This opinion will be unpublished and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:

Grace Lee Morris, petitioner,



Harry Webster Morris,


Filed June 23, 1998


Huspeni, Judge

Hennepin County District Court

File No. DW229137

Rachel B. Rosen, Maury D. Beaulier, Brehmer & Rosen, P.L.L.P., 5001 W. 80th St., Suite 745, Bloomington, MN 55437 (for appellant)

William J. Hanley, Mark V. Lofstrom, Lowry Hill Law Offices, 1900 Hennepin Ave. S., Minneapolis, MN 55403 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Willis, Judge.



Appellant challenges both the district court's findings of fact and the propriety of the default judgment it issued to dissolve the parties' marriage. Because appellant may not raise factual issues to this court that were not raised before the district court and because appellant did not seek to have the judgment reopened under Minn. Stat. § 518.145, we affirm.


Appellant Grace Morris, now 57, and respondent Harry Morris, now 78, were married in 1976. They separated in 1990; respondent moved out of their homestead but continued to make mortgage payments, tax payments, and insurance payments. When appellant vacated the homestead in 1995, respondent returned to it.

After appellant served her petition and respondent served his answer and counter-petition, a "Divorce with Dignity" hearing was scheduled. Appellant's attorney did not appear because of a scheduling problem, and the hearing was continued. Appellant's attorney was also unable to attend the continued hearing, but a substitute attorney attended with appellant.

The district court then found that the matter "needs to be continued to a time when [appellant's lead attorney] is available[,]" continued the matter to July 16, 1997, "at which time the parties are ordered to appear before this Court[,]" and ordered that "[i]f either party does not appear * * * the other party will be permitted to proceed by default."

Appellant did not appear at the July 16 hearing; her attorney explained that appellant had gone to Seattle to attend to a sick daughter and lacked the funds to return.

The court said that, notwithstanding appellant's absence, it would permit respondent to proceed with the dissolution, but because of "some disagreement about the terms of this divorce" and the lack of appellant's input, entry of judgment would be stayed for 30 days to give appellant's attorney a chance to talk with her client and seek vacation or reopening. The court reserved spousal maintenance, awarded respondent his car, his Teamster Union Pension, and the homestead, in which there is negative equity, awarded each party the personal property then in that party's possession, and ordered that each party pay the debts incurred by that party since the separation.

The decree was signed on July 29, entered on August 12, and served on appellant's attorney on August 15. On October 28, 1997, appellant filed a notice of appeal, challenging the findings of fact and the propriety of the default judgment.[1]


As a threshold matter, we note that this appeal is only from the findings of fact, conclusions of law, order for judgment, and judgment and decree. This court may consider only evidence in the record and may review only issues presented to the trial court. Thorp Loan & Thrift Co. v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990). Thorp concluded that on an appeal taken directly from a default judgment where no motion to vacate had been filed, an appellant could obtain review of two issues: whether the complaint stated a cause of action and whether the relief granted was justified by the complaint.[2] However, the appellant in Thorp was denied review of issues not submitted to the trial court and of facts asserted in the complaint that had not been challenged before the trial court. Id. Therefore, we may review the findings of fact and the propriety of the default judgment, providing the issues raised here were raised to the district court and no new evidence is presented here. Findings of fact are set aside only if clearly erroneous. See Minn. R. Civ. P. 52.01. Conclusions of law are reviewed de novo. See Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

1. Findings of Fact

Appellant first challenges the findings that respondent purchased the homestead in 1972 and it was not, therefore, a marital asset; that respondent had paid the mortgage payments, improvements, and utilities with nonmarital income; and that appellant had not contributed to the equity in the homestead. But appellant is precluded from challenging these findings on appeal because they are all based on assertions made in respondent's counter-petition and on respondent's testimony that he owned the house. At the hearing, appellant's attorney neither offered evidence opposing the assertions nor cross-examined respondent to disprove them. Challenges based on evidence not submitted to the trial court may not be made to this court. Thorp at 363.

Similarly, appellant may not challenge the award made to each party of the property in that party's possession at the time of dissolution or the order that each party pay its own debts incurred since the separation. Appellant's attorney offered no evidence refuting the property award, and respondent's testimony that there had been no joint debt since 1990 was uncontroverted. Appellant is not entitled to challenge these determinations on appeal.[3]

Finally, appellant claims that "throughout the proceedings" she contested evidence supporting the court's findings as to her credit card fraud, her forging of respondent's name on a power of attorney, and her use of respondent's homestead as collateral to secure a loan, but she cites to no part of the record demonstrating that she contested this evidence.[4] See Minn. R. Civ. App. P. 128.03 (factual assertions in briefs must be supported by cite to record). Absent any indication in the record that these issues were contested before the district court, they are not properly before this court.

2. Propriety of the Default Judgment

Appellant correctly cites Peterson v. Eishen, 512 N.W.2d 338, 341 (Minn. 1994), for the proposition that "[t]he appropriate method to seek review of a default judgment in a marriage dissolution proceeding is to move the trial court for relief under Minn. Stat. § 518.145 (1994) [providing that a court may relieve a party from judgment and decree in a dissolution for any one of five reasons, among them excusable neglect]." Appellant, however, has yet to seek review under this statute: her motion to vacate does not refer to it.[5]

At the hearing on July 16, 1997, appellant's attorney said: "We object to this default judgment going today." Appellant's arguments that this statement was "an oral motion to reconsider during a `proceeding' contemplated under Minn. Stat. § 518.145, subd. 2," and that the motion was denied by the district court, are unpersuasive. Appellant's attorney never used the words "motion" or "reconsider"; at the time the statement was made, there was no judgment to reconsider; and in any event, the absence of a district court ruling on the motion means there is nothing to review.

Appellant may not challenge facts in this court that she did not challenge before the district court, nor may she seek review of the denial of a motion to reconsider a default judgment when no such motion was ever brought, much less denied.

We therefore affirm the default judgment.


[1] In the statement of the case submitted with her notice of appeal, appellant states that she was unable to have a motion to vacate heard and decided before the end of the 90-day period for appealing from the judgment and decree of dissolution. Because a motion to vacate is not among the motions whose pendency precludes an appeal pursuant to Minn. R. Civ. App. P. 104.04, subd. 2, her appeal was not premature.

[2] Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 491 (Minn. App. 1995), which both parties cite for the standard of review, is distinguishable because that case involved an appeal from both a default judgment and the denial of a motion to vacate.

[3] Appellant also claims the court "declined to award spousal maintenance"; however, since the court specifically reserved spousal maintenance, this is not an issue.

[4] We note that in any event the court's property distribution and debt allocation do not depend on these findings: they are independently supported by the findings relative to the homestead, the marital property, and the parties' debt.

[5] Appellant claims she filed an earlier motion to vacate in August; however, the record contains only the October motion.