This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).




In Re the Matter of:

Bonnie Sue Sherva and Ramsey County,



Kevin Ernest Swanson,


Filed August 26, 1997


Kalitowski, Judge

Ramsey County District Court

File No. PF09250706

Susan Gaertner, Ramsey County Attorney, Sangeeta Jain, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 560, St. Paul, MN 55102 (for respondent Ramsey County)

Timothy C. Theisen, Judicare of Anoka County, Inc., 2150 Third Avenue North, Suite 300, Anoka, MN 55303 (for appellant)

Considered and decided by Huspeni, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.



Appellant challenges the district court's denial of his motion for: (1) retroactive modification of child support; or (2) vacation of the judgment setting child support. We affirm.


A reviewing court will not reverse the district court's findings of fact unless they are clearly erroneous. Minn. R. Civ. P. 52.01. Modification of child support is within the district court's discretion and will not be reversed absent an abuse of that discretion. Hennessy v. Stelton, 302 Minn. 550, 551, 224 N.W.2d 926, 927 (1974). Generally, we review a district court's denial of a motion to vacate a judgment under rule 60.02 under an abuse of discretion standard. See, e.g., Nguyen v. State Farm Mut. Auto. Ins. Co., 546 N.W.2d 37, 38 (Minn. App. 1996) (reviewing denial of motion to vacate for excusable neglect).

As a preliminary matter, respondents argue that because Swanson appeals only the denial of the motion for modification of child support, this court should review only those documents filed before the close of the record for that motion. However, a reviewing court may review any matter as the interest of justice may require. Minn. R. Civ. App. P. 103.04. Here, the district court noted that failure to consider the submissions

which were untimely filed, in part, due to [Swanson's] counsel's failure to act in a diligent fashion on behalf of [Swanson] who receives benefits because of a mental disability, would result in an unfair and prejudicial result to [Swanson] through no fault of his own.

We agree with the district court that justice requires consideration of the additional submissions.


Forgiveness of child support arrearages constitutes retroactive modification of support. Christenson v. Christenson, 490 N.W.2d 447, 449 (Minn. App. 1992), review granted (Minn. Jan. 15, 1993), review dismissed (Minn. Feb. 16, 1993). A court may grant retroactive modification after expressly finding, inter alia, that the party seeking modification was prevented from moving to modify earlier by a significant disability. Minn. Stat. § 518.64, subd. 2(c) (1996).

Here, Swanson was repeatedly hospitalized for depression, suicidal ideation, and chemical dependency between June 1992 and May 1993. The Social Security Administration determined that Swanson was eligible for disability benefits as of June 1993. In August 1996, Scott Bartell, Swanson's counselor at Family Services of St. Paul, opined that Swanson was precluded by disability from moving for modification sooner.

However, Dr. Benner reported in June 1993 that Swanson lived independently and demonstrated no organic mental disorder, schizophrenia, paranoia, or other psychotic disorder, and Swanson failed to document any hospitalizations after the date of Dr. Benner's report. In addition, because Bartell first met Swanson in March 1995, the district court could reasonably give less weight to Bartell's opinion concerning Swanson's disability from 1993 to 1995. On these facts, we cannot say the district court's finding that Swanson was not disabled from 1993 to 1995 was clearly erroneous.

Even if Swanson had been disabled during the relevant period, the district court may grant a retroactive modification only where the moving party shows that his disability precluded him from moving for modification sooner and that he promptly moved for modification upon removal of the disability. Minn. Stat. § 518.64, subd. 2(c). Here, although Swanson's depression and chemical dependency may have limited his ability to hold a job, his frequent work through temporary employment agencies and his earnings from odd jobs show that he was generally able to function. Moreover, because Swanson moved for modification in 1996, it is clear that his disability did not prevent him from doing so at that time; yet he did not show, or even allege, that his condition in 1996 was different from his condition between 1993 and 1995. Based on this record, we conclude the district court did not err in finding Swanson's disability did not preclude him from moving for modification earlier and that the district court did not abuse its discretion in declining to forgive Swanson's arrearages.


