This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Marriage of:

Christine K. Howard, petitioner,



Timothy E. Howard,


Filed January 6, 1998

Reversed and Remanded

Davies, Judge

Cass County District Court

File No. F6-96-1168

John E. Valen, P.O. Box 1105, Walker, MN 56484 (for respondent)

Victor H. Smith, P.O. Box 160, Walker, MN 56484 (for appellant)

Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Willis, Judge.



Appellant Timothy E. Howard challenges the denial of his motion to vacate a default judgment awarding child custody and all marital assets to his former wife, respondent Christine K. Carter (f/k/a Howard). He also appeals the denial of his request for attorney fees and his motion for an evidentiary hearing on his allegations of fraud and fraud on the court. Because there is uncontested evidence showing that Carter's acts prevented Howard from filing an answer to the dissolution petition and because the trial court failed to grant Howard's motion to vacate, we reverse and vacate the default judgment.


The Howards were married in 1981. Timothy Howard (Howard) was personally served with the dissolution petition on October 22, 1996, while the couple still lived together. He brought the petition home with him and alleges that, when he asked his wife about the dissolution proceeding a few days later, she said she intended to drop it. Howard also asserts that his wife stated she had burned the papers because she had no intention of going forward with the dissolution. Carter denies both of these allegations.

It is undisputed, however, that Howard visited the Cass County Courthouse to verify that his wife had terminated the dissolution proceeding and was told by a deputy in the court administrator's office that there was no open court file. Howard did not engage counsel or file an answer to the petition.

Carter subsequently filed the dissolution petition with an affidavit of no answer and, on January 6, 1997, a default hearing was held. Howard did not appear and was not represented by counsel. Carter appeared with counsel. The district court granted Carter's petition to dissolve the marriage, awarded sole legal and physical custody of the couple's three children to Carter, ordered Howard to pay child support of $240 per month retroactive to October 15, 1996, and awarded all marital property to Carter. The court also ordered Howard to show cause why he should not be required to obtain employment to provide for the support of his children.

It is uncontested that Howard received no notice that a default hearing was set for January 6, 1997, and that on the day of the hearing Carter told a former co-worker that Howard was unaware of the proceeding.

On January 10, 1997, Carter informed Howard that they were now divorced and that he should move out immediately. Howard never received a copy of the default order and judgment.

Howard filed a motion to reopen the default judgment on the grounds of fraud and fraud on the court. Later, he filed an amended motion requesting that the default judgment be vacated (except for dissolution of the marriage) or, in the alternative, that an evidentiary hearing be held to establish fraud or fraud on the court by Carter. He also requested bad faith attorney fees, temporary attorney fees, and the appointment of a guardian ad litem. He also asked for a hearing to determine temporary visitation, child support, and temporary occupancy of the Howards' home.

The district court heard arguments on Howard's motion and received written evidence. It denied Howard's motion to vacate and denied attorney fees, but did not rule on his other requests. Howard appeals.



The standard of review for the denial of a motion to vacate a marital dissolution judgment is abuse of discretion. Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996). The district court may relieve a party from a judgment and may order a new trial on several grounds, including "(1) mistake, inadvertence, surprise" or "(3) fraud * * * or other misconduct of an adverse party." Minn. Stat. § 518.145, subd. 2 (1996). Further, a court may set aside a judgment for "fraud upon the court." Id. Howard's motion was filed well within the one-year statutory time limit. See id. (setting time limits for motions to reopen).

In light of the evidence, the district court's denial of Howard's motion to vacate was an abuse of discretion under the mistake and fraud provisions of Minn. Stat. § 518.145, subd. 2. Because of Carter's fraudulent conduct, Howard had a reasonable but mistaken belief that no dissolution action was pending.

At the hearing on vacation, Howard submitted undisputed evidence regarding Carter's previous abuse of their children. In child custody proceedings, Minnesota law requires the court to appoint a guardian ad litem if the court has reason to believe that children are victims of domestic abuse or neglect. Minn. Stat. § 518.165, subd. 2 (1996).

Further, on this record, the district court's award of child support to Carter for the period of October 15, 1996, to January 10, 1997, was an abuse of discretion because the record shows the couple was living together during that time.

Finally, Howard alleges fraud on the court by Carter. Because we reverse on other grounds, it is not necessary to determine whether Carter's conduct constituted fraud on the court.


In the district court, Howard moved for temporary attorney fees under Minn. Stat. § 518.14, subd. 1 (1996). The denial of attorney fees under Minn. Stat. § 518.14 is reviewed for abuse of discretion. Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977).

The district court's order denying attorney fees to Howard appears to be predicated on the trial court's mistaken belief that Howard was not making a "good faith assertion" of his rights. Because we have concluded that Howard was acting in good faith, the district court's decision to deny attorney fees was, under the facts of this case, an abuse of discretion.

Howard has also requested an award of appellate attorney fees from Carter under Minn. Stat. § 518.14. Howard is granted $2,500 in appellate attorney fees because this appeal was necessitated by Carter's fraud. We deny Carter's request for appellate attorney fees.

The district court's order denying Howard's motion to vacate is reversed and the matter remanded with directions to the district court to vacate the January 6, 1997, default dissolution judgment on all issues except the dissolution of the Howards' marriage. The court must also appoint a guardian ad litem for the children.

Reversed and remanded.