This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







In re the Marriage of:


Lytona Marie Kirtz, petitioner,





Edgar Darrell Kirtz,



Filed May 30, 2006

Affirmed; motion denied

Hudson, Judge


Goodhue County District Court

File No. FX-03-2086


Barbara A. Swisher, Patterson, Ostrem & Swisher, 7 Fourth Street Southeast, Rochester, Minnesota 55904 (for respondent)


Kent D. Laugen, 306 West Avenue, Red Wing, Minnesota 55066 (for appellant)


            Considered and decided by Hudson, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal from the district court’s decision to reopen a stipulated dissolution judgment, appellant-husband argues that (a) the record does not support a finding that mistake or fraud occurred, nor were the district court’s findings regarding mistake or fraud specific enough to support reopening the judgment; and (b) the district court’s redistribution of property was not equitable.  Because the record supports both the district court’s findings and its property redistribution, we affirm.


            The parties were divorced by stipulated judgment and decree filed July 6, 2004.  Both parties were represented by counsel.  Counsel assisted the parties in negotiating an agreement, and the parties indicated on the record that they understood the agreement and considered it fair and equitable.  As part of the agreed property distribution, wife was awarded $18,000 from husband’s savings-plan account and one-half of the gross monthly payments from husband’s pension, which at the time of the decree was $922.10.  Both parties permanently waived spousal maintenance.

            About three months later, the qualified-domestic-relations-order (“QDRO”) administrator at husband’s job informed wife that, effective April 1, 2006, husband’s pension would be reduced by $796.10 per month due to “social-security leveling,” an option husband elected in 1991 when he retired.  This leveling would reduce wife’s monthly payment from $992.10 to $524.05, less than two years after entry of the decree.

In November 2004, wife moved to reopen the decree under Minn. Stat. § 518.145, subd. 2(1), (3) (2004), claiming mistake, inadvertence, or fraud as a result of husband’s failure to disclose the actual value of his pension.  It is undisputed that the motion was brought within a reasonable time and less than one year after entry of the decree.

            In its January 2005 order partially reopening the decree, the district court found that:

The decree’s wording on its face indicates that the parties did not anticipate a dramatic decrease in the monthly pension amount in the near future.  The decree references what may happen “should” the pension increase or decrease in the future, in the midst of a detailed explanation of the tax consequences if a QDRO cannot be implemented.  As indicated to the Court on the record, the parties were concentrating on the possibility that a QDRO may not be possible as [husband] was already receiving pension distributions.  Neither party indicated any knowledge that the pension amount was soon about to change.


The district court concluded that “[e]ither both parties mistakenly or inadvertently considered the value of the pension or [husband] intentionally failed to disclose the known value of the pension. . . . The Court finds clear and convincing evidence that either a mistake or inadvertence was made, or fraud occur[r]ed.”  The district court reopened the decree for the sole purpose of reconsidering the property distribution and specifically to compensate wife for the lesser value of the pension.

            When the parties were unable to reach agreement on the redistribution, the district court received evidence from the parties and redistributed the property.  The district court awarded wife an additional $20,000 from husband’s savings-plan account and, effective at the time of the social-security leveling, ordered that wife receive the monthly gross amount of $748 from husband’s pension benefit, with husband being awarded the remainder.  This appeal by husband follows.




            Appellant-husband argues that the district court’s finding of “either fraud or mistake” as a basis for reopening the stipulated dissolution decree under Minn. Stat. § 518.145 (2004) was clearly erroneous.

            A district court may reopen a judgment and decree and order a new trial or grant other relief as may be just due to “mistake, inadvertence,” or “fraud, whether denominated intrinsic or extrinsic.”  Minn. Stat. § 518.145, subd. 2(1), (3).  Reopening under these circumstances is allowed only when the motion is “made within a reasonable time, and for a reason [allowed by statute], not more than one year after the judgment and decree, order, or proceeding was entered or taken.”  Minn. Stat. § 518.145, subd. 2.  Whether to reopen a decree under subdivision 2 is within the district court’s discretion.  Clark v. Clark, 642 N.W.2d 459, 465 (Minn. App. 2002).  On appeal, the district court’s decision to reopen a judgment will be upheld unless the district court abused its discretion.  Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998).  The district court’s finding as to whether the judgment was prompted by mistake, inadvertence, or fraud will not be set aside unless clearly erroneous.  Id.  “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).