Swanson contends the district court erred by not vacating the May 1993 judgment on the basis of fraud or excusable neglect. Respondents argue that this issue is not properly before this court because Swanson failed to raise it in the August 1996 modification hearing. We disagree. Swanson did argue in the district court for vacation of the May 1993 judgment, and the district court addressed Swanson's claim in detail.

Respondents also argue that Swanson's motion to vacate is time-barred. A court may vacate a judgment on the ground of fraud or excusable neglect only upon motion made within one year of entry of the challenged judgment. Minn. R. Civ. P. 60.02. Here, Swanson moved to vacate the May 1993 judgment for the first time in November 1996. Because Swanson failed to move to vacate the May 1993 judgment until more than three years after its entry, we conclude his motion to vacate is time-barred.

Moreover, by its language, rule 60.02(c) applies only to fraud of an adverse party. Here, Swanson has not shown, or even alleged, that respondent engaged in fraud. As a result, even if Swanson's motion to vacate for fraud had been timely, it lacks merit and would have been properly denied.

Swanson cites Blattner v. Blattner, 411 N.W.2d 24 (Minn. App. 1987), review denied (Minn. Oct. 30, 1987), in support of his argument that his alleged disability constituted a fraud upon the court. Blattner is distinguishable from this case. In Blattner, the court vacated a marital dissolution decree because the decree was based on a stipulation that one of the parties signed while taking medication that rendered him incompetent. Id. at 27. Here, Swanson has not shown, or even asserted, that he was incompetent when the May 1993 order was entered into judgment.

Also, Swanson was not entitled to vacation of the judgment for excusable neglect under rule 60.02(a). In order to prevail on a motion to vacate for excusable neglect, a party must show

(a) a reasonable defense on the merits; (b) a reasonable excuse for his or her failure to act; (c) that he acted with due diligence after notice of the entry of judgment; and (d) that no substantial prejudice will result to the opposing party if the motion to vacate is granted.

Nguyen, 558 N.W.2d at 490 (citations omitted). A party must meet all four of these criteria in order to obtain relief under the rule. Id.

Here, Swanson had no reasonable defense on the merits to either the adjudication of paternity or to the amount of child support. Swanson's blood tests showed a 99.52% probability of paternity, L.T.S.'s mother alleged that Swanson is L.T.S.'s father and Swanson presented no evidence that he is not the father. In addition, the district court properly set child support based on Swanson's average net monthly income in 1992 (the last year for which wage information was available at the time of the order setting support) and the child support guidelines.

Courts have found a reasonable excuse under rule 60.02(a) where a party's counsel failed to comply with, or inform the party about, a procedural deadline and thus prevented the party from acting in a timely manner. See, e.g., Nguyen, 558 N.W.2d at 490 (counsel failed to request trial de novo timely); Nelson v. Siebert, 428 N.W.2d 394, 395 (Minn. 1988) (counsel failed to file initial pleadings with court). Here, Swanson was personally served with process, appeared pro se at the initial hearing, was served by mail with notices of the February 1993 adjudication of default hearing and May 1993 child support hearing, and was not hospitalized at the time of those hearings. Swanson was neither uninformed of the dates on which he needed to act, nor prevented by the negligence of counsel from acting in a timely manner. Accordingly, we conclude he had no reasonable excuse for not acting before the entry of the default judgment.

The district court also properly determined Swanson did not act with due diligence after notice of the judgment against him. Although he claims he never received notices of the May 1993 order and judgment, the district court sent them to Swanson at his last known address. The garnishment of his social security checks beginning in 1994 also gave Swanson notice of the child support order and judgment against him.

Because Swanson failed to establish the first three requirements for relief under rule 60.02(a), we need not address whether respondents would be prejudiced by vacation of the judgment.

The court's findings that Swanson was not precluded by disability from moving for modification earlier and that Swanson was not entitled to vacation of the judgment for fraud or excusable neglect were not clearly erroneous. Accordingly, we conclude the district court did not abuse its discretion in denying the motion to forgive arrearages or vacate the judgment setting child support.