This opinion will be unpublished and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

C5-96-588

In Re the Marriage of:

Steven K. Thompson, petitioner,

Respondent,

vs.

Patricia K. Thompson,

Appellant.

Filed October 8, 1996

Affirmed

Short, Judge

Hennepin County District Court

File No. 187442

Steven K. Thompson, 16120 - 37th Avenue North, Plymouth, MN 55446 (Pro Se respondent)

Helen Dovolis, Dovolis Law Office, 4018 West 65th Street, Suite #105, Edina, MN 55435 (for appellant)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.

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

SHORT, Judge

Two months after the entry of a judgment and decree of dissolution, Patricia K. Thompson moved: (1) to vacate a settlement stipulation because her attorney allegedly was incompetent and her former spouse allegedly had misrepresented the value of marital property; and (2) to modify a custody determination because her former spouse allegedly was abusive of their teenage children. The trial court denied both motions. On appeal, Thompson argues the trial court abused its discretion by refusing to amend the judgment and decree. We affirm.

D E C I S I O N

A trial court has broad discretion to resolve issues of marital property division and child custody. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). We will not reverse a trial court's determination of these issues absent an abuse of that discretion. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993) (child custody); Cooper v. Cooper, 298 Minn. 247, 249, 214 N.W.2d 682, 684 (1974) (property division).

I.

Where the judgment and decree incorporate a stipulation agreed to by the parties, a trial court may review the circumstances surrounding the stipulation. See Maranda v. Maranda, 449 N.W.2d 158, 166 (Minn. 1989) (analyzing husband's conduct in procuring wife's agreement to stipulation). A court may set aside a stipulation for fraud, duress or mistake. Angier v. Angier, 415 N.W.2d 53, 56 (Minn. App. 1987).

Thompson argues the stipulation should be set aside because she did not fully comprehend its terms due to a learning disorder, incompetent advice from counsel, and material misinformation from her former spouse. We disagree. First, the issue concerning the learning disability is not properly before us because Thompson failed to raise the issue before the trial court. See Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977) (stating that an appellate court may not base its decision on matters outside the record on appeal). Second, the evidence supports the trial court's finding that both parties were represented by "competent counsel who zealously advocated their respective clients' positions." In addition, Thompson acknowledged in open court she understood the terms of the agreement, it was a "fair enough" settlement, and she "believe[d]" she had had enough time to consider the settlement. See Pekarek v. Wilking, 380 N.W.2d 161, 164 (Minn. App. 1986) (upholding stipulation where wife acknowledged agreement reluctantly, but nonetheless "clearly agreed to the stipulation and did not withhold her consent"). And third, the parties' home was appraised by a certified appraiser and Thompson offered no evidence of other inaccurate valuations. See Glorvigen v. Glorvigen, 438 N.W.2d 692, 697 (Minn. App. 1989) (ruling against fraud claim where "[p]roperty valuations were agreed upon, and nothing in the record indicates that appellant was foreclosed from challenging the validity of any information before she signed the stipulation"). Under these circumstances, we cannot say the trial court abused its discretion by denying Thompson's motion to vacate the judgment and decree on the basis of mistake or fraud.

II.

To warrant modification of a custody order, a party must establish: (1) a change has occurred in the circumstances of the child or custodian; and (2) modification of the custody order is necessary to serve the child's best interests. Minn. Stat. § 518.18(d) (Supp. 1995). The change of circumstances must be a real change and not a continuation of ongoing problems. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989). Even if both standards have been met, the trial court must retain the custodian established by the original order unless the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development, and the harm likely to be caused by a change of environment is outweighed by the advantage to the child of a change. Minn. Stat. § 518.18(d)(iii); State ex. rel. Gunderson v. Preuss, 336 N.W.2d 546, 548 (Minn. 1983).

Thompson argues the trial court erred by refusing to modify the custody order to grant her sole physical custody of the parties' two children, ages 16 and 14. We disagree. The trial court made extensive findings of fact, which included: (1) serious problems existed in both parties' homes; (2) physical altercations occurred between the teenage children and Thompson's former spouse; (3) on one occasion, Thompson's former spouse maltreated the sixteen-year-old son; and (4) the two teenagers were not presently endangered in their father's home.

There is ample evidence to support the trial court's findings. The guardian ad litem testified he was not certain the parties' daughter would be better off living with Thompson, and the teenagers were not presently in physical danger with their father. A court services representative testified he was uncertain that Thompson's son could live successfully with her. Through statements and a recent letter, the teenagers said they were not afraid of their father, could live with him, and apologized to their father and stepmother for their misbehavior. Given these facts, we cannot say the trial court abused its discretion in declining to modify the two-month-old custody award.

Although the trial court misapplied the standard for modification on grounds of interference with visitation, the error was harmless because the court found that neither party persistently or wilfully interfered with the children's relationship with the other parent. See Minn. Stat. § 518.18(d) (containing no provision for custody modification solely for interference with visitation); Dabill v. Dabill, 514 N.W.2d 590, 595 (Minn. App. 1994) (considering interference with visitation in endangerment analysis); see also In re the Welfare of D.T.N., 508 N.W.2d 790, 797 (Minn. App. 1993), review denied (Minn. Jan. 14, 1994) (stating that a reviewing court will not reverse a trial court for an error that did not change the result).

Thompson requests reasonable attorneys' fees on appeal. Because Thompson made no showing of her need or of bad faith by her former spouse, we decline to award attorneys' fees. See Minn. Stat. § 518.14, subd. 1 (1994) (requiring proof of need for award of fees); Minn. Stat. § 549.21, subd. 2 (1994) (permitting charge of attorneys' fees against party acting in bad faith).

Affirmed.