This opinion will be unpublished and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:

Donald L. Fruehling, petitioner,





Rosemary T. Fruehling,



Filed September 7, 2004


Halbrooks, Judge



Hennepin County District Court

File No. DW 135550


Edward L. Winer, James J. Vedder, Moss & Barnett, P.A., 90 South 7th Street, Suite 4800, Minneapolis, MN 55402 (for respondent)


Thomas Bennett Wilson, III, Gayle Gaumer, Wilson Law Firm, 7101 York Avenue South, Suite 374, Edina, MN 55435 (for appellant)



            Considered and decided by Schumacher, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Rosemary T. Fruehling challenges the district court’s denial of her motion to vacate an order concluding that respondent Donald L. Fruehling – her former husband – has no obligation to reinstate spousal health insurance that she previously received through respondent’s former employer.  Appellant also challenges the district court’s award of conduct-based attorney fees to respondent.  We affirm and grant respondent’s motion for attorney fees on appeal.


            The parties’ marriage was dissolved by judgment entered in April 1989.  The sole issue in the current appeal concerns the judgment’s provision stating:

The parties are eligible and may be presently covered for the purposes of group health insurance by . . . McGraw-Hill, where [respondent] is a retired employee . . . and as to such health insurance coverage as the same may exist which is group coverage and to the extent available under federal and state law, the [appellant] shall be entitled to the benefits thereof as a former spouse.


In the event there is a premium charge for a former spouse, [appellant] will be responsible for payment of such premium.


[Appellant] shall cooperate with respondent in dealing with his former and present employers to secure these benefits for [appellant].


In August 1999, respondent contacted McGraw-Hill to request that appellant be dropped from his group medical coverage.  McGraw-Hill implemented the change effective December 31, 1999. 

            In approximately July 2002, at appellant’s request, respondent attempted to reinstate appellant’s McGraw-Hill medical coverage.  McGraw-Hill refused, stating that its “eligibility rules do not allow for the coverage of former spouses” and that “although [McGraw-Hill has] no way to know that a divorce has taken place and, therefore, [has] to rely on employees and retirees to remove their former spouses from their plans, under no circumstance is an employee or retiree permitted to add a former spouse.” 

In September 2002, appellant moved the district court to order respondent to “take all steps necessary and appropriate to reinstate health insurance coverage for [appellant] under [respondent’s] McGraw-Hill employee retirement plan insurance benefits pursuant to [the health-insurance provision of the judgment]” and reimburse appellant for the “retirement plan health insurance benefit premium deductions from retirement benefit payments to [appellant] from January 1, 2000” to the date of the motion. 

            The district court denied appellant’s motion in November 2002, reasoning that because the McGraw-Hill benefit-eligibility rules do not permit former spouses to retain health-insurance benefits, respondent was unable – and had no obligation – to reinstate coverage for appellant.  The court observed that although McGraw-Hill had inadvertently “continued to provide health insurance [to appellant] for a number of years[, it] eventually recognized this error and legitimately discontinued coverage for [appellant].”  In December 2002, appellant filed and withdrew a notice of review challenging the November 2002 order. 

            In a January 2003 letter, a McGraw-Hill benefit-plan manager informed appellant that she had been “properly enrolled” in the company’s coverage plan following the dissolution of the parties’ marriage and that “if [respondent] had not removed you [from coverage in 1999], you would continue to have the medical and dental coverage previously afforded you by his plan through our company,” but added that “this option is not available to you now or at any time in the future.”  The director of McGraw-Hill’s benefits plan subsequently informed respondent that the January letter was “worded poorly” and should not be construed as implying that former spouses are eligible for coverage under the plan.  The director’s letter also stated that although appellant would have remained covered had respondent not requested her removal, that coverage would have been contrary to the company’s “eligibility provisions[, which] did not permit her to remain covered.”  

Appellant filed a motion to vacate the November 2002 order pursuant to Minn. R. Civ. P. 60.02(a), (c), on the grounds that appellant had “wrongfully and in violation of the [judgment] cancelled [appellant’s] medical and dental insurance coverage under his McGraw-Hill Companies retirement program” and misrepresented to the court that she was not entitled to McGraw-Hill medical coverage following the parties’ dissolution.  Appellant also requested that respondent be ordered to reimburse her for medical and dental premiums she had paid since January 2000.

            A referee of the district court denied appellant’s motion, finding that there was no record or legal support for appellant’s contention that respondent was obligated to or capable of reinstating her health insurance.  The district court affirmed the referee’s order.  This appeal follows, with both parties moving this court for attorney fees on appeal. 