A.         Mistake

            Husband argues that because the district court in its January 2005 order found that either mistake or fraud occurred, its findings lacked the necessary specificity to warrant reopening the decree.  First, husband argues that any inference of mistake is negated because both parties were represented by counsel who engaged in extensive negotiation.  See Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996) (affirming district court’s refusal to vacate a decree, finding no indication that wife was induced to enter a stipulation by mistake or fraud; representation by counsel and extensive negotiations were factors supporting that decision); Hestekin, 587 N.W.2d at 310 (affirming district court’s refusal to vacate a decree when one party was not represented by counsel, stating that “good stipulation practice can support affirming a trial court’s exercise of its discretion to refuse to vacate a judgment”). 

Kornberg and Hestekin are both distinguishable.  Here, the decree stated that husband would pay wife one-half of the gross monthly payments from husband’s pension ($922.10) “or whatever the gross monthly amount may be should it either increase or decrease in the future.”  The use of the word “should” and the location of this stipulation in the midst of a detailed explanation of the tax consequences if a QDRO could not be implemented provided the district court with a sound basis for its finding that “[n]either party indicated any knowledge that the pension amount was soon about to change.”  In addition, the record includes an affidavit from wife indicating that “[m]uch of our settlement negotiations centered around the fact that I would receive that pension income of $922.10 for many years or at least until I began receiving my own social security at age 65.”  Wife indicates it was her reliance on this award of monthly income that convinced her to waive spousal maintenance.  The monthly pension decrease to wife of over $400 in fact was to occur within two years after the decree.  Additionally, upon discovery of the scheduled pension decrease, wife’s motion to reopen was timely filed.  The district court did not clearly err in finding a material mistake of fact that warranted reopening the judgment.

B.         Inadvertence

The plain meaning of inadvertence is “[a]n accidental oversight; a result of carelessness.”  Black’s Law Dictionary 762 (7th ed. 1999).  While the Minnesota Supreme Court has indicated that mere inadvertence of a party is not a sufficient ground to require the reopening of a case to receive new evidence, King v. Larsen, 306 Minn. 546, 546–47, 235 N.W.2d 620, 621 (1975), the court has not said that a district court cannot rely on a finding of inadvertence of a party as sufficient grounds to exercise its discretion to reopen a case. 

Dissolution case law is clear regarding a party’s duty of disclosure:

[I]t is not necessary in a marital-dissolution context to show that the adverse party intentionally failed to disclose all of the marital assets.  Because the confidential relationship between the parties creates an affirmative duty to disclose, nondisclosure is sufficient to establish a breach of that duty, without evidence of intent.  Further, because the duty to make a full and fair disclosure is an affirmative duty, there is no requirement that the moving party show that he requested the information that was not disclosed; the duty to disclose exists in the absence of such a request.


Doering v. Doering, 629 N.W.2d 124, 131 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001) (emphasis in original).  Doering continues, noting, “[o]f course, a party to a marital dissolution could theoretically waive all rights to receive full disclosure from the adverse party.”  Id., 629 N.W.2d at 131.  Here, there is no allegation or finding that wife waived her right to receive full disclosure of any marital assets held in husband’s name.  Thus, husband’s argument that wife could have sought the information must fail.  Even if husband’s failure to disclose was unintentional, because he did not disclose a material fact that he had a duty to disclose, the district court did not clearly err in finding that husband’s failure to disclose the pension information was arguably an inadvertence that would support the reopening of the decree.

Given the pending, significant decrease in the value of husband’s pension, and the fact that this decrease was not discussed in the parties’ negotiations or included in the original decree, the district court did not abuse its discretion in determining that it was fair and just to reopen the decree to consider the impact of this omission (whether by mistake, inadvertence, or fraud) on the fairness of the property distribution.



