condition of reopening the default judgment and (2) that the dissolution of marriage be final. The issue of attorney fees must be addressed by the district court. “On motion and upon terms as are just the [district] court may relieve a party from a judgment and decree * * *.” Minn. Stat. § 518.145, subd. 2 (2002) (emphasis added).
As to the issue of the finality of the dissolution, Minn. Stat. § 518.145, subd. 1 (2002) provides:
An appeal from the decree of dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the decree which dissolves the marriage beyond the time for appealing from that provision.
Before this court, appellant has challenged the district court’s rulings on maintenance, division of property, and attorney fees. At no point in her appeal, however, has she challenged the court’s finding that there has been an irretrievable breakdown of the marriage, nor has she challenged the provision in the court’s judgment that dissolved the marriage. The time for making an appeal from that provision has expired. Consequently, we affirm the district court’s judgment and decree insofar as it dissolves the marriage.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 In her reply brief, in addressing the issue of due diligence, appellant notes that “Respondent attacks [appellant’s] desire to avoid martial dissolution,” an issue that appellant had not raised in her initial brief. Even though appellant may have wished to reconcile with respondent, in her appeal to this court she has never challenged the district court’s finding that the marriage is irretrievably broken; nor has she has noted a challenge to the provision in the district court’s judgment that dissolved the marriage.