This opinion will be unpublished and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

C7-96-2150

In Re the Marriage of:,

Janet Marie Donnelly, petitioner,

Respondent,

vs.

Michael F. Donnelly,

Appellant.

Filed June 24, 1997

Affirmed

Randall, Judge

Dakota County District Court

File No. F1-93-14286

John G. Westrick, Kari L. Clark, 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

Louis M. Reidenberg, Ellen E. Barton, 625 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402-1887 (for respondent)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Holtan, Judge.[*]

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

RANDALL, Judge

Appellant, Michael F. Donnelly, challenges the trial court's refusal to dismiss this dissolution for lack of jurisdiction where respondent, Janet Marie Donnelly, died after the parties' marriage was dissolved but before a judgment had been entered finally adjudicating property issues. We affirm.

FACTS

The parties read a dissolution stipulation into the record. The stipulation awarded the pension account of the family business to respondent and required appellant to repay unspecified amounts to the account. The parties later disputed portions of the stipulation, including the amount appellant would repay the account. The nonpension issues were settled and the trial court dissolved the marriage, reserved all property issues, and ruled respondent waived maintenance. Respondent died before a hearing occurred on the amount appellant would repay the pension account. Her personal representative (PR) sought to be substituted for respondent in the proceeding. Appellant moved to dismiss, claiming respondent's death deprived the trial court of jurisdiction over the case. The trial court granted the PR's motion, did not address appellant's motion, and set an evidentiary hearing on the pension issue. This appeal follows.

D E C I S I O N

1. Generally, if a party dies during a proceeding to dissolve a marriage, the proceeding abates and a judgment cannot be entered thereafter unless the party seeking the judgment was entitled to it while both parties were alive. Tikalsky v. Tikalsky, 166 Minn. 468, 468, 208 N.W. 180, 180 (1926). The trial court's granting of the PR's motion to be substituted for respondent in the dissolution proceeding functionally denied appellant's motion to dismiss for lack of jurisdiction. Orders denying pretrial motions to dismiss for lack of jurisdiction are appealable as of right. In re State & Regents Bldg. Asbestos Cases, 435 N.W.2d 521, 522 (Minn. 1989) (citing Hunt v. Nevada State Bank, 285 Minn. 77, 172 N.W.2d 292 (1969). A trial court's jurisdictional ruling is reviewed de novo. Smith v. Smith, 508 N.W.2d 222, 224-25 (Minn. App. 1993).

2. Appellant claims that the parties' stipulation is not enforceable because the parties lacked a "meeting of the minds" on, and had abandoned, the terms of the stipulation. See Pekarek v. Wilking, 380 N.W.2d 161, 163 (Minn. App. 1986) ("[F]or a stipulation to stand, 'a meeting of minds on the essential terms of the agreement' must have occurred.") (quoting Ryan v. Ryan, 292 Minn. 52, 55, 193 N.W.2d 295, 297 (1971)). Therefore, appellant concludes, neither party was entitled to a judgment while respondent was alive and Tikalsky precludes a judgment. We disagree.

Appellant claims that letters of the parties' attorneys show that the parties lacked a meeting of the minds because the letters show the transcript of the stipulation is inaccurate. The parties disagreed about whether respondent's parents would have to co-sign on a loan to refinance the homestead, and disagreed about whether appellant would have to pay taxes and insurance on the homestead. The record, however, shows that appellants attorney admitted the inaccuracy in the transcript and corrected it, that respondent stated her parents agreed to co-sign for the loan to refinance the homestead, and that respondent withdrew her request that appellant pay taxes and insurance.[1]

To the extent appellant claims respondent abandoned the stipulation by proposing a judgment differing from it, we reject that claim. Except for the pension issue, the alleged differences between the stipulation and the proposed judgment are essentially the issues that the record shows the parties resolved.

3. Appellant claims that because the trial court reserved all property issues, rather than only the pension issue, the trial court functionally recognized that the parties lacked a meeting of the minds and that therefore the stipulation cannot be enforced. In dissolution proceedings, stipulations are "accorded the sanctity of binding contracts" and a party cannot set them aside or withdraw from them "except by leave of the court for cause shown." Shirk v. Shirk, 561 N.W.2d 519, 521-22 (Minn. 1997) (quoting Gran v. City of St. Paul, 274 Minn. 220, 223, 143 N.W.2d 246, 249 (1966)). Here, while the trial court's order states it reserved all property issues, the trial court's statements from the bench and its limitation of the hearing to only the pension issue show that the trial court considered all issues resolved except the amount appellant would repay to the pension.[2] Because Shirk and the record support the trial court's position on the binding nature of the stipulation, we conclude the nonpension issues were finally resolved before respondent died.

4. Appellant claims that under Wegge v. Wegge, 252 Minn. 236, 89 N.W.2d 891 (1958), respondent's death abated the dissolution because the property issues were not finally resolved. Because we have concluded that the nonpension issues were finally resolved before respondent died, the question becomes whether the award to respondent of the pension account was unresolved solely because the trial court had not determined the amount appellant had to repay the account. We consider this question in light of a record that shows: (a) the parties stipulated respondent would receive the account; (b) the parties stipulated appellant would repay the account for amounts borrowed from it; and (c) the trial court had adopted the parties' stipulation.

