This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-95-2680

Tina Dell Strandberg,

Appellant,

Ramsey County, Plaintiff,

vs.

Timothy John Haessly,

Respondent.

Filed June 11, 1996

Remanded

Peterson, Judge

Mulally, Judge* (dissenting)

Ramsey County District Court

File No. PF9350673

Sharon Buffington, P.O. Box 51, 275 South 3rd Street, Suite 203, Stillwater, MN 55082; Carla J. Butz, 3300 Edinborough Way, 400 Corporate Center East, Edina, MN 55435 (for Appellant)

Margaret O'Sullivan Kane, 302 Dacotah Building, 370 Selby Avenue, St. Paul, MN 55102 (for Respondent)

Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Mulally, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

In this paternity action, appellant Tina Dell Strandberg argues that the district court erred when it denied her motion to vacate a custody order. We remand.

FACTS

Ramsey County and Strandberg commenced a paternity action alleging that respondent Timothy John Haessly is the father of S.S. In response, Haessly sought joint legal and physical custody of S.S. Haessly admitted paternity and an order adjudicating him to be S.S.'s father was filed. Temporary custody was awarded to Strandberg. The issues of legal and permanent physical custody were referred to family court services for evaluation and preparation of a custody report. The parties apparently tried mediation, but failed to resolve these issues. The parties then agreed that their court-appointed mediator, Charlotte Sitzer, should act as the custody evaluator.

Sitzer's custody report recommended that Haessly be given sole physical custody. After receiving the report, Haessly filed a motion seeking sole legal and physical custody and Strandberg requested an evidentiary hearing. Haessly's motion was denied. Strandberg's motion for an evidentiary hearing was granted.

The parties spent a day and a half before the evidentiary hearing unsuccessfully trying to settle the matter. Before beginning the hearing, the parties met in chambers to discuss Haessly=s motion to exclude Strandberg=s witnesses and other preliminary matters. The court determined that because Strandberg's witness list was untimely served, the listed witnesses could not testify at the hearing and Strandberg's witnesses would be limited to herself and Sitzer. Strandberg then made an offer of proof regarding the excluded witnesses' testimony.

The parties continued negotiating and late the next day entered a custody stipulation, which provided for joint legal and physical custody with S.S.'s primary residence with Haessly. During the summer of 1995, Strandberg would have primary physical custody of S.S. and Haessly would have visitation every other weekend. One week before school started, S.S. would move into Haessly's home and Strandberg then would have visitation every Wednesday evening. Left in dispute were Haessly's weekday evening visitation and Strandberg's right to weekend visitation.

The parties returned to court and said they had reached agreement on issues other than visitation. The parties then made arguments concerning the unresolved visitation issues. The court decided the visitation issues and a custody order that included the parties' stipulation was filed on January 26, 1995.

On April 27, 1995, Strandberg filed a motion to vacate the custody order. Following a hearing on the motion, the district court referred the case to mediation. Following a second hearing, the court denied the motion to vacate.

D E C I S I O N

A parentage action is governed by the rules of civil procedure. Minn. Stat. ' 257.65 (1994). If a custody claim is asserted at the time of the adjudication of paternity,

[c]ompeting claims for custody are resolved by holding an evidentiary hearing and determining custody according to the criteria set out in section 518.17.

Morey v. Peppin, 375 N.W.2d 19, 25 (Minn. 1985). As in any custody proceeding, the best interests of the child are paramount. Id.

I.

Our analysis must first recognize that Strandberg sought vacation of a judgment entered, in part, pursuant to a stipulation.

In such circumstances, this court may treat the trial court's refusal to vacate the judgment as refusal as well to set aside the stipulation.

Angier v. Angier, 415 N.W.2d 53, 56 (Minn. App. 1987).

The district court's decision whether to vacate a judgment based on the parties' stipulation will not be disturbed absent an abuse of discretion. Glorvigen v. Glorvigen, 438 N.W.2d 692, 695 (Minn. App. 1989). When a judgment is entered pursuant to the parties' stipulation, the motion to vacate should be considered with a view towards the law regarding the vacation of a stipulation. Id.

A stipulation cannot be repudiated by one party without the other party's consent "except by leave of the court for cause shown." Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984). A stipulation may be set aside for fraud, duress, or mistake. Id. To determine whether a trial court abused its discretion by denying a motion to vacate a stipulation, a reviewing court should consider:

a. Whether the party was represented by competent counsel;

b. Whether extensive and detailed negotiations occurred;

c. Whether the party agreed to the stipulation in open court; and

d. Whether when questioned by the judge the party acknowledged understanding the terms and considering them fair and equitable.

