This opinion will be unpublished and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
C9-96-89

In Re the Marriage of:
Mary Idell Cunningham, petitioner,
Respondent,

vs.

William Cunningham,
Appellant.

Filed August 6, 1996
Affirmed in part, reversed in part, and remanded.
Norton, Judge

Pine County District Court
File No. F894757

William Sweeney, 628 Board of Trade Building, 301 West First Street, Duluth, MN 55802 (for Respondent)

Rhonda Swanson, David Spear, 615 Third Avenue West, Pine City, MN 55063 (for Appellant)

Considered and decided by Norton, Presiding Judge, Toussaint, Chief Judge, and Stone, Judge.*

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

NORTON, Judge

William Cunningham appeals an order denying his motion to vacate the property and maintenance provisions of the parties' stipulated dissolution decree. We reverse and remand the part of the order denying the motion to vacate the provision pertaining to appellant's accident and disability policy, but otherwise affirm.

FACTS

Appellant is 55 years old and respondent Mary I. Cunningham is 53. The parties were married in 1962 and have two children, both of whom were emancipated at the time of the dissolution proceeding. Appellant is employed full-time with the U.S. Postal Service. The parties stipulated that appellant's gross income is $4,048 per month. Respondent is partially disabled as a result of a stroke suffered in connection with the birth of one of the parties' children. Respondent held only part-time minimum wage jobs during the marriage and is currently employed part-time with gross income of approximately $450 per month.

Respondent commenced this marital dissolution action in June 1994. The parties and respondent's attorney conducted settlement negotiations on August 9, 1994, and August 12, 1994. Appellant was not represented by counsel. The parties and respondent's counsel signed a written stipulation resolving all of the issues in the dissolution on August 12, 1994. A judgment and decree incorporating the stipulation was entered on September 1, 1994.

The stipulated decree awards respondent permanent spousal maintenance of $1,200 per month and provides that as additional spousal maintenance, appellant shall keep in effect health insurance for respondent that is available through appellant's employer. Respondent was awarded marital property with a net value of $121,257.52, and appellant was awarded marital property with a net value of $103,103.06. Respondent was also awarded one-half of appellant's pension to be divided as of the time when appellant retires.

In December 1994, respondent brought a motion to enforce the maintenance and certain property division provisions of the decree. Appellant did not respond to the motion. Judgment granting respondent's motion was entered on April 17, 1995.

In June 1995, appellant filed a motion to vacate the September 1, 1994, decree and the April 17, 1995, judgment on the grounds of mistake, inadvertence, surprise, excusable neglect, or alternatively, because of fraud, misrepresentation, or other misconduct of an adverse party. The motion was submitted on the parties' affidavits. This appeal followed the district court's denial of the motion and appellant's subsequent motion for amended findings.

D E C I S I O N

On appeal, a district court's decision whether to vacate a marital dissolution stipulation and the resulting judgment will not be disturbed unless there is an abuse of discretion. Maranda v. Maranda, 449 N.W.2d 158, 164 (Minn. 1989). The district court's findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.

As a threshold matter, appellant argues the district court erred in failing to hold an evidentiary hearing on the motion to vacate. Generally, motions in family court proceedings shall be submitted on documentary evidence, unless the court otherwise orders for good cause shown. Minn. R. Gen. Pract. 303.03(d). The district court did not err in failing to hold an evidentiary hearing, because the record does not indicate that appellant requested oral testimony on the motion to vacate. This issue is not properly before us on appeal. See In re Estate of Magnus, 436 N.W.2d 821, 823 (Minn. App. 1989) ("appellate court may not grant relief never requested in the trial court").

The district court is authorized to relieve a party from a judgment and decree on certain specified grounds, including "mistake, inadvertence, surprise, or excusable neglect," and "fraud, * * * misrepresentation, or other misconduct of an adverse party." Minn. Stat. ' 518.145, subds. 2(1), (3) (1994). Because the decree was based on the parties' stipulation, the issue of vacation is examined in the light of the law on stipulations. Merickel v. Merickel, 414 N.W.2d 208, 211 (Minn. App. 1987). Courts favor stipulations in dissolution cases as a means of simplifying and expediting litigation. Maranda, 449 N.W.2d at 165.

In addressing a motion to vacate a stipulation, courts examine four factors:

(1) whether the party was represented by competent counsel; (2) whether extensive and detailed negotiations occurred; (3) whether the party agreed to the stipulation in open court; and (4) whether when questioned by the judge the party acknowledged understanding the terms and considering them fair and equitable.

Pekarek v. Wilking, 380 N.W.2d 161, 163 (Minn. App. 1986).

A knowing and voluntary waiver of counsel is sufficient to meet the requirement of representation by counsel. Glorvigen v. Glorvigen, 438 N.W.2d 692, 696 (Minn. App. 1989). Appellant acknowledges that at the settlement conference, respondent's counsel advised him that he had the right to his own attorney. The stipulation specifies that appellant has freely and voluntarily waived his right to counsel. Appellant argues that the waiver is ineffective because it is contained in the body of the stipulation, rather than in an addendum as recommended by the advisory committee comment to the family court rule. See Minn. R. Gen. Pract. 306.01(c) comm. cmt. Appellant cites no authority in support of his contention that the stipulation must be vacated because the waiver of counsel is not in the form recommended by the family court rules.

The factor regarding the nature of the negotiations favors denial of a motion to vacate when the negotiations were highly detailed and comprehensive in nature and the pro se party was not foreclosed from challenging the validity of any information before signing the stipulation. Glorvigen, 438 N.W.2d at 697. Literal compliance with the last two factors regarding the parties' agreement to the stipulation in open court and acknowledgment to the court that the terms are fair and equitable is not required when the pro se party voluntarily waives the right to be present in court and to be questioned about the provisions of the stipulation. Id. The district court concluded that this case is similar to Glorvigen, because appellant had ample opportunity to obtain counsel, the negotiations occurred over two meetings and covered all aspects of the stipulation, and appellant's failure to appear at a default hearing does not require vacation of the decree.

