This opinion will be unpublished and

may not be cited except as provided by

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








In re the Matter of:

Gregory Keith Maestas, petitioner,





Michelle Koeke,




Filed July 22, 2003

Affirmed and remanded

Parker, Judge*



Big Stone County District Court

File No. F90150084



Andrew J. Laufers, 506 2nd Street West, Madison, MN 56256 (for respondent)


Ronald R. Frauenshuh, Jr., 129 N.W. 2nd Street, Ortonville, MN 56278 (for appellant)



            Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


After appellant Michelle Koeke failed to respond to respondent Gregory Maestas’s petition for a determination of parentage, the district court entered a default judgment adjudicating Maestas the father of then five-year-old Wayland Maestas.  The court subsequently awarded Maestas custody of the child.  On appeal from the denial of her alternative motion to vacate the adjudication of paternity or for amended findings, Koeke argues that (1) the district court abused discretion by ordering a default judgment as a sanction for her failure to respond to Maestas’s petition, and (2) if Maestas is determined not to be the child’s biological father, the court abused discretion in determining custody by applying the best-interests-of-the-child standard in Minn. Stat. § 518.17, subd. 1 (2002), without regard to the presumption favoring parents over third parties in custody matters.  We conclude that the district court did not abuse discretion by ordering judgment by default.  But because of the consequences of the adjudication on Koeke and the need for a judgment to reflect the merits of the case, we remand with instructions that the district court order testing of blood or other bodily substance sufficient to determine paternity to a reasonable degree of medical certainty to be conducted within 90 days from this court’s decision.


In August 2001, Gregory Maestas petitioned to be adjudicated the father of Wayland Maestas, a child born to Michelle Koeke while she was living with Maestas.  Koeke did not respond.  Maestas then moved for a default judgment.  Once again Koeke did not respond, but she appeared at the motion hearing and stated that Maestas was not the child’s father.

In January 2002, the court granted Maestas’s motion for a default judgment and adjudicated him the child’s father.  The court advised Koeke that the judgment would remain in effect unless vacated and that she should contact an attorney if she wanted to vacate the judgment.

Six months later, after the court appointed counsel for both parties, Maestas moved for a determination of custody.  In turn, Koeke moved to vacate the default judgment but  included no supporting affidavits with her motion.

In August 2002, the court summarily denied Koeke’s motion to vacate and granted Maestas’s motion for an evidentiary hearing.  Before the hearing, Koeke submitted an affidavit alleging that Stacy Miller is the child’s biological father and that, because of cultural differences, she “did not understand the need to be timely” in responding to Maestas’s petition for a determination of parentage.

Following the custody hearing, the court adjudicated Maestas the child’s father and awarded him sole physical custody.  Five weeks after the court’s order, the guardian ad litem issued a report expressing reservations about the paternity adjudication and the award of custody to Maestas.

Koeke then brought a posttrial motion to vacate the paternity adjudication on the ground of fraud or, alternatively, for amended findings.  The district court denied Koeke’s posttrial motion, reasoning that she had not established her claim of fraud by clear and convincing evidence and that the paternity adjudication was proper and best served the child’s interests.[1]  This appeal followed the denial of Koeke’s posttrial motion.




            Koeke first argues that the district court abused discretion by denying her motion to vacate the paternity adjudication.

A defaulting party may be relieved from a final judgment under rule 60.02 of the Minnesota Rules of Civil Procedure upon a showing of mistake, inadvertence, surprise, excusable neglect, and, in exceptional circumstances, any other reason justifying relief.  Minn. R. Civ. P. 60.02.  In addition to the rule 60.02 requirements, a party seeking relief must affirmatively establish that (1) she has a reasonable defense on the merits of the case, (2) she has a reasonable excuse for her failure to act; (3) she acted with due diligence after receiving notice that judgment had been entered; and (4) no substantial prejudice will result to the opposing party if the motion to vacate the default judgment is granted.  Finden v. Klaas,268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964).  To obtain relief, the moving party must establish all four factors.  In re Welfare of Children of Coats, 633 N.W.2d 505, 510 (Minn. 2001)But a weak showing on one of the four factors may be offset by a strong showing on the remaining three factors.  Reid v. Strodtman, 631 N.W.2d 414, 419 (Minn. App. 2001); cf. Wiethoff v. Williams, 413 N.W.2d 533 (Minn. App. 1987) (stating that a weak showing on two of the factors justifies denial of motion to vacate).   