Glorvigen, 438 N.W.2d at 696 (citations omitted).

Finally, "[p]arties cannot enter into a [custody] stipulation which might not be in the best interests of the child." Sydnes v. Sydnes, 388 N.W.2d 3, 7 (Minn. App. 1986).

Strandberg argues that the stipulation should be vacated because she was not represented by competent counsel. Strandberg contends that when the court excluded her witnesses because her witness list was provided by her attorney in an untimely manner, her attorney pressured her into agreeing to a stipulation by telling her that she had no other alternative. Strandberg claims that her attorney's conduct put her in a position where she felt she had to agree to the stipulation. Therefore, Strandberg concludes, she entered into the stipulation under duress.

With regard to the stipulation, the district court stated only that

before the stipulation was accepted the Court questioned each party as to whether they had been present during the three days of negotiation, whether they had ample opportunity to discuss all issues with their respective attorneys and whether the parties agreed with the stipulation. The [appellant] indicated in open court that she agreed with the proposed stipulation.

The district court's statement does not address Strandberg's claim that she was not represented by competent counsel when she agreed to the stipulation and that, as a result, she did not agree to the stipulation voluntarily. Although Strandberg said in open court that she had had the chance to fully discuss the matter with her attorney and that she agreed to the stipulation's terms, we cannot conclude from these facts that she did not agree to the stipulation under duress. Her claim is that it was her attorney's actions that placed her under duress. The fact that she discussed the stipulation with her attorney does not indicate whether the discussion itself caused duress, as she now claims.

We are unable to determine from the record whether Strandberg voluntarily agreed to the stipulation. See Kroeplin v. Haugen, 390 N.W.2d 872, 875-76 (Minn. App. 1986) (although court did not question parties about understanding of stipulation, there was substantial compliance with fourth factor because attorneys questioned parties, court commented to parties about finality of stipulations, and record supported voluntary nature of parties' acknowledgement of understanding terms), review denied (Sept. 25, 1986). We, therefore, remand to the district court to permit it to determine whether Strandberg was under duress when she agreed to the stipulation.

We must also consider Strandberg's argument that the judgment should be vacated pursuant to Minn. R. Civ. P. 60.02 on grounds of attorney neglect. Cf. Angier, 415 N.W.2d at 55-57 (court addressed whether stipulation should be set aside and whether judgment entered pursuant to stipulation should be vacated for fraud upon court).

A court may relieve a party from a final judgment or an order because of "[m]istake, inadvertence, surprise, or excusable neglect" or "[a]ny other reason justifying relief from the operation of the judgment." Minn. R. Civ. P. 60.02 (a), (f). The decision to vacate a judgment is vested in the district court's discretion and will not be reversed absent an abuse of discretion. Bentonize, Inc. v. Green, 431 N.W.2d 579, 582 (Minn. App. 1988). On appeal, the facts must be viewed in the light most favorable to the district court's order. Id. Strandberg contends that she was not negligent and that her attorney's failure to timely serve her witness list is excusable neglect.

A four-part test is used to analyze motions seeking relief from orders and judgments under rule 60.02. Charson v. Temple Israel, 419 N.W.2d 488, 491 (Minn. 1988). The court should relieve a client of the consequences of an attorney's neglect when the defendant

(a) is possessed of a reasonable defense on the merits, (b) has a reasonable excuse for his failure or neglect to answer, (c) has acted with due diligence after notice of the entry of judgment, and (d) [shows] that no substantial prejudice will result to the other party.

Finden v. Klass, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (Minn. 1964). Use of this four-part test is not limited to default judgments. Western Lake Superior Sanitary Dist. v. Interpace Corp., 454 N.W.2d 449, 452 (Minn. App. 1990).

In applying the four-part test, the district court determined that

The issue before the Court with regard to this analysis is the reasonable claim on the merits and lack of prejudice to the other party. The offer of proof presented by [appellant's] counsel clearly indicates that no new information would have been provided to the Court that had not already been provided previously. Therefore, [appellant] has failed to establish that she has a reasonable claim on the merits since the custody evaluation and the non-interested parties participating in the custody evaluation all conclude that the interests of the child are best served by [respondent] as the primary caretaker of the child.