            Husband argues that the redistribution of the property was an abuse of the district court’s discretion because the redistribution was not fair and equitable.

“District courts have broad discretion over the division of marital property and appellate courts will not alter a district court’s property division absent a clear abuse of discretion or an erroneous application of the law.”  Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn. App. 2005) (citation omitted).  This discretion applies to pension divisions.  Faus v. Faus, 319 N.W.2d 408, 413 (Minn. 1982).  That a record might support findings other than those made by the district court does not show that the court’s findings are defective.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  To successfully challenge a district court’s findings of fact, the party challenging the findings “must show that despite viewing the evidence in the light most favorable to the trial court’s findings . . . the record still requires the definite and firm conviction that a mistake was made.”  Id.

            Husband first alleges that although the district court denied the reopening of the matter of spousal maintenance, the consequence of the property redistribution was essentially an award of spousal maintenance.  We decline to address this allegation because it is unsupported by any legal analysis.  See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address argument unsupported by legal analysis or citation).

            Next, husband argues that the district court never made a finding of how, or if, the original property division was unfair in light of the pension reduction.  Although appellant provides no legal basis for this argument, the district court’s findings in the amended judgment are scant.  But many of the findings from the January 2005 order support the later amendment.  Further, the heart of a property distribution is the district court’s attempt to reach a fair and equitable result.  See Minn. Stat. 518.58, subd. 1 (2004) (stating that “the court shall make a just and equitable division of the marital property of the parties . . . after making findings regarding the division of the property”).

Both husband and wife agreed that the terms of the original agreement were fair and equitable.  Originally, each party was to receive 50% of the monthly $1,844.20 pension distribution.  This amounted to $922.10 per month each.  The district court determined that the upcoming social-security leveling would significantly reduce the value of the pension and thus was a material alteration to the terms of the original agreement.  Specifically, in April 2006, the social-security leveling would result in a pension reduction of $796.10.  Based on the original agreement, this reduction would be split in half resulting in each party receiving a $398.05 reduction in monthly income.  Husband, however, would incur an overall net increase in monthly income, because now his social-security income of $796.10 would be added to his new pension remainder of $524.05 for a total net of $1,320.15 per month.  On the other hand, until wife turned 65 and began collecting her own social-security income, she would be receiving only 50% of the new pension amount, for a total of $524.05 per month.  Wife would essentially lose $400 per month while husband would gain $400 in monthly income.

The district court gave the parties an opportunity to restore balance to the agreement themselves.  Husband argued that no redistribution should occur.  When the parties could not reach agreement on redistribution, the district court fashioned an award that it felt was fair and equitable given the facts and circumstances.  Notably, the district court’s award was less than wife requested and more than husband suggested.

First, the district court redistributed the pension as of the April 1, 2006 reduction so that wife would receive $748.00 per month and husband would receive the remainder.  This results in wife receiving a $174.10 monthly reduction instead of a $400 monthly reduction in the pension distribution.  Husband receives his full monthly social-security income of $796.10 plus the remainder $300.10 of his pension income for a total of $1,096.20.  Husband has an increase of $174.10 in monthly income.  The district court made up for the remaining imbalance by awarding wife an additional $20,000 cash distribution from husband’s savings-plan account.  It is not clear from the district court findings or the order how the court arrived at the additional $20,000 distribution to wife.  Intuitively, it appears that the additional distribution is intended to offset the $174.10 per month decrease in wife’s income.  Dividing $20,000 by the monthly decrease results in nine and one-half years worth of offset, sufficiently supplementing wife’s income until she begins collecting her social-security benefits at age 65.  Although it would have been preferable for the district court to explain its calculations, the redistribution is not an abuse of the district court’s discretion to redistribute the marital property equally.


            Respondent moved for an award of attorney fees on appeal, asserting only that “the appeal is without merit.”  But respondent’s motion cites no substantive basis for an award.  Moreover, respondent provides no legal support or analysis for her accusation that the appeal was brought in bad faith or how that translates into an award of attorney fees.  Respondent’s motion is therefore denied.

            Affirmed; motion denied.