This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1389

 

In re the Marriage of:

Richard Herbert Zeidler, petitioner,

Appellant,

 

vs.

 

Angela Marie Zeidler,

Respondent.

 

Filed June 15, 2004

Affirmed; motion to strike granted;

motion for attorney’s fees denied

Hudson, Judge

 

Goodhue County District Court

File No. F3-02-1982

 

 

Wright S. Walling, Jessica J.W. Maher, Walling & Berg, P.A., Suite 1100, 121 South Eighth Street, Minneapolis, Minnesota 55402 (for appellant)

 

Lawrence Downing, Lawrence Downing & Associates, 330 Wells Fargo Center, 21 First Avenue Southwest, Rochester, Minnesota 55902 (for respondent)

 

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

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

In this marriage dissolution appeal, appellant argues that the district court abused its discretion by refusing to vacate the judgment entered pursuant to a settlement agreement.  Because the district court did not abuse its discretion by refusing to vacate the judgment, we affirm.  Appellant’s motion to strike certain materials in respondent’s appendix is granted because the materials are outside the record.  Respondent’s request for attorney’s fees is denied because respondent has not made a sufficient showing that would allow an award of attorney’s fees on appeal.

FACTS

Appellant-husband, Richard Herbert Zeidler, and respondent-wife, Angela Marie Zeidler, married on November 1, 1988.  In October 2002, husband initiated these dissolution proceedings. 

On June 11, 2003, the day this matter was set for trial, the parties, both of whom were represented by experienced counsel, engaged in lengthy negotiations and indicated to the district court that a settlement had been reached.  The attorneys read the terms of the settlement into the record and the district court requested that each attorney question his or her client to determine if they understood and agreed to the terms that had just been read into the record.  Husband and wife both acknowledged that: they understood the agreement, they had an opportunity to discuss the agreement with their counsel, and they did not have any further questions.  Each party then requested that the district court adopt the terms and incorporate them into the final judgment and decree.

On June 24, 2003, wife’s attorney sent a proposed judgment and decree to husband’s attorney.  Without responding to wife’s attorney, husband’s attorney drafted a separate proposed judgment and decree and sent it to the district court without providing wife’s attorney, wife, or husband an opportunity to review it.  The district court, believing both counsel had approved the judgment and decree proposed by husband’s attorney, signed the judgment and decree, and it was filed on June 30, 2003. 

Husband asked his attorney why he was not allowed to see the proposed judgment before it was sent to the district court, and she informed him there was no reason for him to see it.  Husband claims his attorney never gave him an opportunity to confirm that the judgment submitted conformed to his understanding of the parties’ agreement. 

Upon learning that the judgment had been entered, wife moved to vacate or amend the judgment, or, in the alternative, grant a new trial.  Husband obtained new counsel, who moved to vacate the judgment, set the matter on for trial, or for other forms of relief.  At the July 25, 2003, hearing on the respective motions, wife did not argue for vacating the judgment; rather, wife sought specific changes necessary to correct the judgment to reflect the original agreement of the parties.  Husband requested that the district court vacate the judgment and set the matter on for trial.  By order dated July 30, 2003, the district court denied husband’s motions and amended the judgment.

Husband filed a notice of appeal.  This court issued an order questioning jurisdiction and directing the parties to submit memoranda on the issue.  On November 4, 2003, this court issued an order concluding that the appeal is construed from the underlying June 30, 2003, judgment, that the July 30, 2003, post-decision order is within this court’s scope of review on appeal, and that the appeal shall proceed.

D E C I S I O N

I

Husband argues that the district court’s decisions to deny his motion to vacate the dissolution judgment and to grant wife’s motion to amend that judgment cannot be reviewed because the district court failed to make adequate findings of fact explaining its decisions.  But the order denying husband’s motion and granting wife’s motion includes a memorandum in which the district court explains the reasoning for its rulings.  The explanation of the district court’s rationale contained in this memorandum is sufficient to allow review of the district court’s decision, particularly when it is combined with the district court’s statements from the bench.  See Minn. R. Civ. P. 52.01 (stating “[i]t will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court or in an accompanying memorandum”). 

II

Husband challenges the district court’s denial of his motion to vacate the dissolution judgment.  Once a judgment is entered on a dissolution stipulation, the stipulation is deemed to have merged into the judgment, and the “sole” method for obtaining relief from the judgment is to satisfy Minn. Stat. § 518.145, subd. 2 (2002).  Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997).  A district court’s decision regarding whether to vacate or re-open a dissolution judgment under Minn. Stat. § 518.145, subd. 2, will not be reversed absent an abuse of discretion.  Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996).  For the reasons stated below, we conclude that, on this record, husband has not shown that the district court abused its discretion by denying his motion to vacate.

Husband argues that the district court abused its discretion by refusing to vacate the judgment because both parties requested the judgment be vacated.  We reject this argument for three reasons.  First, agreement of the parties is not a basis for vacating a dissolution judgment listed in Minn. Stat. § 518.145, subd. 2, which provides the “sole” basis for vacating a dissolution judgment.  Second, the district court is not necessarily bound by a stipulation of the parties.  See Karon v. Karon, 435 N.W.2d 501, 503 (Minn. 1989) (stating district courts may reject the terms of a stipulation “in part or in toto”); Toughill v. Toughill, 609 N.W.2d 634, 638 n.1 (Minn. App. 2000) (same).  Third, the record is clear that, while wife sought to alter the judgment via her motion to vacate or amend to reflect the parties’ stipulation, husband moved to vacate the entire judgment.  Thus, the parties did not agree to vacate the entire judgment as husband argues.

