Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Faith Darlene Grekoff, petitioner,
Bradley James Grekoff,
Affirmed as modified
File No. F3964571
Robert M. McClay, McClay-Alton, P.L.L.P., 951 Grand Ave., St. Paul, MN 55105 (for appellant)
Frank F. Munshower, Jr., Skogerboe & Skogerboe, Chtd., 11937 Central Ave. N.E., Blaine, MN 55434 (for respondent)
Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Harten, Judge.
Appellant challenges the district court's denial of his motion to vacate the property settlement portion of his marital termination agreement and refusal to establish a fixed visitation schedule. Because we see no abuse of the district court's discretion, we affirm as modified.
Appellant Bradley Grekoff married respondent Faith Grekoff in 1979. The parties have two children, D.J.G., nine, and K.J.G., six. In October 1995, respondent commenced dissolution proceedings and the parties began negotiating a marital termination agreement (MTA). Although respondent retained legal counsel and appellant did not, the parties negotiated without legal representation. Respondent's counsel, however, drafted the MTA.
Appellant began receiving monthly military pension payments prior to the drafting of the MTA. The divorce decree, incorporating the MTA provisions, provided that "[respondent] shall receive fifty percent (50%) of the monthly pension payment under the pension plan." Notably, neither the MTA nor the decree included any value for the pension plan. Instead, the decree reflected appellant's "gross monthly income of approximately $2,750.00 * * * [and] a monthly retirement pension from the United States Air Force in the amount of $771 per month." Appellant's one-half share of the pension was added to his other income in determining his child support and maintenance obligations; respondent's share of the pension was also included in her monthly income.
The MTA also provided that $50,000 in home equity would be awarded to respondent in exchange for her waiver of a potential claim to permanent maintenance, that household goods valued at $20,500 would be divided $16,000 for respondent and $4,500 for appellant, and that there would be a flexible visitation schedule with an agreement to seek third-party resolution of any disputes.
One year after the divorce, appellant moved to vacate the property settlement portion of the MTA and to establish a fixed visitation schedule, arguing that the property settlement was procured through fraud on the court and that mediation did not resolve the parties' visitation disputes. The district court denied appellant's motion.
1. Motion to Vacate
Stipulations are looked upon with favor by the courts, especially in divorce cases. Anderson v. Anderson, 303 Minn. 26, 31, 225 N.W.2d 837, 840 (Minn. 1975). Once a judgment is entered based on a dissolution stipulation, however, the stipulation is merged with the judgment and relief, if at all, "lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2." Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997); see Minn. Stat. § 518.145, subd. 2 (1996) (allowing vacation of a dissolution judgment for fraud on the court).
Appellant argues that the property settlement portion of the MTA gives 95% of the marital property to respondent and only 5% to him, and that such a distribution represents a fraud on the court. We disagree. Proof of fraud on the court in adoption of a marital termination agreement requires a showing of: (1) an intentional course of material misrepresentation or non-disclosure, (2) that results in misleading the court and opposing party, and (3) that renders the property settlement unfair. Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989).
The property settlement in this case is comprised of three elements: (1) appellant's monthly pension income, which was divided equally between the two parties; (2) $50,000 in home equity; and (3) $20,500 in household goods. In arguing that he received only 5% of the marital property, appellant attempts to characterize respondent's share of the pension as property and to characterize his share of the pension as income. Respondent counters by arguing that both shares of appellant's pension should be designated as property. We disagree with both of these characterizations. Both case law and the parties' MTA compel the conclusion that pension payments currently being received are income.
A pension can be considered income or property, but not both. Kruschel v. Kruschel, 419 N.W.2d 119, 122 (Minn. App. 1988). In this case, the MTA states that respondent "shall receive fifty percent (50%) of the monthly pension payment" and "shall include all of the taxable portion" in her gross taxable income. In addition, a December 1, 1995, letter from respondent's counsel to appellant states:
Please note that half of the income generated from your military pension is awarded to Faith and half is included in your net income, and the net result of this is that your income is higher than your paychecks would indicate from your present employment.
It is clear from this letter, and the MTA itself, that appellant's pension was intended to be designated as income.
Removal of the pension from the property settlement leaves only the home equity and the household goods for distribution. Regarding the home equity, the MTA states unambiguously that appellant relinquished the $50,000 in home equity in exchange for respondent's waiver of a claim to permanent maintenance. This was a bargained-for exchange between the parties and there is no evidence of fraud or misrepresentation.
The remaining $20,500 in household goods were divided $16,000 for respondent, and $4,500 for appellant, with each party receiving one motor vehicle. Considering that respondent maintains the homestead at least in part for the benefit of the minor children and that there is no indication that she misrepresented the value of personal property, nothing in this distribution of household goods indicates inequity, much less a fraud on the court.
Appellant does not argue specifically how respondent or her counsel attempted to deceive the court through the MTA. Appellant's pension was divided evenly as income, the equity in the home was given to respondent in exchange for a waiver of a claim for permanent maintenance, and the remaining household goods were divided equitably. Nothing in the MTA indicates an intentional course of material misrepresentation that warrants a finding of fraud on the court. The district court did not abuse its discretion in refusing to vacate the MTA.
The trial court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of discretion. Manthei v. Manthei, 268 N.W.2d 45, 45-46 (Minn. 1978).
The MTA states:
In the event the parties are unable to cooperate and resolve major decisions in relation to their children's lives, they agree to resolve such disputes by seeking the services of a mutually agreeable third party.
Implicit in this agreement to resolve disputes by third-party mediation is the requirement that the parties put forth good faith efforts in reaching a resolution. Appellant argues that the parties tried mediation and were unsuccessful; respondent notes that the parties each attended only one mediation session. Respondent also notes that mediation helped the parties resolve a majority of their issues, but that a final resolution was not complete.
While the parties and the minor children may, indeed, benefit from a structured visitation arrangement, the thrust of the district court's order is to require the assistance of Anoka County Court Services for "visitation mediation or visitation resolution counselling." This directive is consistent with the method of dispute resolution envisioned by the parties in the MTA.
The district court did not abuse its discretion in refusing to create a fixed visitation schedule at this time and in ordering the parties to renew their efforts in mediation.
Affirmed as modified.
 Respondent argues that this appeal is not timely because appellant's brief was delivered by mail "a day or two" after the August 26 deadline imposed by this court. However, respondent does not assert any facts that demonstrate that appellant did not mail his brief by the court-imposed deadline. Minn. R. Civ. App. P. 125.03 ("service by mail is complete on mailing"). As a result, it is presumed that service was timely made by August 26.
 In denying appellant's motion and finding no fraud, the district court designated the pension as property for both parties, adding $80,000 to each party's share of the marital assets. These additions, while not altering the overall asset division, complicated the issues between the parties. In view of our determination that the monthly pension payments should be treated as income, not property, these additions are rejected and the district court's findings are modified accordingly.
 Appellant also relies on an August 1996 amendment of Minnesota law that requires the court to order a specific visitation schedule:
Upon request of either party, to the extent practicable a visitation order must include a specific schedule for visitation, including the frequency and duration of visitation * * *.
Minn. Stat. § 518.175, subd. 1(c) (1996). This law, however, became effective after the parties signed the MTA in April 1996.