This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Anne Elizabeth Dailey, petitioner,





Tony Christopher Chermak,



Filed April 24, 2007


Kalitowski, Judge


Hennepin County District Court

File No. FA27 279698


M. Sue Wilson, Amy Yanik Meisel, M. Sue Wilson Law Offices, P.A., Two Carlson Parkway, Suite 150, Minneapolis, MN 55447 (for respondent)


Michael L. Perlman, Perlman Law Office, Woodside Office Park, 10520 Wayzata Boulevard, Minnetonka, MN 55305 (for appellant)


            Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Tony Christopher Chermak challenges the district court’s decisions that respondent Anne Elizabeth Dailey (1) did not defraud the court in her request to move their minor child out of state; and (2) was entitled to an award of attorney fees.  We affirm.


            Appellant Tony Christopher Chermak married respondent in 2001.  Their one-year marriage produced one child over whom the parties disputed custody during the marital dissolution.  Although respondent was granted sole physical custody of the child, appellant received reasonable parenting time.

            After approximately one year, respondent requested court permission to relocate to Mitchell, South Dakota, approximately a five-hour drive from the Twin Cities.  She provided reasons for the move including her inability to find sufficient and appropriate work in the Twin Cities; her inability to work a full, regular workweek due to the parenting plan; receipt of a job offer in South Dakota; an abundance of family ties and support network in South Dakota; and lower cost of living in South Dakota.  Respondent provided a job-offer letter from RK Oil, Inc., and claimed that the proposed job offered “a flexible schedule of working in the office three days per week and having flex time two days per week.”  She further assured the district court that the job with RK Oil would provide her with “a steady and increased flow of income.” 

            The district court granted the motion to remove the child’s residence from Minnesota.  Appellant challenged the decision and this court affirmed the district court.  See Dailey v. Chermak, 709 N.W.2d 626 (Minn. App. 2006), review denied (Minn. May 16, 2006).

            In December 2005, while his appeal was pending, appellant submitted a motion to reopen the district court’s order allowing respondent and the child to move to South Dakota, claiming that respondent had knowingly provided false reasons for her move and therefore had perpetrated a fraud on the court.  In support, appellant provided affidavits from two private investigators who reported that respondent spent time at her house, her parents’ house, and her brother’s house, but never went to RK Oil.   

            In response, respondent provided a letter from RK Oil stating that respondent had been a consultant for the company and detailed the work she performed.  The letter stated that business decisions resulted in less-than-expected amount of work for respondent and, by mid-August, the company “no longer needed her services.”  Respondent emphasized the parts of her affidavit in support of removal regarding maintaining her small interior design company and her social and family network in the Mitchell area.  She acknowledged that the arrangement with RK Oil only lasted six weeks.  Respondent countered appellant’s private investigators’ affidavits by explaining that she worked from home much of the time and that because the investigators began periodically observing her on August 8 and she terminated employment on August 15, the investigators could have easily missed observing her at RK Oil. 

            The district court determined that respondent had not defrauded the court, and granted respondent a part of her requested conduct-based attorney fees. 


            Appellant argues that the district court abused its discretion by declining to reopen the judgment on the ground that respondent committed fraud on the court.  The district court’s finding that respondent did not commit fraud on the court is reviewed for clear error and its decision whether to reopen the judgment based on this finding is reviewed for an abuse of discretion.  Minn. R. Civ. P. 52.01; Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998). 

            A dissolution judgment is generally final after the time to appeal has expired.  Minn. Stat. § 518.145 (2006).  But Minn. Stat. § 518.145, subd. 2 (2006), provides relief from the judgment in the case of fraud.   Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997) (“The sole relief from the judgment and decree lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2.”).  In the marital dissolution context, “fraud on the court must be an intentional course of material misrepresentation or non-disclosure, having the result of misleading the court and opposing counsel and making the [judgment] grossly unfair.”  Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989).

            Appellant relies on respondent’s short term of employment and inconsistencies in wording in the two letters from RK Oil to prove that respondent intentionally misled the court at the time she requested removal.  But the district court found that, “While [appellant] has shown that [respondent’s] situation has changed since the court allowed her to relocate, he has not shown that she was dishonest with the court at any time.”  The district court further reasoned that, “It is also clear that [respondent] initially did everything that she represented to the court . . . .  Stated differently, [respondent’s] mere change of situation does not lead to the conclusion that a fraud was committed upon the court.” 

