This opinion will be unpublished and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: Beryl JoAnne Schey, petitioner,


Arban Charles Schey,


Filed May 27, 2003


Minge, Judge


Hennepin County District Court

File No. DW247269


Nancy G. Moehle, 5939 Portland Avenue South, Minneapolis, MN 55417 (for respondent)


Michael L. Perlman, Perlman Law Office, 333 Parkdale Plaza, 1660 South Highway 100, St. Louis Park, MN  55416 (for appellant)


            Considered and decided by Minge, Presiding Judge, Kalitowski, Judge, and Poritsky, Judge.*




U N P U B L I S H E D   O P I N I O N


MINGE, Judge


Appellant moved the district court pursuant to Minn. Stat. § 518.145, subd. 2 (2002), to reopen a default judgment dissolving his marriage and to void a deed he gave to settle a dispute over his non-performance of obligations under that judgment.  Because three years had lapsed since the entry of the dissolution judgment, because the deed had been voluntarily executed and delivered, and because there had been no change in circumstances, we affirm the district court’s denial of his motion.



            Respondent-wife Beryl JoAnne Schey and appellant-husband Arban Charles Schey were married on April 2, 1983.  They separated in 1993; five years later Beryl filed for a marriage dissolution.  She was then 63 years old, and Arban was 70 years old.  Arban responded neither to the dissolution summons and complaint nor to the proposed findings of fact, conclusions of law, and order which were mailed to him.  Nor did he appear at the default hearing on July 26, 1999.  The judgment and decree was entered on August 2, 1999. 

            In the dissolution action, the court found that Arban had an interest in real property in south Minneapolis and that Beryl had a marital interest in that property.  At the time, Arban was delinquent in the payment of the real estate taxes owed on the property, and forfeiture proceedings were being threatened. 

At the time of the dissolution, Beryl was employed and received retirement benefits.  Although the court found that she was capable of self-support, it ordered Arban, whose income was unknown, to pay her $400 per month in permanent maintenance.  If Arban was unable to make the maintenance payments, he was ordered to sell the real property and some of his personal property and make a $60,000 lump sum payment to Beryl in lieu of maintenance.  The court also ordered Arban to make arrangements to pay the delinquent real estate taxes, even if he had to take out a loan.  Because Arban did not pay the taxes, Beryl paid the $6,661.73 that was delinquent.  Arban never made any maintenance payments.  In 2000, he settled with Beryl by transferring his residential real property to her, reserving a life estate for himself.  Arban did not consult an attorney in that matter.  Instead, he filled in a standard deed form by hand. 

In the fall of 2001, Beryl initiated a court proceeding seeking to hold Arban in contempt and to enforce his obligations as the holder of the life estate.  After hearings that both Arban and Beryl attended with counsel, the court ordered Arban to reimburse Beryl the $6,661.73, and to pay homestead taxes, insurance premiums, utilities, and upkeep on the house or lose his life estate.  The court further ordered Arban to provide documentation to Beryl that appropriate insurance was maintained and ordered him to allow her to inspect the property twice a year.  The court noted that its prior dissolution decree was based only on Beryl’s evidence because Arban had not made any appearance.  The court also noted that Arban was now claiming that the deed should be set aside and that the original maintenance order was unconscionable. 

Rather than continue the proceeding initiated by Beryl, Arban’s counsel moved to reopen that judgment.  At that time Arban argued that when Beryl filed for divorce in 1999, he was severely depressed, did not remember receiving the divorce papers, and did not comprehend that the divorce was final.  However, he did not present any expert testimony regarding his mental condition or other evidence to support his contentions.  Arban also contended that the house was his non-marital property because he purchased the house for cash in 1974 and lived in it alone for nine years until he married Beryl.  Arban further contended that no capital improvements were made on the house during their marriage.  While Beryl argued that Arban suggested the quitclaim deed, Arban claimed he was “pressure[d] by the petitioner to do it” and was not aware that the house was non-marital property.  Arban also argued that the court should reopen the spousal maintenance provision because he was retired with an income of only $525 per month.  Arban further argued that “it doesn’t make any sense” that at the age of 70 he was required to pay Beryl spousal maintenance equal to 75% of his gross income when she was capable of self-support. 

            The court held that it had no jurisdiction to reopen the original decree and therefore denied Arban’s motion.  This appeal followed.



            The district court’s decision to refuse 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).  But a question of statutory construction is a question of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).   In 1988, language from Minn. R. Civ. P. 60.02 was used to create what is now subdivision 2 of Minn. Stat.  § 518.145.  Harding v. Harding, 620 N.W.2d 920, 922 (Minn. App. 2001), review denied (Minn. April 17, 2001).  Minn. R. Civ. P. 60.02 specifically excludes marriage dissolution decrees from judgments that may be vacated.  Minn. R. Civ. P. 60.02; see also Harding, 620 N.W.2d at 922 n.3.  Presently, “[t]he sole relief from the [marriage dissolution] judgment and decree lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2.”  Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997).  

Minn. Stat. § 518.145, subd. 2 (2002) allows marriage dissolution decrees to be vacated as follows:

On motion and upon terms as are just, the court may relieve a party from a judgment and decree * * * and may order a new trial or grant other relief as may be just [under the following circumstances]:


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

(2)              newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under the rules of civil procedure, rule 59.03;


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


(4)              the judgment and decree or order is void; or


(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.


Minn. Stat. § 518.145, subd. 2.  The motion is to be made within a reasonable period of time; and under clauses (1), (2), and (3), the motion cannot be made more than a year after the dissolution decree.  Id. 

Arban contends the district court should have reopened the dissolution under clause (5) because it was not equitable to apply the decree and because the circumstances had changed.  To support his claim that clause (5) allows reopening his dissolution judgment for equitable reasons, he relies on Krech v. Krech, 624 N.W.2d 310 (Minn. App. 2001) and Harding v. Harding, 620 N.W.2d 920. 

However, neither the statute nor either of the cases cited is helpful to Arban.  Not only did he have the opportunity to present his position to the court at the time of the dissolution and failed to do so, but he voluntarily and effectively ratified the dissolution judgment by deeding the property to Beryl.  Though Arban claims that he was pressured into giving Beryl the deed, there is no evidence in the record to support his contention.  Beryl testified that the deed was Arban’s idea, and she cites the fact that he filled in the deed form in longhand to support her testimony.

Furthermore, there is no longer any part of the dissolution judgment in this case that has prospective application as is required by the part of Minn. Stat. § 518.145, subd. 2(5) upon which Arban relies.  The deed extinguished any requirement for payment of maintenance.  Not only is it a completed transaction, but as long as he complies with the court order, Arban is not required to move.  He has a life estate. 

            Arban also contends that his mental illness was a significant factor in his lack of response to the original decree and motions.  But Arban did not present any evidence supporting his contention that he was mentally ill.  There were no expert witnesses testifying as to the nature or impact of his illness, no medical records, and no other supporting evidence from any other source.  With only Arban’s bald assertion that he was mentally ill, we are unwilling to reopen a settled judgment to take up this issue.






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