This opinion will be unpublished and

may not be cited except as provided by

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







In re the Marriage of:

Eileen Gail Jensen, petitioner,





Michael Harold Jensen,



Filed July 10, 2007


Willis, Judge


Dakota County District Court

File No. F5-04-15261


Jonathan J. Fogel, Zachary A. Kretchmer, Fogel Law Offices, P.A., 5402 Parkdale Drive, Suite 203, Minneapolis, MN  55416 (for appellant)


Stephen W. Walburg, Jaspers, Moriarty & Walburg, P.A., 206 Scott Street, Shakopee, MN  55379 (for respondent)


            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.*


U N P U B L I S H E D   O P I N I O N


On appeal from the district court’s order denying appellant-wife’s motion to reopen a stipulated dissolution judgment, wife argues that respondent-husband’s failure to make a full disclosure of financial information makes the stipulated judgment defective.  Because the district court did not clearly err by finding that the record did not establish that it is more likely than not that husband failed to disclose assets, and because wife failed to show the existence of newly discovered evidence to justify reopening the judgment, we affirm.



            In August 2005, the district court dissolved the 31-year-long marriage of appellant Eileen Jensen (wife) and respondent Michael Jensen (husband) after the parties signed a marital-termination agreement (MTA).  The parties both have adult children from previous marriages.  Husband has a work history as a lumber broker; wife worked at a K-Mart distribution center for about nine years.  At various times, the parties also operated an antiques business, a sales company, and an auction business.  The parties retired after the auction business was sold in 2001.  They separated in September 2004.

            In a November 2004 order for temporary relief, the district court directed the parties to comply with previously served discovery requests and to sign releases for the disclosure of information on all assets, including investment, retirement, and bank accounts.  The parties stipulated to a valuation date of April 1, 2005, and both parties filed prehearing statements, which listed investment, retirement, and bank  accounts. 

            In July 2005, the parties signed the MTA.  Before signing the MTA, both parties testified that they understood the proposed division of assets and that the division was binding.  The MTA listed as marital assets the following investments:  husband’s Ameritrade IRA ($296,204); husband’s Morgan Stanley IRA ($43,284); wife’s Ameritrade IRA ($50,090); a treasury note and an Ameritrade Roth IRA (already divided); husband’s Wells Fargo account ($4,000); and a joint Wells Fargo account ($1,600).  The district court  issued a dissolution judgment incorporating the terms of the MTA. 

            Eight months later, wife moved to reopen the judgment, alleging (1)  “fraud upon the court” because husband failed to disclose marital assets under his name or control; and (2) newly discovered evidence of previously undisclosed investment accounts.  Wife also requested further discovery and attorney fees.  After a hearing, the district court denied the motion, determining that “[b]ased on the submissions made . . . , this Court cannot conclude that it is more likely than not that Respondent failed or refused to disclose assets.”  This appeal follows. 


            A decision whether to reopen a dissolution judgment is subject to review for an abuse of discretion.  Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996).  An appellate court will affirm the district court’s factual findings “on the questions of whether or not the judgment was prompted by fraud, duress or mistake” unless the findings are clearly erroneous.  Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998).            

            When a judgment is entered based on a stipulation, “the stipulation is merged into the judgment and . . . cannot thereafter be the target of attack by a party seeking relief from the judgment.”  Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997).  The sole basis for relief from a dissolution judgment is meeting the requirements of Minn. Stat. § 518.145, subd. 2 (2006).  Id.  Under that section, a party may move to reopen a judgment on the ground of either ordinary fraud or fraud on the court.  See Minn. Stat. § 518.145, subd. 2(3) (fraud); id., subd. 2 (noting that statutory provision relating to ordinary fraud does not limit power of the court  “to set aside a judgment for fraud upon the court”).

Wife argues that the district court abused its discretion by denying her motion to reopen the judgment on the ground of “fraud on the court.”  To prove fraud on the court, a party must show “an intentional course of material misrepresentation or non-disclosure, having the result of misleading the court and [the] opposing [party] and making the property settlement grossly unfair.”  Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989).  By contrast, ordinary fraud in the context of a dissolution does not require intentional misrepresentation or nondisclosure; rather, “failure of a party . . . to make a full and complete disclosure constitutes sufficient reason to reopen the dissolution judgment.”  Doering v. Doering, 629 N.W.2d 124, 129 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001).  Evidence of intent to defraud is unnecessary to prove ordinary fraud because the parties’ confidential relationship creates an affirmative duty to disclose assets.  Id. at 131.     

            The district court found that husband did not “fail[] or refuse[] to disclose assets.”  Therefore, it appears that the court determined that the record did not provide sufficient evidence to reopen the judgment under either fraud standard. 

            Wife argues that husband, who controlled the parties’ financial matters, failed to disclose some of the parties’ investment accounts, which were consequently not included in the MTA or the judgment.  In an affidavit, wife cites several accounts that she believes husband failed to disclose.  But she has failed to rebut husband’s assertion that some of these accounts, namely, a Charles Schwab account, a Morgan Stanley non-IRA account, and an auction-business account, were closed during the marriage, with the proceeds rolled over into other accounts from which the parties drew money during their retirement.  And two other accounts that wife asserts were not disclosed—the parties’ joint Ameritrade account and a Wells Fargo brokerage account—were listed on wife’s pretrial statement, which shows that she knew of those accounts when she signed the MTA.   

            Further, husband rebuts wife’s claim that he made undisclosed expenditures,  alleging that the proceeds of three checks, which totaled $80,652, were used, respectively, to purchase wife’s car and for two loans to wife’s daughter.  The district court apparently found  credible husband’s explanations for these expenditures, as well as his explanations for the accounts that wife claims were undisclosed.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that appellate court defers to district court’s opportunity to assess witness credibility).  Thus, the district court did not clearly err by finding that the record did not support a determination that it was “more likely than not that [husband] failed or refused to disclose assets.” 

            Additionally, because wife has failed to provide evidence of additional assets that could not have been discovered in time to move for a new trial, wife cannot meet the standard for reopening the judgment on the ground of newly discovered evidence.  See  Minn. Stat. § 518.145, subd. 2(2) (defining newly discovered evidence as evidence that “by due diligence could not have been discovered in time to move for a new trial”).   

            Wife alleges that during the marriage, husband had a history of “hiding” money and that he would “have [her] sign papers all the time and . . . would not tell [her] what [she] was signing.”  The record shows that wife, stating that she had a “fragile mental status,”  executed a power of attorney authorizing her daughter and son-in-law to act on her behalf during the dissolution.  But wife does not allege duress or incapacity, and she signed the MTA after testifying that she understood the agreement and that it could not be modified.  The fact that husband controlled the parties’ finances during the marriage does not support a determination that he failed to disclose assets to her or to the court during the dissolution.  The district court did not abuse its discretion by declining to reopen the judgment, and we affirm.   



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.