This opinion will be unpublished and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

C5-96-2471

In Re the Marriage of:

Karen A. Dupree, petitioner,

Respondent,

vs.

James B. Dupree,

Appellant.

Filed May 6, 1997

Affirmed

Mansur, Judge

[*]

Hennepin County District Court

File No. DC 207496

Karen A. Dupree, 10824 France Avenue, Bloomington, MN 55431 (Respondent Pro Se)

Eileen T. Bergmann, Peter H. Watson & Associates, P.A., 1960 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Mansur, Judge.

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

MANSUR, Judge

Appellant alleges that the district court abused its discretion by proceeding with the marital dissolution as a default and by making findings unsupported by the evidence. The district court did not abuse its discretion by failing to vacate the parties' stipulation regarding the terms of their marital dissolution. We affirm.

FACTS

On October 24, 1994, respondent Karen A. Dupree (mother) filed a petition for dissolution of the parties' marriage. Initially, the parties agreed to participate in the Divorce with Dignity program; however, after several failed attempts at resolution through the Divorce with Dignity program, the case was withdrawn from the program and placed on the regular court calendar. The parties were proceeding pro se, although they previously had been represented by counsel.

The parties went through several pretrial conferences with Judge Anderson and her law clerks in an attempt to set the terms of their dissolution. With the assistance of Judge Anderson and her law clerks, the parties negotiated and stipulated the terms of their dissolution, including: the children's custody and visitation; spousal maintenance; property division; and that appellant James B. Dupree (father) would proceed with the dissolution in default. The parties confirmed their stipulations on the record with the court.

Based on the parties' stipulations, the district court issued findings of fact, conclusions of law, and order for judgment and decree dissolving the parties' marriage, granting mother sole physical custody of the parties' children, setting visitation, granting spousal maintenance and dividing marital property. On appeal, father alleges that the district court abused its discretion by proceeding with the dissolution as a default when the parties were not in agreement. Father alleges that the district court abused its discretion by making findings which are unsupported by the evidence.

D E C I S I O N

To the extent that father argues that the court made findings contrary to the evidence at trial, this is not an issue properly on appeal. Father stipulated to proceeding by default and the district court dissolved the parties' marriage and set the terms of the dissolution based on the parties' stipulations, not on evidence presented by the parties. Therefore, father's motion for amended findings or a new trial was without basis because there was never a trial. See Parson v. Argue, 344 N.W.2d 431, 431 (Minn. App. 1984) (if there never was a trial, motion for new trial an anomaly). Nonetheless, the district court addressed father's motion for amended findings or a new trial, ordering that "[father's] Motions to amend the Judgment and Decree are denied in their entirety."

Father should have framed the issue on appeal as whether the district court abused its discretion by refusing to vacate the stipulation. See Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984) ("Upon appeal a trial court's determination whether or not to vacate a stipulation will not be disturbed in the absence of an abuse of discretion."). Courts may set aside parties' stipulations upon finding fraud, duress, or mistake. Id. In determining whether a district court abused its discretion by denying a motion to vacate a stipulation, this court must examine four factors: (1) whether the party was represented by competent counsel; (2) whether extensive and detailed negotiations between the parties occurred; (3) whether the party agreed to the stipulation in open court; and (4) whether the judge questioned the party regarding his or her understanding of the terms and whether the party considered them fair and equitable. Glorvigen v. Glorvigen, 438 N.W.2d 692, 695-96 (Minn. App. 1989). The dispositive inquiry on appeal is whether there was substantial compliance with each factor. Id. at 696.

1. Competent counsel.

Neither party was represented by counsel during the negotiations which led to the stipulation regarding the terms of their dissolution. The fact that father was previously represented by counsel indicates his awareness that legal help would have been beneficial in these proceedings. Moreover, the record reveals that father chose to represent himself in this matter. Father stated that he could not afford an attorney and had tried to seek counsel to represent him without cost but that he made too much money. Father confirmed to the district court that he understood everything that had been discussed, even without the assistance of counsel.

In Glorvigen, we stated that it is not necessary for the aggrieved party to have been represented by counsel at the time of the stipulation; rather, all that is necessary is a knowing and voluntary waiver of counsel. Id. Father waived his right to answer and counterpetition and stipulated to proceeding by default. Although father alleges that the district court forced the parties into a default dissolution, father points to no evidence of duress by the district court. Indeed, the record, the order, and the transcript indicate that the district court went to substantial lengths to resolve the issues surrounding the parties' dissolution in a fair manner. Under these circumstances, the record before this court supports the determination that father knowingly and voluntarily waived his right to representation.

2. Extensive and detailed negotiations.

There is no transcript of the negotiations between the parties. The district court's order, however, indicates that the stipulations regarding the issues of the dissolution were reached "[a]fter substantial thought and protracted negotiations with the assistance of the Court."[1] Similarly, the transcript recording the execution of the parties' stipulations reveals that

on a number of occasions the Court has had an opportunity to talk with the parties regarding resolution of their case and has provided the assistance of the Court's clerks to mediate with the parties to attempt a resolution of the various issues before the Court relating to their dissolution.

The court further observed that

[a]fter many, many hours of consultation with the Court's clerk -- clerks, and with the Court, the parties have, I believe, reached a resolution of all matters relating to their dissolution and are in agreement that the Court should accept the agreement as of today's date * * * .

This information indicates that the terms of the parties' dissolution stipulation were reached after extensive and detailed negotiations. Therefore, the district court substantially complied with this factor.

3. Agreement by the party to the stipulation in open court.

Father communicated his agreement to the parties' stipulation in open court. During the hearing recording the parties' stipulations, Judge Anderson asked, "Mr. Dupree, do you feel that the Court and the Court's clerks have accurately indicated for the record the terms that we've discussed and agreed to?" Father answered, "Yes."

4. Formal expression to the judge of understanding and acknowledging the terms as fair.

Initially, father said that he did not believe the terms of the stipulations were fair. Judge Anderson advised father that the court could not accept the parties' stipulations if this was the case. Judge Anderson explained to father that when concessions are made, such as in this case, parties must give up certain things. Judge Anderson asked father if it was his desire to have the case resolved and effective by July 1, 1996. Father said he wanted the case resolved that day. Judge Anderson then asked him again whether under the circumstances, considering his desire to have the case resolved that day, was it a fair resolution. Father stated that it was. Judge Anderson confirmed father's answer, asking that "you understand that this is a final agreement of all of the matters involved in your case. It will be final as of today." Father indicated that he understood. This record demonstrates that the district court substantially complied with this factor.

The dissolution decree was based on the parties' stipulations and those stipulations were not a result of fraud, duress, or mistake. The district court complied substantially with each of the above Glorvigen factors. Therefore, the district court did not abuse its discretion by refusing to vacate or amend the judgment and decree.

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 The record indicates that the court had the parties meet with members of her staff in prehearing conferences. We appreciate the court's desire to be of assistance and resolve the case. However, this case vividly demonstrates the problems which can result from this practice. Therefore, in the future, we urge its discontinuance.