Default judgments are to be liberally reopened to promote resolution of cases on the merits, especially in paternity cases.  See Losoya v. Richardson, 584 N.W.2d 425, 429-30 (Minn. App. 1998) (noting emphasis courts place on accurate paternity determinations).  But the right to be relieved of a judgment is not absolute.  Sand v. Sch. Serv. Employees Union Local 284, 402 N.W.2d 183, 186 (Minn. App. 1987), review denied (Minn. Apr. 29, 1987).  Instead, the decision to vacate a judgment is largely within the district court’s broad discretion and will not be reversed on appeal absent a clear abuse of that discretion.  Id.  When reviewing the denial of a motion to vacate a default judgment, this court must view the record in the light most favorable to the district court’s judgment.  Bentonize, Inc. v. Green, 431 N.W.2d 579, 582 (Minn. App. 1988).   

            Viewed in the light most favorable to the judgment, the record does not support a determination that the district court abused discretion.  As a preliminary matter, Koeke failed to make the showing necessary to establish mistake, inadvertence, excusable neglect, or any other reason justifying relief under rule 60.02.  Indeed, Koeke did not advance a single credible reason for failing to answer Maestas’s petition.  See Wessels v. Swanson, 289 N.W.2d 469, 470 (Minn. 1979) (holding that district court did not abuse  discretion in denying motion to vacate default judgment adjudicating defendant father of plaintiff’s children where defendant advanced no reason for failure to file answer or act with due diligence after receiving notice of judgment).

            In addition, Koeke did not establish three of the four Finden factors.  First, she failed to establish that she has a meritorious defense on the merits.  The existence of a meritorious claim or defense “must ordinarily be demonstrated by more than conclusory allegations in moving papers.”  Charson v. Temple Israel, 419 N.W.2d 488, 491 (Minn. 1988).  Koeke submitted nothing other than conclusory allegations in support of her defense that Maestas was not the child’s father.  Despite having significant time to do so, she did not seek an order for genetic testing or procure an affidavit from Stacy Miller, the person she claims is the child’s father, stating that he is indeed the father.  Koeke’s unsupported allegations are insufficient to satisfy her burden of establishing a meritorious defense.  See Coats, 633 N.W.2d at 511 (affirming denial of motion to vacate default judgment where moving party’s proffered defense was supported by no more than conclusory statements); Milner v. Haller, 296 Minn. 498, 499-500, 206 N.W.2d 924, 925 (1973) (upholding refusal to reopen default judgment where moving party’s statement of defense was conclusory); Frontier Lumber & Hardware, Inc. v. Dickey, 289 Minn. 162, 164, 183 N.W.2d 788, 790 (1971) (same).

            Koeke also failed to establish that she had a reasonable excuse for failing to respond to Maestas’s motion, the second Finden factor.  Koeke claims that she failed to respond because, as a result of cultural differences, she did not understand “the need to be timely” in responding.  But Koeke submitted no evidence detailing how cultural differences played a role in her failure to understand the need for timeliness.    

            Koeke similarly failed to establish that she exercised due diligence after discovering that the default judgment had been issued.  Despite the district court’s urging that she retain counsel if she wanted to vacate the default judgment, Koeke did nothing to reopen the judgment until Maestas moved for custody six months later.  Although under rule 60.02 Koeke had one year from the entry of judgment to seek relief, promptness is required and Koeke did not explain why she waited six months to act.  See Petrich v. Dyke, 419 N.W.2d 833, 835 (Minn. App. 1988) (due diligence factor met where motion to vacate brought less than one week after judgment entered); Valley View, Inc. v. Schutte, 399 N.W.2d 182, 185 (Minn. App. 1987), review denied (Minn. Mar. 18, 1987) (same); cf. Galatovich v. Watson, 412 N.W.2d 758, 760 (Minn. App. 1987) (defendant who moved to vacate six months after entry of judgment satisfied due-diligence factor where defendant was not told and did not know that he should contact attorney to avoid default judgment and acted promptly after learning of judgment); Reardon Office Equip. v. Nelson, 409 N.W.2d 222, 225 (Minn. App. 1987) (one-month delay in seeking relief deemed reasonable where defaulting party lacked understanding of significance of events andreasonably believed that phone call to opposing party was sufficient to forestall further action).