Appellant argues this case is distinguishable from Glorvigen because he did not understand the terms of the stipulation due to his limited ability to read. The district court apparently credited respondent's affidavit and supporting documents showing that appellant does not have a reading problem. This court defers to the district court's credibility determinations. General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987); see Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) (appellate court defers to district court's resolution of conflicts in evidence presented by affidavit).

Appellant also challenges the district court's finding that appellant did not produce any evidence of fraud or material misrepresentation on the part of respondent's counsel that would justify vacating the decree. The preponderance of the evidence standard is the correct standard of proof required to show fraud in a motion to vacate under Minn. Stat. ' 518.145. Kornberg v. Kornberg, 542 N.W.2d 379, 387 n.3 (Minn. 1996). The elements of fraud in the context of a marital dissolution action are:

(1) an intentional course of material misrepresentation or nondisclosure; (2) having the result of misleading the court and opposing counsel; and (3) making the property settlement unfair.

Id. at 387.

Courts should carefully scrutinize allegations of fraud or other misconduct occurring during settlement negotiations between an attorney and a party not represented by counsel. But the record in this case supports the district court's finding that appellant did not make an adequate showing of fraud or material misrepresentation. Respondent's affidavits specifically refute appellant's claims that he was not informed that the value of his vacation and sick leave would be counted as a marital asset and that appellant did not agree to pay the cost of maintaining respondent's health insurance through his employer.

The record also does not support appellant's claim that he was coerced into signing the stipulation by the behavior of respondent's counsel. Although at one point at the settlement conference respondent's attorney ordered appellant out of his office because of appellant's behavior toward respondent, appellant voluntarily returned to the office and asked to resume the negotiations. Respondent's counsel's alleged statement to appellant that the parties would have to go to court if appellant did not agree to respondent's terms does not constitute evidence of coercion or duress. Finally, appellant has not shown that respondent's counsel had a duty to bring to the court's attention a letter written by appellant after the stipulation was signed indicating appellant no longer agreed to its terms. Respondent's counsel specifically advised appellant at both negotiating sessions that he should consult with an attorney regarding the stipulation, and the stipulation clearly states that respondent's counsel does not represent appellant.

Although we affirm the district court's denial of the motion to vacate on the grounds of fraud and misrepresentation, the record indicates that one provision of the stipulated decree does not reflect either party's intention. The decree awards respondent "all benefits payable" on appellant's accident and disability policy. Appellant argues he did not agree that respondent would receive all his benefits under the policy if he becomes disabled. In her affidavits, respondent indicates that the disability benefits were assigned to her to ensure that spousal maintenance would be paid and that the parties agreed respondent would receive $1,200 of the disability payment per month. Respondent states it was intended that appellant would receive the balance of the payment over and above the $1,200 maintenance obligation if he becomes disabled.

The part of the decree awarding respondent all benefits payable on appellant's accident and disability policy does not reflect the intent of the parties. We reverse the part of the district court's order denying the motion to vacate this provision of the decree and remand for entry of an amended decree that accurately reflects the parties' intentions regarding division of any benefits payable from appellant's accident and disability policy.

Finally, appellant argues the stipulation should be vacated because it was "improvidently made." See John v. John, 322 N.W.2d 347, 348 (Minn. 1982) (stipulation may be vacated if it was "improvidently made and in equity and good conscience ought not to stand").

Although appellant stipulated that his gross monthly income is $4,048 per month, he attached an affidavit to his motion for amended findings claiming that his net biweekly pay is only $1,106. Appellant contends he cannot meet his basic expenses and still pay respondent $1,200 per month for maintenance and $240 per month for health insurance.

The new information regarding appellant's income was not properly before the court on a motion for amended findings. See Otte v. Otte, 368 N.W.2d 293, 299 (Minn. App. 1985) (motion to amend findings may not be based on new evidence that is not part of the record). Even if the new evidence is considered, it does not support a conclusion that the maintenance award is improvident. Appellant submitted a pay stub with his motion for amended findings, showing net biweekly pay of $1,422.71. Appellant claims that $316.71 of this amount should be excluded because it is a payment for the maintenance and care of his automobile. But appellant did not make a specific showing that the payment at issue was used exclusively for business expenses. See Bates v. Bates, 404 N.W.2d 817, 819 (Minn. App. 1987) (a car allowance received from an employer may be included in net income).

Appellant also contends the unequal property division should be vacated as inequitable. Although the overall property division is favorable to respondent, the division is not inequitable, in view of respondent's permanent partial disability and appellant's greater earning capacity. See Minn. Stat. ' 518.58, subd. 1 (1994) (court shall consider health, amount and sources of income, employability, and needs of each party in determining an equitable property division).

The September 1, 1994, decree was entered based on the parties' stipulation without a hearing or an appearance by either party. See Minn. Stat. ' 518.13, subd. 5(1) (1994) (proposed judgment and decree must be submitted to the court for approval and filing without a final hearing if there are no minor children of the marriage and the parties have entered into a written stipulation). The district court should carefully review the parties' stipulation and liberally exercise its authority to order a hearing if there are any apparent inequities in the proposed decree. See id. ("court shall schedule the matter for hearing in any case where the proposed judgment and decree * * * is contrary to the interests of justice"). In this case, except for the provision regarding the award of appellant's disability benefits, we affirm the district court's determination that appellant did not show a basis to vacate the stipulated decree.

Affirmed in part, reversed in part and remanded.


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.