This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-1088

In Re the Marriage of:

Richard T. Woodbury, petitioner,

Respondent,

vs.

Mildred R. Woodbury,

Appellant.

Filed December 31, 1996

Reversed and remanded

Norton, Judge

Concurring specially, Lansing, Judge

Ramsey County District Court

File No. F4-87-23459

Ronald B. Sieloff, Sieloff and Associates, P.A., 938 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for Respondent)

Daniel L.M. Kennedy, 3340 37th Avenue South, Minneapolis, MN 55406 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Huspeni, Judge, and Norton, Judge.

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

NORTON, Judge

Mildred Woodbury appeals the district court's denial of her motion to vacate judgment. We reverse and remand.

FACTS

The dissolution judgment of appellant Mildred R. Woodbury (wife) and respondent Richard T. Woodbury (husband) reserved the issue of spousal maintenance. The district court initially granted wife's motion for permanent maintenance in the amount of $1,300 per month, but later vacated the maintenance award, remanding the motion to the family court referee for an evidentiary hearing.

On the first day of the evidentiary hearing, wife's attorney, Jeanne Chacon, requested a continuance. Over the objection of husband's counsel, the referee continued the hearing and directed Chacon to draft an amended pretrial order memorializing the referee's instructions regarding discovery and evidentiary matters. Chacon failed to draft the pretrial order or prepare in any fashion for the evidentiary hearing. In her affidavit, wife explained her difficulties communicating with Chacon:

Again after the hearing, Ms. Chacon failed to return my calls. I wrote letters, and she did not respond to them. I would have hired a different lawyer, except that this case had extensive discovery and the loss of my file would make it very difficult to prepare for and do well at the hearing. Ms. Chacon had the file, forcing me to first arrange for the retrieval of the file, then hire a new lawyer.

With some persistence, I was able to arrange through an intermediary to retrieve my files from Ms. Chacon, who would not speak directly with me.

Husband then moved to dismiss wife's motion for maintenance. Soon thereafter, wife authorized the substitution of her present counsel, Daniel Kennedy, for Chacon. On the same day, Kennedy wrote the following letter to husband's counsel:

I have been retained by [wife] to act as her attorney for the evidentiary hearing on March 25-28, 1996. Enclosed is a substitution of counsel form.

Because I am new to this case, I do not know much about the performance of [wife's] prior attorney, Jeanne Chacon. If you believe that Ms. Chacon was supposed to provide anything to you but failed to do so, please inform me immediately.

Likewise, please feel free to call if you have any questions.

Wife's attorney failed to appear at the hearing and oppose the motion to dismiss. The district court then dismissed with prejudice wife's motion for maintenance and entered judgment on the same day. Wife moved for a "new hearing," pursuant to Minn. Stat. § 518.145 (1994) and Minn. R. Civ. P. 59.01 and 60.02(f). The district court denied the motion. Wife appeals.

D E C I S I O N

Although wife sought a new hearing on husband's motion to dismiss, she essentially sought to vacate judgment. In marriage dissolution proceedings, a motion to vacate judgment should be brought under Minn. Stat. § 518.145 rather than Minn. R. Civ. P. 60.02. Maranda v. Maranda, 449 N.W.2d 158, 164 n.1 (Minn. 1989); Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 493 (Minn. App. 1995).[1] On appeal, we will uphold the district court's decision absent an abuse of discretion. Peterson v. Eishen, 512 N.W.2d 338, 341 (Minn. 1994). We view the record in a light most favorable to the district court's order. Bentonize, Inc. v. Green, 431 N.W.2d 579, 582 (Minn. App. 1988).

Wife argues that the conduct of her former attorney, Jeanne Chacon, constituted mistake, inadvertence, or excusable neglect. See Minn. Stat. § 518.145, subd. 2(1) (1994) (listing grounds for re-opening a proceeding). In order to establish excusable neglect, by either the party itself or its counsel, the defaulting party must show (1) a reasonable claim on the merits, (2) a reasonable excuse for failure or neglect to act, (3) that it acted with due diligence after notice of the entry of judgment, and (4) that no substantial prejudice will result to the other party if the action is reopened. Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964).[2] A weak showing on one factor may be overcome by a strong showing on the other three factors. Guillaume & Assocs., Inc. v. Don-John Co., 371 N.W.2d 15, 19 (Minn. App. 1985). Recognizing that the goal of all litigation is to decide cases on the merits, Minnesota courts should be liberal in vacating default judgments. Taylor v. Steinke, 295 Minn. 244, 246, 203 N.W.2d 859, 860 (1973).

Wife has shown the existence of a meritorious claim for permanent maintenance. The district court previously awarded wife permanent maintenance in the amount of $1,300 per month. After husband sought review of this award, the district court decided that an evidentiary hearing was necessary to afford the parties the opportunity to conduct cross-examination.