            Because the record shows that Maestas would not be prejudiced by the reopening of the judgment, the fourth Finden factor favors Koeke.  The record contains no indication that this case could not be adequately tried if the judgment were reopened.  See Grunke v. Kloskin, 355 N.W.2d 207, 209-10 (Minn. App. 1984)  (stating that party is prejudiced if a case cannot be adequately tried, a witness is no longer available, or evidence has otherwise been affected because of delay).  Maestas argues that the reopening of the judgment would prejudice him because it would affect his relationship with the child.  But any concerns about Maestas’s relationship with the child could be addressed by appropriate conditions on the reopening of the judgment designed to balance the parties’ rights.  See Nielsen Stock & Blackburn v. Fin. Acceptance Corp., 299 Minn. 81, 85, 216 N.W.2d 693, 696 (1974) (stating court may impose conditions on reopening of judgment to offset prejudice).

Even though Maestas would not be prejudiced if Koeke is relieved from the judgment, we cannot say that the district court abused discretion in refusing Koeke’s request for rule 60.02 relief.  See Strodtman, 631 N.W.2d at 420 (concluding that weak showing on one Finden factor was offset by a strong showing on remaining three factors).  Nonetheless, in view of the availability of genetic-testing technology which can, to a scientific degree of accuracy, determine paternity, we adopt the procedure used by the Minnesota Supreme Court in Wessels, 289 N.W.2d at 470.

Because the district court applied the best-interests-of-the-child standard in awarding Maestas custody, Koeke must be given the opportunity to present evidence of non-paternity which, if presented, would show that the district court applied the wrong standard in deciding custody.  We, therefore, remand with instructions that the district court order testing of blood or bodily substance sufficient to determine paternity to a reasonable degree of medical certainty, to be conducted within 90 days from the filing of this opinion.  See id. (recognizing financial burden adjudication of parentage places on defaulting party and the consequences of the adjudication on others and allowing a party challenging a default adjudication of paternity 90 days to present proof that reliable blood-grouping tests are available and that he has undergone or will undergo such tests to substantiate his denial of paternity).


            Koeke next argues that in determining custody, the district court abused discretion by applying the best-interests standard in Minn. Stat. § 518.17 (2002), without regard to the presumption favoring parents over third parties for custody-award purposes.  See In re Custody of N.A.K., 649 N.W.2d 166, 175 (Minn. 2002) (stating that the presumption favoring parents over third parties for purposes of a custody award may be overcome “only by evidence evincing the existence of extraordinary circumstances of a grave and weighty nature showing that the best interests of the child require that the * * * parent be denied custody”).  Because the district court adjudicated Maestas to be the child’s father, the court properly applied the best-interests standard in Minn. Stat. § 518.17 in determining custody, without regard to the parental presumption.  But if, after 90 days, testing indicates that Maestas is not the child’s father, the district court must reevaluate its custody determination in light of the presumption favoring biological parents over third parties. 

            Affirmed and remanded.


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


[1] The court did not consider the factors typically relevant to a determination of whether a defaulting party is entitled to relief under Minn. R. Civ. P. 60.02.  Instead, as an apparent alternative to its default paternity adjudication, the court noted that its decision was supported by evidence that (1) the parties lived together before the child’s birth in 1996; (2) Koeke left the child with Maestas from 1999 until June 2001; (3) Koeke rarely contacted the child while he lived with Maestas; (4) Maestas was financially responsible for the child while he was under his care; (5) Maestas expressed a desire to parent the child by initiating this action; and (6) he held out to the world that he was the child’s father by giving the child his name.