In Wegge, a divorce was granted but judgment was not entered and the wife appealed from the denial of her motion for a new trial. During the appeal, the wife died and husband moved to dismiss the case. The supreme court stated that if a party to a divorce dies pending appeal from an order denying a new trial, "the appeal abates with respect to the marital status but not so far as property interests are concerned." Wegge, 252 Minn. 237, 89 N.W.2d at 891. Because the question here is whether the proceeding was resolved when respondent died and the question in Wegge was what happens if a proceeding is not resolved when a party dies, Wegge is not dispositive. Similarly, because Wemple v. Wemple, 170 Minn. 305, 310, 212 N.W. 808, 810 (1927), does not indicate it involved any degree of resolution of any property issue, we cannot find dispositive its statement that where a party dies while an application to the supreme court is pending for "alimony, suit money and attorney's fees pendente lite," property issues must be litigated as if the case had been filed by those interested in the estate of the deceased.

Citing Anders v. Anders, 170 Minn. 470, 213 N.W. 35 (1927), appellant claims that because the evidentiary hearing required for the pension issue requires more than a ministerial effort by the court, a judgment cannot be entered in this case. See Anders, 170 Minn. at 471, 213 N.W. at 35-36 (refusing to enter dissolution judgment nunc pro tunc because it would require more than a ministerial effort by the clerk where the trial court did not make findings of fact or conclusions of law, or order entry of judgment). The result in Anders was specific to that case and its facts. Anders admits it does not necessarily preclude the entry of judgment when the trial court made no findings or conclusions. See id., 170 Minn. at 472, 213 N.W. at 36 ("[I]f it is ever proper to enter a decree nunc pro tunc without the making of findings and conclusions, before the death of one of the parties, this is not such a case") (emphasis added). The proceeding here, which includes a judgment dissolving the marriage and a stipulation adopted by the court, is incomplete solely because of the lack of a single finding on the amount appellant must repay the pension account. This proceeding is much more developed than the no-findings-and-conclusions scenario in which the Anders court refused to foreclose entry of judgment.

Further, because the missing finding is essentially a finding necessary to invoke the property division to which the parties had stipulated, and which the trial court adopted, our allowing the trial court to make this finding is simply allowing the trial court to enforce or implement a judgment. See Katz v. Katz, 408 N.W.2d 835, 838 (Minn. 1987) (court has continuing jurisdiction to enforce its judgments); Ulrich v. Ulrich, 400 N.W.2d 213, 218 n.2 (Minn. App. 1987) (courts "have the power to implement and enforce specific provisions of a dissolution decree"); Hanson v. Hanson, 379 N.W.2d 230, 233 (Minn. App. 1985) (when parties could not divide property, trial court properly converted one party's property award to cash equivalent and directed payment by other party). The trial court's making the missing finding merely effectuates the judgment to which the parties and the court had already agreed. We conclude that on this record, the trial court's making a simple finding on the amount appellant must repay the pension account is similar to unperformed ministerial functions which do not preclude entry of a judgment. We do not liken this fact situation to one where a broad discretion-making decision, yet to be performed, generally does preclude entry of judgment.

Our conclusion will not discourage, and is consistent with, the idea that bifurcated dissolution proceedings (like the one here) are encouraged in various instances. We understand that a necessary result of a bifurcated proceedings is that partial judgments will be entered at different times. That does make them susceptible to the unique problem arising in this case. But generally, the benefits of a thoughtful bifurcated proceeding to allow parties to decide now, what can be decided now, and to leave for a possible bitter court fight that which cannot be resolved, far outweigh the rare anomaly we face today. See, e.g., Sefkow v. Sefkow, 427 N.W.2d 203, 212 (Minn. 1988) (encouraging bifurcation of dissolution proceedings when custody is "vigorously contested").

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 Appellant also seems to claim that a letter of respondent's parents to the trial court shows respondent was not properly represented by her attorney. Respondent, however, told the trial court that the letter expressed concerns of her parents and not herself, and that she wanted her attorney to continue to represent her.

[ ]2 The judge's statements from the bench make this particularly clear. When the parties read their stipulation into the record, the judge told them the stipulation would be effective when the court adopted it, even though that would occur before the stipulation was reduced to writing. The court then adopted the stipulation. At the November 1995 hearing, the court stated that (a) "[a]s far as I'm concerned, you got a settlement agreement read into the record" and if parties could not reach a written agreement, "I'm just going to draw the Findings of Fact, Conclusions of Law, and Order for Judgment based upon the stipulation that was entered into the record[;]" and (b) "I'm going to set this on for a hearing solely on the issue as to what withdrawals were made from the business [and pension] * * *." At the October 1996 hearing, the judge stated that (a) the repayment issue "was the only issue that was reserved obviously[;]" (b) when he accepted the stipulation "it became the basis for the decree" and that "[t]he only issue that dispute arose out of was [the pension issue] and that's the only issue that was reserved[;]" and (c) the stipulation was "binding" on the parties and that the only remaining question is the repayment issue.