This opinion will be unpublished and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

C9-96-1212

In Re the Marriage of:

Janine Adele Dulian, petitioner,

Appellant,

vs.

David Joseph Dulian,

Respondent.

Filed January 28, 1997

Affirmed

Norton, Judge

Dakota County District Court

File No. F49512133

Deno W. Berndt, Warchol, Berndt & Hajek, P.A., 3433 Broadway Street NE, Ste. 110, Minneapolis, MN 55413-1783 (for Appellant)

Robert A. Standke, Standke, Greene & Greenstein, Ltd., 17717 Highway 7, Minnetonka, MN 55345 (for Respondent)

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

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

NORTON, Judge

Janine Dulian appeals from a district court order denying her motion to modify child support. We affirm.

FACTS

Appellant Janine Dulian (mother) and respondent David Dulian (father) were married on June 7, 1986. Their two minor children were born in 1992 and 1994. In January 1995, mother filed a petition for dissolution of marriage, specifically seeking child support and child care expenses. Mother subsequently discharged her attorney and personally negotiated a marital termination agreement (MTA) with father. The parties intended the MTA to be a full, complete, and final settlement of all claims. As part of the MTA, mother signed the following declaration:

I know I have the right to be represented by an attorney of my choice and I hereby expressly waive that right. I have read the foregoing Marital Termination Agreement in its entirety, and I fully understand the meaning of its terms. I have freely and voluntarily signed it because I believe it to be a fair and equitable resolution of the child custody, child support, spousal maintenance and property division issues in this matter.

Based on the MTA, mother withdrew her petition for dissolution and agreed that father would proceed by default. The court entered judgment, which provided that father pay $1,000 per month in child support, neither party pay spousal maintenance, and father pay mother the sum of $20,000 for her share of the marital property. The judgment did not address the allocation of child care expenses.

In November 1995, mother brought a motion to modify child support or, in the alternative, vacate the judgment. The district court denied the motions and awarded father $2,000 in attorney fees. Mother appeals.

D E C I S I O N

1. The decision to modify a child support order lies in the broad discretion of the district court. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). This court will affirm unless it finds a "'clearly erroneous conclusion that is against logic and the facts on record.'" Id. (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)). Modification of support requires a substantial change in circumstances making the existing award unreasonable and unfair. Marx v. Marx, 409 N.W.2d 526, 527-28 (Minn. App. 1987); Minn. Stat. § 518.64, subd. 2 (1996).

In an attempt to avoid the modification standard of proof, mother argues that the judgment's failure to address child care expenses acts as a complete waiver of child support and required the district court to make an initial support determination. See Aumock v. Aumock, 410 N.W.2d 420, 421 (Minn. App. 1987) (holding waiver of child support to be against public policy); Minn. Stat. § 518.551, subd 5(b) (1996) (amount allocated for child care expenses considered child support). Mother urges this court to construe the MTA to contain a reservation of the child support issue. Mulroy v. Mulroy, 354 N.W.2d 66, 68-69 (Minn. App. 1984) (holding that, when judgment reserved issue of child support, later award did not require showing of changed circumstances). We disagree. The judgment does not waive child support; indeed, it requires father to pay $1,000 per month. Nor does the judgment contain any language that reserved child support. See id. at 69 (issue must be reserved through specific language in the dissolution judgment). The district court noted that mother's petition requested both child support and a contribution to child care expenses and found that "[c]hild care expenses were specifically contemplated by the parties" at the time of the judgment. We conclude that the district court properly determined that the judgment included a child support provision and thus properly considered mother's motion as a request to modify the current support provision.

