This opinion will be unpublished and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

C3-96-1576

In Re the Marriage of:

Jean Ann Dick, petitioner,

Appellant,

vs.

Albert Blake Dick, IV,

Respondent.

Filed March 11, 1997

Affirmed

Huspeni, Judge

Hennepin County District Court

File No. 198845

A. Larry Katz, Elizabeth B. Bowling, Katz & Manka, Ltd., 4150 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for Appellant)

Patricia A. O'Gorman, Patricia A. O'Gorman, P.A., 8750 90th Street South, Suite 207, Cottage Grove, MN 55016 (for Respondent)

William E. Haugh, Jr., Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, St. Paul, MN 55101 (for Respondent)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.

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

HUSPENI, Judge

Appellant Jean Ann Dick, n/k/a Jean Marie Carr, claims that the district court erred by finding the parties did not agree, as part of their stipulation, that respondent's maintenance obligation would continue beyond his death. Appellant also claims that if the parties did not agree on the duration of maintenance, the court's refusal to vacate the stipulation was error. Because the record supports the court's finding and its refusal to vacate the stipulation, we affirm.

FACTS

The parties stipulated to the terms of their dissolution late in the afternoon of their fifth and final pretrial hearing date, more than two years after the petition for dissolution was filed. In the stipulation read into the record, the parties agreed that appellant would receive $8,500 per month in spousal maintenance.[1] Respondent's counsel, while reading the stipulation into the record, stated that maintenance would terminate upon the remarriage of appellant or the death of either party. Appellant did not object to the duration of maintenance when it was read into the record. Both parties then testified that they understood that respondent would pay maintenance until the remarriage or death of appellant. Neither party was asked about maintenance continuing beyond the death of respondent. The case then proceeded as by default.

Respondent's counsel's proposed findings, conclusions, and judgment included a provision consistent with what was read into the record: maintenance would continue until the remarriage of appellant or the death of either party. After receiving a copy of the proposed judgment, appellant objected to respondent's counsel and asked that the maintenance provision be removed and replaced with a provision that terminated maintenance upon the remarriage or death of appellant only. Respondent refused to make appellant's requested change and forwarded the proposed judgment to the district court for execution. The district court received no further objection from appellant and entered the judgment as proposed by respondent.

Appellant moved for amended findings or a new trial. In support of her motion, appellant relied on the stipulation transcript and the testimony of the parties. Respondent opposed appellant's motion with an affidavit denying that the issue of maintenance continuing beyond the death of respondent was ever discussed, bargained for, or agreed to by the parties and their attorneys. The district court denied appellant's motions.

D E C I S I O N

1. Whether the parties agreed that maintenance would continue beyond the death of respondent is a question of fact. Morrisette v. Harrison Int'l Corp., 486 N.W.2d 424, 427 (Minn. 1992) (disputed contract term is question for fact-finder). Accordingly, we must view the evidence in the light most favorable to the district court's finding and its finding will not be reversed unless it is clearly erroneous. Kennedy v. Kennedy, 403 N.W.2d 892, 897 (Minn. App. 1987); Minn. R. Civ. P. 52.01. The existence of an agreement is judged objectively by the conduct of the parties, not by their subjective intent. Crince v. Kulzer, 498 N.W.2d 55, 57 (Minn. App. 1993).

The district court found that the parties did not agree to continue maintenance beyond the death of respondent by relying on the following evidence:

The language of the stipulation read into the record without objection,

The parties' testimony that respondent personally would pay maintenance to appellant until her death or remarriage and the lack of any testimony that respondent's estate or trusts would be obligated to pay after his death,

The court's recollection that maintenance continuing beyond the death of respondent was not discussed in the court's presence at any of the pretrial conferences.

The court's finding is supported by the record and by the objective conduct of the parties.

"Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party * * *." Minn. Stat. § 518.64, subd. 3 (1996). Appellant claims that the parties' testimony evidenced an agreement sufficient to abrogate the statute's general rule. We disagree. Both the statute and case law require far greater specificity than appellant demonstrates here. Id.; Witt v. Witt, 350 N.W.2d 380, 382 (Minn. App. 1984). Even assuming that the trial court had granted appellant's request to replace the maintenance provision in the decree with one that "terminated maintenance upon the remarriage or death of appellant only," we would conclude that the replacement language failed to ensure maintenance payments after the death of respondent. As indicated in Witt, an agreement that maintenance would continue for the life of the obligee "does not, without more, expressly provide for maintenance after the obligor's death." 350 N.W.2d at 382.

An agreement to require maintenance beyond the death of the obligor must also provide a means of funding, such as an insurance policy[2] or a lien on property. Id. Further, in view of the clear language of the stipulation read into the record, the law cannot presume that payment for the life of appellant also meant that maintenance would continue beyond the death of respondent. See Metropolitan Sports Facilities Comm'n v. General Mills, Inc., 470 N.W.2d 118, 123 (Minn. 1991) (a party cannot alter unequivocal language of agreement with speculation of an unexpressed intent).

The district court correctly found that the parties did not expressly agree to extend respondent's obligation to pay maintenance beyond his death. Witt, 350 N.W.2d at 382; cf. Gunderson v. Gunderson, 408 N.W.2d 852 (Minn. 1987) (unconditional term of maintenance is not express agreement that maintenance would continue beyond remarriage of obligee); Kahn v. Tronnier, 547 N.W.2d 425, 430-31 (Minn. App. 1996) (maintenance continues beyond marriage of obligee only if parties have express agreement), review denied (Minn. July 10, 1996).

2. A district court's refusal to vacate a stipulation will not be disturbed on appeal in the absence of an abuse of discretion. Maranda v. Maranda, 449 N.W.2d 158, 164 (Minn. 1989). Stipulations are particularly favored in dissolution cases as a means of simplifying and expediting litigation. Id. They are treated as binding contracts and cannot be repudiated or withdrawn by one party without the consent of the other, except by leave of the court for fraud, duress, or mistake. Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984).

Appellant argues that if the court could not find an agreement to continue maintenance beyond the death of respondent, then that mistake as to the duration of maintenance justified vacating their stipulation. We disagree. The court did not find that the parties' lack of agreement on this point was a mistake. The duration of maintenance was consistent with the stipulation read into the record; the stipulation was consistent with the court's recollection of the parties' negotiations, and appellant testified that she was adequately represented, and that she understood the terms of the stipulation and agreed to it. Based on this record, the district court did not abuse its discretion by refusing to vacate the stipulation. See Kornberg v. Kornberg, 542 N.W.2d 379, 387 (Minn. 1996) (affirming denial of relief from judgment where record could support court's finding that stipulation was not result of mistake and party was represented throughout extensive negotiations); cf. Egge v. Egge, 361 N.W.2d 485, 489 (Minn. App. 1985) (reversing court that granted relief from judgment under court's inherent power where party that sought relief argued that result of stipulation was not what parties intended but failed to establish mistake, duress, or fraud to justify relief).

If this court were to require the trial court to vacate the stipulation in this case, we would be building an unacceptable frailty into the process involved in so many dissolution actions; a process in which hours and sometimes days of negotiation are concluded with a stipulation being read into the record, an agreement of the parties being preserved on the record, and one of the parties withdrawing and acquiescing in the other party going forward to "prove up as by default" the statutory requirements. If, as here, the protections set forth in such cases as Tomscak are observed and the recorded stipulation is faithfully reproduced in the proposed findings of fact, conclusions of law, order for judgment, and judgment and decree presented to the trial court for entry, there should be extreme caution and reluctance on the part of the trial court to grant a motion to vacate.

Affirmed.

[ ]1The stipulation also indicated that:

Notwithstanding the language of Minn. Stat. § 518.641, the Court is divested of jurisdiction to award an increase in the amount of maintenance by more than the cost-of-living adjustment by making further findings.

See Karon v. Karon, 435 N.W.2d 501 (Minn. 1989).

[ ]2Appellant was awarded ownership of $100,000 in life insurance under which respondent was the insured and appellant was permitted to change the beneficiaries. Respondent was not required to provide any insurance on his life with appellant as the beneficiary.