This opinion will be unpublished and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: Kathleen Ann Foley,






Brian Patrick Foley,




Filed March 23, 2004


Anderson, Judge


 Scott County District Court

File No. 2002-00005


W. Harvey Skees, W. Harvey Skees & Associates, LLC, 10531 166th Street West, Lakeville, MN  55044 (for appellant)


Robert J. Bruno, Robert J. Bruno, Ltd., 1601 East Highway 13, Suite 107, Burnsville, MN  55337 (for respondent)


            Considered and decided by Anderson, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.


U N P U B L I S H E D  O P I N I O N




            Brian Patrick Foley (husband) challenges the district court’s (1) denial of his motion to vacate a 2002 judgment dissolving the union between husband and Kathleen Ann Foley (wife); and (2) award of attorney’s fees to wife. We affirm. 



            After two and a half years of marriage, in December 2001, husband and wife signed a marital termination agreement ending their union.  In January 2002, a judgment dissolving the marriage was issued by the district court.  The judgment, based on the language of the marital termination agreement executed by the parties, awarded the right, title, and interest in the couple’s homestead to husband; the award was subject to a lien in favor of wife in the amount of $150,000.

            Thereafter, the couple reconciled, remarried in November 2002, and began cohabiting in the homestead that was awarded to husband by the judgment.  But the couple separated again in March 2003.  In May 2003, seeking to enforce the judgment from the couple’s first marriage, wife served husband with a petition for dissolution and an application for temporary relief.

            In June 2003, husband moved the district court to vacate the January 2002 judgment.  Wife then moved for enforcement of the judgment, asking the district court to award need-based attorney’s fees.  The district court denied husband’s motion and awarded wife partial attorney’s fees.  This appeal followed.



            Once the district court adopts a marital termination agreement and enters judgment based thereon, the marital termination agreement ceases to exist as a separate entity and a party challenging the marital termination agreement must seek relief from the judgment under Minn. Stat. § 518.145, subd. 2 (2002).  See Shirk v. Shirk, 561 N.W.2d 519, 523 (Minn. 1997).  The district court’s findings of fact will not be set aside unless clearly erroneous, and its determination not to reopen the judgment and decree will not be disturbed absent an abuse of discretion.  Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996).


            Husband argues that the district court abused its discretion by concluding that Minn. Stat. § 518.145, subd. 2(5), does not grant the court the power to provide husband’s requested relief.  But this is not what the district court concluded.  The district court merely stated that “the Minnesota Court of Appeals made it very clear that Subd. 2 is not an intended catchall provision that should be used to vacate any judgment and decree.”  The district court went on to individually examine husband’s arguments for vacation. 

            Minn. Stat. § 518.145, subd. 2, provides that a court may reopen a dissolution judgment on the bases of mistake, newly discovered evidence, fraud, misconduct, that the judgment is void, has been satisfied, released, discharged, or that “it is no longer equitable that the judgment and decree or order should have prospective application.”  Because the district court fairly stated and applied the law, it did not abuse its discretion by refusing to vacate the judgment based on the equitable principles implicit in Minn. Stat. § 518.145, subd. 2.


            Husband argues that the district court abused its discretion by refusing to vacate the judgment based on the fact that husband was intoxicated when he signed the marital termination agreement.  Husband also argues that the district court abused its discretion when it denied husband’s motion to vacate the judgment because husband was not represented by counsel when he signed the agreement.  We disagree with both of appellant’s arguments.

            Because the district court adopted the marital termination agreement and entered judgment based on the agreement, husband must seek relief under Minn. Stat. § 518.145, subd. 2.  See Shirk, 561 N.W.2d at 523.  Husband does not specify which clause of the statute entitles him to relief on either ground, but presumably he relies on the language in the statute that provides vacation of “judgment for fraud upon the court.”  See Blattner v. Blattner, 411 N.W.2d 24, 26 (Minn. App. 1987) (noting that competence bears on fraud on the court), review denied (Minn. Oct. 30, 1987).

            Here, the district court concluded that husband’s alleged intoxication did not entitle him to vacation of the judgment.  In so concluding, the district court rejected husband’s argument that he lacked capacity to enter into the marital termination agreement.  The district court specifically found that husband’s detailed affidavit “demonstrate[d] extensive knowledge of the events of that day.”  Further, the district court concluded that the law does not require that husband must be represented by counsel at the signing of a marital termination agreement; in fact, the express terms of the agreement that husband signed stated that husband waived his right to counsel.

            Because the district court’s findings of fact here are not clearly erroneous, and because its decision not to vacate the judgment and decree did not amount to an abuse of discretion, we will not disturb its decision. 


