This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
In re the Marriage of:
Essam El-Dean Hassan Ahmed, petitioner,
Eman Bakry Haroun,
Filed July 31, 2007
Affirmed as modified
Dakota County District Court
File No. FX-05-14164
Laurie A. Mack, Lymari J. Santana, Mack & Santana Law Offices, P.C., 1700 U.S. Bank Plaza South, 220 South Sixth Street, Minneapolis, MN 55402 (for appellant)
Andrew V. Moran, Andrew V. Moran Law Firm, P.A., 12400 Portland Avenue South, Suite 180, Burnsville, MN 55337 (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
After the district court denied Essam El-Dean Hassan Ahmed’s motion for a fourth continuance, he agreed to settle his marital-dissolution proceeding through an oral stipulation. Ahmed subsequently moved to vacate the stipulation, and the district court denied the motion. We conclude that the district court did not abuse its discretion by denying both the motion for a continuance and the motion to vacate. Because the written order improperly added new terms to the stipulation, however, we affirm as modified.
F A C T S
El-Dean Hassan Ahmed was born in
initiated a marital-dissolution proceeding in 2005. He filed a number of affidavits accusing Haroun
of sympathizing with terrorists and engaging in anti-Jewish activity. The district court issued a temporary relief
order granting Ahmed sole physical custody of the couple’s three young
children. The district court noted that
because of Ahmed’s claims about Haroun’s “conduct in practicing her Muslim
religion, this Court has grave concern that she would not be an appropriate
parent or role model for the children.”
The district court, among other factors, based its decision on Haroun’s
failure to seek
At the same time, the district court appointed a custody evaluator. The court ordered Ahmed to pay the evaluator’s retainer, and ordered Haroun to reimburse Ahmed for half the total cost of the evaluator at the completion of the action. Because Ahmed failed to pay, the custody evaluation was delayed by five months, and the district court twice continued the case. After conducting a number of interviews, the custody evaluator recommended that the parents share joint physical custody of the children.
On May 4, 2006, Ahmed and Haroun appeared for trial and entered into negotiations. After two days of negotiations, Ahmed refused to agree to a settlement. Because of scheduling issues, the district court granted another continuance. The district court also modified the temporary-relief order to give Haroun joint physical custody.
About two weeks before the rescheduled trial date, Ahmed’s attorney withdrew from the case. The district court denied Ahmed’s request for a fourth continuance that would allow him to obtain new counsel. Ahmed appeared for trial pro se, and, after negotiations, the case was resolved through an oral stipulation.
The oral stipulation was recited on the record, and Ahmed and Haroun each confirmed the terms. At the court’s direction, Haroun’s attorney submitted a proposed order. Ahmed objected and argued that it misrepresented the stipulation. In addition, Ahmed argued that the stipulation should be vacated because he was not represented by counsel, he acted under duress, and the parties failed to reach an agreement about material terms. Haroun then submitted a modified proposal that responded to some, but not all, of Ahmed’s objections. The district court accepted the proposal and entered judgment. Ahmed now appeals.
D E C I S I O N
district court should liberally grant a continuance to allow a reasonable
opportunity to prepare a case. Rice v. Perl,320 N.W.2d 407, 412 (
a civil proceeding, a lawyer may withdraw from the case after notifying the
court and the other parties. Minn. R.
Gen. Pract. 105. The withdrawal “does
not create any right to continuance of any scheduled trial or hearing.”
We conclude that the circumstances in this case justified the court’s decision to deny a fourth continuance. As a result of Ahmed’s previous actions, the district court had already granted three continuances. Two of the continuances were the result of Ahmed’s failure to pay the custody evaluator. Although the record does not indicate why Ahmed’s counsel withdrew, the district court could nonetheless conclude that Ahmed’s failure to obtain counsel for the trial was part of a larger pattern of delay. In addition, we note that Ahmed has not alleged that he was unable to afford legal counsel. Although Ahmed unquestionably had a strong interest in being represented by counsel, the district court could, under the circumstances, conclude that Ahmed’s interest was outweighed by the need to avoid further delays. Therefore, we cannot conclude that the district court abused its discretion.