Mother claimed a $159 increase in monthly child care expenses, from $771 to $930. Mother argues that the increase in child care expenses, coupled with father's increased earnings in the form of bonus income, established a substantial change in circumstances. The district court determined that, even if the increased child care expenses were considered a substantial change in circumstances, mother failed to show that the change made the existing decree unreasonable and unfair. At the time of the decree, mother's monthly net income, combined with father's child support payment, exceeded her monthly expenses by $281.95. At the time of her motion to modify, mother's monthly income had increased by $157.90, and father's monthly income had decreased. Mother does not contest these findings. Under these circumstances, the district court found that allocation of child care expenses now would be substantially unfair to father. See Minn. Stat. § 518.551, subd. 5(b) (court shall allocate child care expenses "unless the allocation would be substantially unfair to either parent"). On this record, the district court did not abuse its discretion by denying mother's motion to modify.

2. Alternatively, mother argues that the district court erred by failing to vacate the judgment, pursuant to Minn. R. Civ. P. 60.02. In marriage dissolution cases, a motion to vacate is properly brought under Minn. Stat. § 518.145 (1996) rather than Rule 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). On appeal, we will affirm a district court's decision whether to vacate a judgment and a stipulation in the absence of an abuse of discretion. See Maranda, 449 N.W.2d at 164 (judgment); Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984) (stipulation).

Mother alleges that father's failure to disclose his bonus payments to the court at the time of the default hearing amounted to fraud on the court. To prove fraud on the court in the marriage dissolution context, a party must show "an intentional course of material misrepresentation or nondisclosure, having the result of misleading the court and opposing counsel" and making the settlement "grossly unfair." Maranda, 449 N.W.2d at 165. The record shows the parties fully negotiated the terms of the MTA; mother does not dispute father's allegation that the parties discussed this issue and made compromises on both sides of the table. The record contains no evidence that father intentionally misled mother or the court. The district court did not abuse its discretion by upholding the judgment.

When considering whether to vacate a stipulation, the district court must consider four factors: did competent counsel represent the party; did extensive and detailed negotiations occur; did the party agree to the stipulation in open court; and, when questioned by the judge, did the party acknowledge understanding the terms and considering them fair and equitable? Pekarek v. Wilking, 380 N.W.2d 161, 163 (Minn. App. 1986) (citing Tomscak, 352 N.W.2d at 466).

Mother expressly waived her right to representation by counsel as part of the MTA. When a party is not represented by counsel during the period of negotiation and execution of the stipulation, a knowing and voluntary waiver of counsel is sufficient to meet the first factor. Glorvigen v. Glorvigen, 438 N.W.2d 692, 696 (Minn. App. 1989). Mother does not refute father's claim that the parties spoke on numerous occasions regarding the terms of the MTA. Although mother did not communicate her agreement to the MTA in open court, she knowingly and voluntarily waived her right to be present in court at the default hearing. See id. at 697 (party may knowingly and voluntarily waive right to presence in court to answer questions about stipulation's provisions). Because mother agreed that father could proceed by default, she was not available to answer the court's questions regarding whether she considered the terms of the MTA to be fair and equitable. But her signed acknowledgement that the MTA was fair and equitable on the issues of child custody, child support, spousal maintenance, and property division meets the requirements of the fourth factor. See id. (signed acknowledgement that party accepts agreement as fair and final meets fourth requirement). The district court did not abuse its discretion by denying the motion to vacate the MTA.

3. Father moves this court for an award of $2,000 in attorney fees based on Minn. Stat. § 518.14, subd. 1 (1996). Father argues that he does not have the means to pay his attorney fees, that mother's appeal is not meritorious, and that mother's appeal has unreasonably contributed to the length and expense of the proceeding. To support his claim that mother's appeal is not meritorious, father cites the district court's finding that mother acted in bad faith. But the district court already awarded father $2,000 in attorney fees based on that determination. An award of fees on appeal based on that previous finding of bad faith would be duplicative. See Johnson v. Johnson, 533 N.W.2d 859, 867 (Minn. App. 1995) (when district court already awarded attorney fees, award of fees on appeal, based on events that happened before district court, would be duplicative). Father provides no support for his claim that he is unable to afford attorney fees. This case does not warrant an award of attorney fees on appeal.

Affirmed.