            Husband argues that the district court abused its discretion by refusing to vacate the judgment on the grounds that it had been satisfied, released, or discharged, per Minn. Stat. § 518.145, subd. 2(5), because after the couple signed the marital termination agreement, they subsequently remarried and began cohabiting in the homestead at issue in the judgment.  We disagree.

            Subdivision 2(5) provides the district court with the authority to vacate a judgment when “the judgment has been satisfied, released, or discharged.”  Minn. Stat. § 518.145, subd. 2(5).  Here, the district court determined that property rights had vested under the terms of the first dissolution; the property distributed under the judgment dissolving the first marriage became individual premarital assets belonging to husband and wife before the parties entered their second marriage.  See Minn. Stat. § 519.02 (2002) (describing the property rights of wife and husband); see also Minn. Stat. § 518.54, subd. 5 (2002) (addressing nonmarital property).  The district court specifically concluded that “there is little doubt that the second marriage did not affect the earlier divorce settlement,” even if wife did not enforce the decree until several months later. 

            The district court’s findings of fact are not clearly erroneous; the decision to refuse to vacate the judgment was not, therefore, an abuse of the district court’s discretion.


            Husband argues that the district court abused its discretion by refusing to vacate the judgment based on an unforeseen change in circumstance rendering inequitable the prospective application of the judgment and decree.  See Minn. Stat. § 518.145, subd. 2(5).  We disagree.

            Husband contends that the subsequent remarriage of the parties, their cohabitation in the home, and now the second dissolution proceeding between wife and husband constitute an unforeseen change of circumstance mandating vacation of the judgment.  In support of this claim, husband cites Harding v. Harding, 620 N.W.2d 920, 923 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).  But Harding held that Minn. Stat. § 518.145, subd. 2(5), “must be employed when injustice in the prospective application of a divorce decree is due to the development of circumstancessubstantially altering the information on a topic that was accepted . . . in a marital-termination agreement.”  620 N.W.2d at 924.  Here, the information relating to the property division of the homestead has not been materially altered.

            Husband argues that the couple’s subsequent reconciliation is an unforeseen change in circumstance.  Although the reconciliation may indeed have been unforeseen, under Harding, “a change in circumstances that is [] merely a new set of circumstances or an unforeseen change of a known circumstance” is not sufficient to justify the application of Minn. Stat. § 518.145, subd. 2(5). Id. at 923.  The district court did not abuse its discretion by refusing to apply Minn. Stat. § 518.145, subd. 2(5), to vacate the judgment on the grounds of unforeseen change in circumstance.


            Husband argues that the district court abused its discretion by awarding wife need-based attorney’s fees while it simultaneously awarded a $150,000 lien judgment in her favor.  We disagree.

            Need-based attorney fee awards “shall” be awarded if the court finds that (1) the fees are needed for a party’s good faith assertion of rights; (2) the payor can pay the fees; and (3) the recipient cannot pay the fees.  Minn. Stat. § 518.14 (2002); Haefele v. Haefele, 621 N.W.2d 758, 767 (Minn. App. 2001), review denied (Minn. Feb. 21, 2001).  This award rests within the discretion of the district court; we will not disturb the award absent a clear abuse of that discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). 

            We do not set aside findings of fact unless they are clearly erroneous.  Minn. R. Civ. P. 52.01; Shepard v. City of St. Paul, 380 N.W.2d 140, 143 (Minn. App. 1985).  Here, the district court found sufficient grounds to grant need-based attorney’s fees. Based on the arguments and documents submitted in this case, the court concluded that (1) husband had the ability to pay, and (2) wife lacked the resources to pay her attorney’s fees. 

            The district court’s findings in the order are terse on the tripartite test for need-based attorney’s fees awards.  The record, however, supports the district court’s determination to award fees.  First, in the application for temporary relief dated May 28, 2003, wife stated that, as a house-cleaner, she grossed only $860.00 a month and that her reasonable monthly expenses exceeded her monthly income.  Second, the May 28, 2003, application reports that husband owns his company and receives a monthly trust allowance and that these amounts exceed his reasonable monthly expenses.  The record therefore supports the district court’s conclusion that wife was eligible to receive a need-based fee award.  The court did not make an explicit finding that the third prong of Minn. Stat. § 518.14, subd. 4, that wife needed the fees for a good faith assertion of rights, was met.  But, we can infer that because husband filed the motion to vacate the prior judgment, wife, in order to assert her rights, needed to respond to the motion.

            Because these findings of fact supporting the award of wife’s attorney’s fees are not clearly erroneous, and because the district court did not clearly abuse its discretion in awarding the fees, we will not disturb the award.