The district court's explanation of its analysis of the reasonable claim issue demonstrates that it did not properly apply the four-part analysis. The issue to be determined by the court was whether Strandberg had a reasonable custody claim on the merits. It did not matter that the offer of proof regarding the anticipated testimony of Strandberg's excluded witnesses contained only cumulative information, or that the record included evidence that would support an award of custody to Haessly; what mattered was whether the information that had been provided to the court with the motion to vacate established a reasonable custody claim. The district court should only have determined whether Strandberg had a reasonable claim, not whether she could ultimately prevail on her claim.

We conclude that the information Strandberg provided to the court with her motion to vacate established a reasonable claim for sole physical custody. Strandberg's affidavit claimed that she was S.S.'s primary caretaker for the first five years of his life and that S.S. had lived with his half sisters his entire life and had a close relationship with them. These are two factors that a court must consider in awarding custody. Minn. Stat. 518.17 (1994). Strandberg had also been awarded temporary physical custody earlier in the paternity proceeding.

Our conclusion that the district court erred in determining that Strandberg did not have a meritorious claim does not, however, end our analysis. Even though Strandberg established a reasonable claim on the merits, she still had to show that vacating the judgment would not substantially prejudice Haessly. See Hellerstedt v. MacGibbon, 489 N.W.2d 247, 251 (Minn. App. 1992) (moving party has burden of showing no prejudice). Although the district court initially determined that lack of prejudice to Haessly was an issue, it did not address this issue further. We, therefore, remand to the district court to permit it to determine whether vacating the judgment will substantially prejudice Haessly. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate court will not address issue not decided by district court).

II.

Haessly seeks $3,117.37 in attorney fees on appeal. Minn. Stat. ' 518.14 (1994) permits an attorney fee award on appeal in a paternity action. See Pitkin v. Gross, 385 N.W.2d 367, 371 (Minn. App. 1986) (applying Minn. Stat. ' 518.14 to award attorney fees on appeal in paternity action). Haessly has submitted his attorney's affidavit stating that he earns $1,400 per month, that he supports S.S., and that Strandberg pays him $150 per month in support. Haessly did not submit evidence of his expenses or of Strandberg's income or expenses. Absent evidence of Haessly's expenses, this court cannot determine whether he lacks the resources to pay his fees. Also, Strandberg submitted evidence showing that her income is $1,233 per month and she supports three children. Given these facts, we do not award attorney fees on appeal.

Remanded.

MULALLY, Judge (dissenting).

I respectfully dissent.

As pointed out by the majority, the court may relieve a party from a final judgment or an order because of "[m]istake, inadvertence, surprise, or excusable neglect" or "[a]ny other reason justifying relief from the operation of the judgment." Minn R. Civ. P. 60.02(a), (f). Appellant argues that the judgment should be vacated on grounds of attorney neglect in failing to timely serve her witness list and that such failure is excusable neglect. However, by way of an offer of proof, the district court had the proposed testimony before it and in making its ruling, obviously considered it.

The majority finds that the district court erred in its treatment of appellant's claim that she had a reasonable custody claim on the merits. Inherent in its ruling is a finding that the court considered the issue and rejected it. The judgment of the district court on this issue should be respected.

It seems clear in ruling as it did that the district court found that vacating the judgment would substantially prejudice respondent. Such a finding makes eminently good sense. It is reasonable to assume that, pursuant to the stipulation, respondent has structured his life on the premise that S.S.'s primary place of residence is settled and will be with him. For this court now to suggest that vacating the judgment may not substantially prejudice respondent, is a concept difficult to rationalize.

This matter has been thoroughly explored through periods of negotiation, mediation, custody evaluation and evidentiary hearings before the district court. Pursuant to these sessions, the parties stipulated to all issues other than visitation. After giving the parties an opportunity to be heard, the court decided the visitation issues and entered a custody order that included the parties' stipulation. After all these proceedings, appellant's assertion of duress is unpersuasive. It is obvious that the district court found no reason to believe that appellant's agreement to the stipulation was in any sense coerced. I would defer to the district court. Here, as in any custody proceeding, the best interests of the child are paramount. This matter has been thoroughly considered, a reasonable determination has been agreed to by the parties and, based upon the facts before this court, litigation should be terminated at this time. I would affirm.


Footnotes

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