Next, husband argues that the district court breached its independent duty to ensure that the agreement was fair and reasonable and to ensure the parties acted in a knowing, intentional, and voluntary manner.  He also argues that the exchange he had with his attorney regarding the stipulation did not include a discussion of the basis of the agreement, any of the agreement’s terms, the property settlement, or the Karon waivers.  We reject these arguments for three reasons. 

First, alleged errors by a district court in adopting a stipulation are not among the bases for vacating stipulation-based dissolution judgments listed in Minn. Stat. § 518.145, subd. 2.  Second, in putting the parties’ stipulation on the record, husband’s attorney went into considerable detail regarding the terms of the agreement.  Wife’s attorney then clarified some terms recited by husband’s attorney, and the district court questioned counsel about the agreement.  This detailed three-way discussion of the agreement occurred in the courtroom in the presence of the parties and, after the terms of the agreement had been clearly set forth, the district court had each attorney ask their client about the basis of the agreement and whether their respective clients understood and approved the terms of that agreement.  While husband was questioned by his attorney, husband testified that (a) he was present in the courtroom when the agreement was read into the record; (b) he had had adequate time to think about and discuss the agreement with his attorney; (c) he did not have any questions; and (d) he wanted the district court to adopt the agreement.  Thus, not only did the district court have sufficient information to assess the equity of the proposed judgment, but to reject the proposed judgment would have been contrary to husband’s sworn testimony that he did not have questions about the agreement and that the district court should enter a judgment based on that agreement. 

Third, while husband is technically correct in asserting that during the exchange he had with his attorney they did not discuss the basis of the agreement, any of the agreement’s terms, the property settlement, or the Karon waivers, husband’s recitation of these facts takes the exchange between himself and his attorney out of context.  As noted, the exchange between husband and his attorney occurred after the three-way discussion of the terms of the agreement.  With respect to the property division, the district court could reasonably have determined that a property award of $308,000 cash to wife was not unfair or unreasonable to husband where it appears the parties’ marital estate contained about $606,000 in real property alone.  Additionally, the record indicates that the property division was hotly contested and thus that both parties were, in all likelihood, quite cognizant of the ultimate terms of the negotiated settlement on this issue.  Nothing in the record suggests otherwise.  Regarding the Karon waiver, before the parties asked the district court to adopt their agreement, husband’s attorney set out the amount and duration of husband’s maintenance obligation, the fact that wife waived the right to modify maintenance, and that the parties sought a “Karon waiver.”  Wife’s attorney then explained precisely what a Karon waiver was: 

I want to make it clear to both of the parties, that a Karon waiver means that the [Wife] can’t ask for an increase in the amount of spousal maintenance or lengthening the period of time of the spousal maintenance, and the [Husband] cannot ask for a decrease in the amount of the spousal maintenance or a shortening of the period of time of the spousal maintenance.

 

On this record, there is no merit in husband’s claim that he did not knowingly and voluntarily accept the terms of the settlement agreement as it related to the Karon waiver.  In sum, the district court reasonably relied on both attorneys’ description of the agreement and the sworn testimony of their clients that they understood the agreement and wanted a judgment entered thereon.  Therefore, we conclude that the district court did not abuse its discretion by denying husband’s motion to vacate the judgment based on alleged defects in the process the district court used to adopt the stipulation.

Husband also argues that the property award was imposed on him through mistake, inadvertence, surprise, and excusable neglect.  Mistake, inadvertence, surprise, and excusable neglect are bases for vacating a dissolution judgment.  Minn. Stat. § 518.145, subd. 2(1).  But, as noted above, this record shows that husband was (or at least should have been) fully informed regarding the terms of the dissolution stipulation generally, and regarding the property division and the Karon waiver specifically, when he testified under oath that he wanted the district court to adopt the stipulation.  Furthermore, to the extent that husband is claiming the property award was imposed on him through mistake, inadvertence, surprise, and excusable neglect due to what his trial attorney did or did not do, we conclude that the district court did not abuse its discretion by refusing to vacate the judgment given the manner the agreement was put on the record and the explicit statements regarding the Karon waiver.

On this record, husband has not shown that the district court abused its discretion by refusing to vacate the judgment under Minn. Stat. § 518.145, subd. 2, and we affirm the district court’s decision not to do so.

III

            Husband moves to strike certain aspects of wife’s brief, arguing that materials that are included in the appendix to her brief, and which she cites, are outside the record on appeal.  See Minn. R. Civ. App. P. 110.01 (defining record on appeal).  “The court will strike documents included in a party’s brief that are not part of the appellate record.”  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993).  And references in a party’s brief to stricken extra-record material are also stricken.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 543-44 n.7 (Minn. 2001).  Here, because the challenged materials are not in the record on appeal, we grant husband’s motion to strike.

IV

Wife argues she is entitled to indemnity for her attorney fees and costs for this appeal, contending husband’s actions in pursuing this appeal are without merit and that husband has unnecessarily extended the length and expense of the proceedings.  See Minn. Stat. § 518.14, subd. 1 (2002) (allowing need-based and conduct-based attorney fees).  Wife has not made a sufficient showing to allow an award of attorney’s fees on appeal; therefore we deny wife’s request for attorney’s fees.  See Minn. R. Civ. App. P. 139.06, subd. 1 (detailing what is necessary to support a motion for appellate attorney fees). 

            Affirmed; motion to strike granted; motion for attorney’s fees denied.