We observe first that although appellant’s motion to vacate the November 2002 order claimed as its authority Minn. R. Civ. P. 60.02, the motion should have been brought – and considered by the district court – under Minn. Stat. § 518.145, subd. 2 (2002), the marriage-dissolution equivalent of rule 60.02.  See Maranda v. Maranda, 449 N.W.2d 158, 164 n.1 (Minn. 1989) (observing that motions to vacate dissolution judgments for mistake or misrepresentation of material fact should be brought under Minn. Stat. § 518.145, subd. 2, not under rule 60.02).  But because, for the purposes of this appeal, the statute and the rule set forth substantively identical standards, the district court’s error was harmless.  See Peterson v. Eishen, 512 N.W.2d 338, 341 (Minn. 1994) (observing that cases citing rule 60.02 are used when applying Minn. Stat. § 518.145, subd. 2).

Appellant challenges the district court’s order affirming the referee’s denial of her motion to vacate the November 2002 order.  The recommended findings and orders of a family court referee “are advisory only and possess no more than prima facie validity.”  Berg v. Berg, 309 Minn. 281, 285, 244 N.W.2d 149, 151 (1976).  But we will not disturb a district court’s decision whether or not to reopen a dissolution judgment absent an abuse of discretion.  Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996).  The district court’s findings of fact on the questions of whether or not the judgment was prompted by mistake or misrepresentation will be affirmed unless they are clearly erroneous.  Id

Appellant contends that the district court clearly erred in finding that she failed to establish that the November 2002 order was based upon mistake or misrepresentation.  She further challenges the district court’s finding that “McGraw-Hill’s benefit eligibility rules do not allow for the coverage of former spouses,” contending that “she was properly covered [under the McGraw-Hill plan] until respondent unilaterally terminated her coverage [effective December 31, 1999].” 

Appellant’s argument concerning her eligibility for coverage is based entirely on the January 2003 letter she received from a McGraw-Hill benefits manager stating that had respondent not caused her to be removed from coverage in 1999, she “would continue to have the medical and dental coverage previously afforded [her] by his plan through our company.”  But this statement was explicitly qualified and limited by the October 2003 letter from the director of McGraw-Hill’s benefits plan, who unambiguously stated that former spouses are not eligible for coverage under the company plan.  The district court correctly found that respondent was neither able nor required to continue to provide – or to reinstate – health insurance for appellant after the company learned that the parties were no longer married. 

Appellant also challenges the district court’s finding that respondent complied with the judgment’s requirement that he “cooperate with [appellant] in dealing with his former [employer] to secure these [health insurance] benefits” that “may exist” under the McGraw-Hill plan.  Appellant contends that the term “cooperate” in the judgment required that respondent reinstate coverage under the McGraw-Hill plan.  We disagree.  First, the record evidence is clear that the plan does not cover former spouses.  Second, the judgment requires only that respondent cooperate in securing any health-insurance coverage that “may exist” for appellant under his former employer’s plan.  His act of canceling coverage that no longer exists does not constitute a breach of his obligation to cooperate with her to secure available insurance.  Consequently, respondent has no obligation to reimburse appellant for the costs incurred for her medical and dental insurance after she stopped receiving coverage from McGraw-Hill.   


Appellant argues that the district court abused its discretion in awarding $3,000 in conduct-based attorney fees against her.  Attorney-fee awards rest in the district court’s discretion and normally will not be disturbed absent a clear abuse of that discretion.  Holder v. Holder, 403 N.W.2d 269, 271 (Minn. App. 1987).  Under Minn. Stat. § 518.14, subd. 1 (2002), a court, “in its discretion,” may award “additional fees, costs and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.”

Here, after the November 2002 order was issued denying her request to enforce the judgment, appellant filed and withdrew a notice of review in December 2002; filed a motion to vacate the order in September 2003; and filed a notice of review in November 2003 seeking to reverse the denial of the motion to vacate.  Respondent paid for legal representation in responding to each of these filings, including the withdrawn December 2002 notice of review.  The record demonstrates that the central fact issue raised by appellant in each filing – whether respondent was able or required to continue or reinstate appellant’s health-insurance coverage through McGraw-Hill – was conclusively determined in the negative in the November 2002 order.  The district court did not abuse its discretion in awarding respondent attorney fees.

Each party has moved this court for conduct-based attorney fees for this appeal, which we may award at our discretion upon a finding that a party unreasonably contributed to the length or expense of the proceeding.  Minn. Stat. § 518.14, subd. 1; LaChapelle v. Mitten, 607 N.W.2d 151, 167 (Minn. App. 2000), review denied (Minn. May 16, 2000).  This appeal represents appellant’s third attempt to overturn the district court’s November 2002 order based on an argument – that respondent is obligated to provide her with McGraw-Hill health coverage – that is without support in the law or the record.  We award respondent $4,000 in attorney fees on appeal and deny appellant’s motion for attorney fees.