            As the district court stated, respondent initially did everything she told the district court she would:  she moved to South Dakota close to her family, worked for RK Oil, and benefited from a lower cost-of-living and increased social network.  The district court addressed and rejected appellant’s concerns regarding the short duration of respondent’s employment at RK Oil and the inconsistent references to respondent as an “employee” and a “consultant.”  We conclude that the district court did not clearly err by finding that respondent had not committed fraud on the court and that the court did not abuse its discretion by refusing to reopen the judgment. 


            Appellant argues that the district court erred by awarding respondent conduct-based attorney fees.  Conduct-based attorney fees may be awarded in the court’s discretion.  Minn. Stat. § 518.14, subd. 1 (2006).  Such a discretionary award will not be disturbed absent an abuse of that discretion.  Sharp v. Bilbro, 614 N.W.2d 260, 264 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  The district court must make findings regarding the basis for conduct-based attorney fees “to permit meaningful appellate review.”  Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992).  It must identify the offending conduct, the conduct must have occurred during the proceedings, and the conduct must be found to have unreasonably contributed to the length or expense of the proceeding.  Minn. Stat. § 518.14, subd. 1; Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001).  A showing of bad faith is not necessary to support an award of conduct-based attorney fees.  Id. at 818.

            Here, the district court found that:

·         [Appellant] failed to comply with rule 303.03(b) as detailed in the court’s order of January 20, 2006.


·         There was an insufficient factual and legal basis for [appellant] to even bring a motion alleging fraud upon the court.

·         [Appellant] sought a modification of custody in violation of Minnesota Statute 518.18(b) within 7 months of a previous motion for change in custody.

·         At the first hearing on the contempt motion, [appellant’s] attorney did not produce a medical insurance card until his rebuttal remarks to the court, well after both his own response to the motion to show cause and well after [respondent’s] attorney’s response.  At no time prior to the hearing did [appellant’s] attorney inform the court or opposing counsel that he was in possession of the medical insurance card which was the subject of the contempt motion.  Had [appellant’s] attorney revealed that he was able to provide the medical insurance card, a significant portion of the debate during the hearing could have been avoided.

·         [Appellant] intentionally failed to personally appear at the second contempt hearing scheduled for February 15, 2006.  The first hearing had been continued by the court as a courtesy to [appellant] because he had business travel obligations.  The [appellant] did file an affidavit for that second hearing and therefore “appeared”.  His attorney also appeared on his behalf.  However, no action was possible on the contempt motion because of [appellant’s] failure to personally appear as ordered by the court.  [Appellant’s] counsel did not advise either the court or opposing counsel that he had advised his client not to appear.  The Court and opposing counsel first learned that [appellant] did not intend to appear at the hearing itself, thereby making the hearing unnecessary and incurring additional attorney’s fees for [respondent].

·         [Appellant’s] attorney agreed in open court to assist opposing counsel in insuring that his client was properly served with motion papers for the third contempt hearing.  However, such cooperation was not actually given and [respondent] had to expend considerable effort just to insure that [appellant] appeared for the third contempt hearing.  A process server was sent to [appellant’s] attorney’s office for the specific purpose of effectuating service but [appellant’s] attorney refused to allow such service and sent the process server away.  It further appears that this refusal to cooperate was improperly related to another case involving the parties’ attorneys.

·         The court agrees with [respondent] that [appellant’s] motion for amended findings was legally and factually defective because it failed to point out anything that had not already been argued to the court at the prior motion hearing.

·         The [appellant] necessitated this contempt motion by failing to compensate the parenting consultant without good cause.  The real basis for this failure was [appellant’s] desire to remove the parenting consultant because he disagreed with her decisions.  His allegations of gender bias are not supported in the record.

            The district court further stated that although it found conduct by both parties that contributed to the length and expense of the proceeding, it attributed most of the delay to appellant.  And although respondent requested more than $27,000 in conduct-based attorney fees, the district court awarded her $10,000.  We conclude that the record supports the district court’s findings and that the findings are sufficient to support an award of conduct-based attorney fees.  We thus conclude that the district court did not abuse its discretion.