Wife's reasonable defense for not responding to husband's motion to dismiss is attorney neglect. Husband does not refute wife's allegations that her former attorney failed to prosecute her claim for maintenance and failed to respond to husband's discovery requests. The supreme court noted that

even in those cases where a court has held the neglect of a client's attorney to be inexcusable, if such neglect has been purely that of counsel, ordinarily courts are loath to "punish" the innocent client for the counsel's neglect.

Charson v. Temple Israel, 419 N.W.2d 488, 491 (Minn. 1988). During the months leading up to the evidentiary hearing, wife justifiably relied on her attorney to monitor her case properly, at the same time that wife actively sought to communicate with her. Again, husband does not refute wife's claim that Chacon never informed her of husband's motion to dismiss.[3] The district court found that wife's failure

to comply with the Second Pretrial Order, her failure to answer discovery, her failure to provide witness and exhibit lists, and her failure to respond to Petitioner's motion and appear at the March 5, 1995 hearing does not constitute mistake, inadvertence, surprise, or excusable neglect.

The district court held wife responsible for her attorney's neglect. Charson makes it clear that we must scrutinize the client's actions apart from her attorney's omissions. Id. We conclude that wife is blameless for her attorney's failure to act. See Conley v. Downing, 321 N.W.2d 36, 40-41 (Minn. 1982) (attorney's failure to submit responsive pleading to motion for summary judgment is reasonable excuse for client's failure to act).

Wife acted with due diligence by filing her notice of motion and motion for a new hearing four days after the entry of judgment. See Riley ex rel. Swanson v. Herbes, 524 N.W.2d 523, 526 (Minn. App. 1994) (acting within one week of receiving notice constituted due diligence).

Wife has established that no substantial prejudice will result to husband if judgment is vacated. Delay alone "constitutes an insufficient showing of prejudice." Charson, 419 N.W.2d at 491. Husband, however, claims that due to the delay in the proceedings three witnesses are no longer available to testify. One witness, husband's former supervisor, was expected to provide information concerning husband's 1994 earnings. While this witness no longer works for the same company, husband can subpoena any business documents, and the witness can testify as to their contents. The second witness, wife's former supervisor, cannot be located. Nevertheless, wife's employment records can be obtained through discovery. The third witness, husband's forensic economist, has died. If necessary, husband can retain another forensic economist.

Prejudice to husband is not of "such a character that some substantial right or advantage will be lost or endangered" if judgment is vacated. Firoved v. General Motors Corp., 277 Minn. 278, 283-84, 152 N.W.2d 364, 368 (1967). The district court can adequately compensate husband by the allowance of costs, the imposition of attorney fees, or other reasonable conditions short of dismissing with prejudice wife's claim for maintenance. See id. (noting availability of these remedies to compensate for ordinary expense and inconvenience of preparation and readiness for trial).

Because wife has satisfied the four Finden requirements, we conclude that the district court abused its discretion in denying wife's motion to vacate judgment. We note, for the record, that professional courtesy could have eliminated the need to vacate this judgment. As previously noted, a telephone call by wife's present counsel to husband's attorney would have revealed the pending motion to dismiss. At the hearing on the motion to dismiss, husband's counsel could have alerted the court as to the letter from wife's attorney. The court knew that wife had retained substitute counsel; a telephone call would have verified whether wife intended to oppose husband's motion. After no one appeared in opposition, the court asked husband's counsel to prepare a draft order granting the motion to dismiss. A copy of the draft order could have been delivered to wife's counsel for review. While we cannot say that husband's motion to dismiss qualified as an ex parte hearing, the result was the same. The district court was understandably frustrated with the inactivity on the part of wife's counsel. Under the instant facts, however, wife should not be punished for her attorney's neglect.

Reversed and remanded.

LANSING, Judge (concurring specially).

The record demonstrates that the motion to continue maintenance was dismissed because the court was not provided with requested materials. Respondent has not refuted appellant's assertions that the negligence is attributable to her attorney rather than her, and for that reason I concur in the majority opinion.

[ ]1 Husband argues that the order denying wife's motion for a new hearing is not an appealable order. We disagree. Wife correctly moved to vacate judgment under Minn. Stat. § 518.145 (1994).

[ ]2 Although this case concerns the failure to defend a motion to dismiss rather than a default judgment, the four-part test applies in either instance. Conley v. Downing, 321 N.W.2d 36, 40 (Minn. 1982).

[ ]3 Although wife's present attorney sent an introductory letter to husband's attorney, this was not enough to protect the client's interests. Because of the suspected inactivity by wife's former attorney, prudent counsel would have telephoned husband's attorney for a status update of the litigation.