This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-98

 

 

In re Kathleen M. Doering, petitioner,

Respondent,

 

vs.

 

Chester H. Doering, Jr.,

Appellant.

 

 

Filed August 19, 2003

Affirmed

Parker, Judge*

 

 

Houston County District Court

File No. F9-98-226

 

 

James R. Forsythe, Streater & Murphy, P.A., 64 East Fourth Street, P.O. Box 310, Winona, MN† 55987-0310 (for respondent)

 

Jill I. Frieders, OíBrien & Wolf, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN† 55903-0968 (for appellant)

 

 

††††††††††† Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Parker, Judge.

U N P U B L I S H E D†† O P I N I O N

PARKER, Judge

Chester Doering appeals from a district court order on remand denying his motion to reopen a judgment of marital dissolution for fraud.† Because the record provides adequate support for the district courtís conclusion that each of the parties was aware of the extent and nature of the otherís assets and liabilities, we affirm.

D E C I S I O N

The parties dissolved their marriage and divided their property pursuant to an agreement.† After the dissolution became final, appellant moved to reopen the judgment, alleging that respondent had failed to disclose the full extent and amount of various assets.† The district court denied the motion without a hearing on grounds that appellant had failed to present evidence that respondent intended to defraud him.

Appellant challenges the denial of his motion.† This court determined that a party alleging fraud need not prove intent to defraud when seeking to reopen a judgment under section 518.145 and remanded to the district court for an evidentiary hearing, in which the ordinary fraud standard was to be applied.† Doering v. Doering, 629 N.W.2d 124 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001).† On remand, the district court once again denied appellantís motion to reopen the judgment, concluding that both parties knew the nature and extent of their assets and liabilities and that appellant had agreed to the settlement with full knowledge that the partiesí shares of the marital estate were not equal.† This appeal followed.


1.†††††††† The scope of the duty to disclose marital assets

Appellant contends that respondent failed affirmatively to disclose certain assets and that such nondisclosure alone constitutes fraud warranting a reopening of the judgment.† Appellant misapprehends the law.† While appellant argues correctly that proof of nondisclosure is sufficient to establish a breach of the duty to disclose which exists between parties to a marital dissolution, id. at 131, that duty extends only to assets whose existence or size is unknown to the other party.† See Bollenbach v. Bollenbach, 285 Minn. 418, 428, 175 N.W.2d 148, 155 (1970) (observing that failure to make a full and accurate disclosure of assets ďjustifies inferences adverse to the party who conceals or evadesĒ(emphasis added)).† The district court determined that appellant was aware of the existence of each of the disputed assets.† If that finding has adequate support in the record, respondent was under no further affirmative duty to disclose the disputed assets and her failure to do so does not constitute fraud.†

2.†††††††† The district courtís findings of knowledge on part of appellant

The presence of fraud is a question of fact.† Barr/Nelson, Inc. v. Tontoís, Inc., 336 N.W.2d 46, 51 (Minn. 1983).† This court reviews a district courtís findings that a judgment was prompted by fraud under a clearly erroneous standard.† Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998).† Appellant contends that the evidence does not support the district courtís finding that he had full knowledge of the nature and extent of three of the partiesí assets.


a.†††††††† Respondentís pension account.

Appellant contends he was unaware of the value of respondentís pension account.† The district court heard and credited testimony by respondent that she had shown appellant a copy of the most recent account statement during their discussions of the dissolution.† Appellant disputed that claim.† Credibility determinations are within the province of the district court and will not be reassessed on appeal.† Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (ďDeference must be given to the opportunity of the trial court to assess the credibility of the witnesses.Ē).† We therefore decline to disturb the district courtís finding that appellant was aware of the account and its balance.

Appellant also argues that respondent failed to disclose that the account balance increased during the months between the beginning of the dissolution proceeding and its conclusion.† But appellant neither claims nor presents evidence showing that he himself was unaware of the balance increase or that respondent in fact knew the balance had increased.† His assertion that respondent must have known the balance was increasing because she continued to make salary contributions to the account ignores that growth in a pension fund of the size and type of respondentís is a function of contributions and market conditions.† Continued contribution is no guarantee of continued account growth.† We accordingly conclude that the district courtís findings as to the pension account were not clearly erroneous.

b.†††††††† The Merrill Lynch account

Appellant argued in the district court that respondent had failed to disclose the value of a joint Merrill Lynch investment account.† The district court determined that the account was opened in the late 1980s or early 1990s with funds that included stock held by appellant, that the account was jointly held, that monthly statements were sent to the partiesí home and were kept in the family filing cabinet to which appellant had access, and that appellant had signed tax returns listing dividend income from the account.† The district court rejected appellantís claims that he did not know of the existence of the account until October 1998 and that he had never seen or opened a Merrill Lynch statement as ďlack[ing] credibility.Ē† Although appellant argues on appeal that the record contains no evidence to support the finding that the initial deposit into the account included funds from stocks he held, he does not squarely contradict the courtís other findings.† Because these findings are supported by the record and because we defer to the district courtís credibility determinations, we conclude that the district courtís finding that appellant was aware of the Merrill Lynch account was not clearly erroneous.

c.†††††††† Respondentís checking account

Appellant contends the district court erred in finding that he was aware of the $7,500 balance in his wifeís checking account.† The district court based that determination on undisputed findings that each of the parties had a checking account the other was aware of, and that the parties often transferred funds between the accounts.† Appellant conceded in the district court that he knew of the account, but contended he had been led to believe it held an insignificant amount of money.† Because appellant offered no evidence in support of this contention beyond his own testimony, we conclude the district court rested its conclusion on a credibility assessment and decline to disturb that conclusion on appeal.†

3.†††††††† Conduct of respondentís counsel

††††††††††† Appellant argues he is entitled to a reopening of the judgment because respondentís attorney led him to believe it was unnecessary for him to retain separate legal representation in the dissolution.† This courtís remand instructions required the district court to hold an evidentiary hearing at which ďthe court should apply the ordinary-fraud standard * * *; make findings on disputed issues of material fact * * *; and, if grounds to reopen the judgment are shown, make a just and equitable division of the marital property.Ē† This instruction makes clear that the only claim at issue on remand was appellantís allegation of fraud.† Because appellant makes no claim in this appeal that his failure to obtain counsel stemmed from fraudulent conduct on the part of respondent, and because a district courtís duty on remand is ďto execute the mandate of [the remanding court] strictly according to its terms,Ē Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn.1982), the issue of attorney misconduct lies outside the scope of the remand and, therefore, outside the scope of this appeal.

††††††††††† Affirmed.

 



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