To expedite litigation and resolve acrimonious
reviewing a district court’s decision on whether to vacate a stipulation in a
marital-dissolution proceeding, we have relied on considerations referred to as
“Tomscak factors.” Tomscak
v. Tomscak, 352 N.W.2d 464, 466 (
scope of the Tomscak factors was
narrowed by a legislative amendment to Minn. Stat. § 518.145. See
Haefele v. Haefele, 621 N.W.2d 758, 761-62 (Minn. App. 2001) (discussing
legislative limitation on permissible grounds for vacating stipulation-based
dissolution judgments), review denied
The Shirk decision addressed the standard that applies when a motion to vacate a stipulation is made after judgment is entered. Shirk does not address what standard should be applied when—as in this case—a motion to vacate the stipulation is made before judgment is entered.
conclude that a similar standard should be applied when the motion to vacate is
made before judgment is entered. In Tomscak, the district court denied a
request to vacate a marital-property stipulation. 352 N.W.2d at 465. We noted that stipulations may be vacated for
fraud, duress, or mistake.
elements continue to be pivotal considerations in determining whether to grant
or deny a motion to vacate a stipulation before judgment is entered. Relying on factors that test the existence of
fraud, duress, or mutual mistake is consistent with the contract theory of
stipulations noted in Shirk. 561 N.W.2d at 521. Consequently, the general standard that
emerges is that, if a dissolution stipulation has been properly formed and
accepted by the parties, courts will generally enforce the stipulation unless a
contract defense would apply by analogy.
The reasons provided for reopening a judgment under section 518.145 are
comparable to common-law contract defenses.
the district court’s decision under this standard, we conclude that it acted
within its discretion when it denied Ahmed’s motion to vacate the
stipulation. Ahmed argues that because
he was not represented, he was forced into agreeing to the stipulation. But Ahmed did not act under duress. Duress is a defense only when the agreement
is coerced through physical force or unlawful threats. Bond v.
Charlson, 374 N.W.2d 423, 428 (
Although Ahmed has established that a Tomscak factor—representation by counsel—was not satisfied, he has not established that the stipulation was the product of fraud, duress, or mutual mistake. Therefore, the district court acted within its discretion when it denied his motion to vacate. Cf. Shirk, 561 N.W.2d at 522 (holding that incompetency of counsel does not constitute basis for reopening marital-dissolution judgment); see also In re Estate of Kinney, 733 N.W.2d 118, 125-26 (Minn. 2007) (concluding that absence of spouse’s opportunity to consult with counsel before signing antenuptial agreement does not make agreement unenforceable under common law).
written order cannot materially alter an oral stipulation and continue to rely
on the stipulation as the evidentiary basis for the order.
district court’s written order improperly included a reservation of maintenance
that was not included in the oral stipulation.
The oral stipulation did not provide for maintenance, and it did not
include a reservation of maintenance.
When maintenance is ordered,
the district court can modify maintenance in the future unless future
modification is waived. Karon v. Karon, 435 N.W.2d 501, 503 (
We hold that where the decree of divorce is silent as to alimony or fails properly to designate alimony as required by statute, the trial court cannot thereafter modify the decree to award alimony since to allow such a practice would be to allow modification of something that never existed. Further, where the decree does not specifically reserve jurisdiction of the issue of alimony for determination at a later date, no such jurisdiction can later be claimed. The trial court in this situation had no jurisdiction to make the order it did.
Because the oral stipulation did not refer to maintenance, the district court does not have the power to order maintenance in the future. But the written order reserves the issue of maintenance. Although the parties apparently discussed maintenance in chambers, the record provides no indication of this discussion. Thus, the written order added a new term that was not included in the oral stipulation.
argues that the stipulation should be vacated because the parties failed to
agree about all material terms. See Ryan v. Ryan, 292
other arguments about the written order have no merit. Although the stipulation does not expressly
waive the child-support guidelines, it does provide for an amount of child
support that may be greater than the amount provided under the guidelines at a
specified income level. The facts are
undisputed that the computation based on Ahmed’s demonstrated income level does
not result in a deviation from the guidelines or a violation of the children’s
best interests. Therefore, the order’s
statement indicating that the child-support guidelines are waived does not
constitute a significant alteration of the stipulation or place into
negotiation the unbargainable interests of the children. Tammen,
The district court did not abuse its discretion when it denied Ahmed’s motion for a fourth continuance and when it refused to vacate the stipulation or place into negotiation the unbargainable interests of the children. Because the written order materially altered the oral stipulation, the judgment below must be modified to remove the reservation of maintenance.
Affirmed as modified.