This opinion will be unpublished and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:

Lynette Rae Pepin, petitioner,



Ronald Michael Pepin,


Filed June 30, 1998


Crippen, Judge

Fillmore County District Court

File No. F497175

Thomas M. Manion, Jr., 600 Kenilworth Avenue South, Box 420, Lanesboro, MN 55949 (for respondent)

Mark W. Benjamin, Parker, Satrom, O'Neil & Benjamin, P.A., 123 South Ashland, Cambridge, MN 55008 (for appellant)

Considered and decided by Crippen, Presiding Judge, Davies, Judge, and Harten, Judge.



Appellant Ronald Pepin contends that he is entitled to relief from provisions of a default judgment. We affirm the trial court's denial of appellant's motions for a new trial, amended findings, and vacation of the judgment.


The parties married in 1975 and divorced in 1990. The divorce judgment places physical custody of the parties' children with respondent and requires appellant to pay $928.16 per month in child support. In July 1997, the trial court entered a default judgment against appellant that required him to pay $7,100.42 in retroactive child support and $1,462.08 in attorney fees. Later that month, appellant filed motions for a new trial, amended findings, attorney fees, and for vacation of the default judgment. The trial judge denied all of appellant's motions and awarded respondent an additional $750 in attorney fees. Appellant appeals from the order denying his motions.


Appellant is fundamentally mistaken in challenging the merits of the trial court's default judgment by making reference to evidence produced in post-hearing motion proceedings. Appellant did not appeal from the judgment. He is entitled to relief from the judgment only insofar as he has shown cause for vacating the default judgment or for like relief.

1. Excusable neglect.

Absent an abuse of the trial court's discretion, we will not reverse its denial of motions for a new trial or for vacation of the default judgment. Foerster v. Folland, 498 N.W.2d 459, 460 (Minn. 1993) (default judgment); Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990) (new trial).

Appellant contends that his motions (under Minn. Stat. 518.145, subd. 2 (1996)) for vacation or a new trial were wrongfully denied. On appeal, appellant contends that he is entitled to this relief because he successfully showed that his default was due to excusable neglect.[1] The trial court did not abuse its discretion in denying appellant's motions.

Appellant explains that he did not open the mailing that contained notice of respondent's modification motion because he did not want anything more to do with this case. This purported excuse is unsatisfactory. Appellant was personally at fault in failing to appear to contest respondent's motion. See Howard v. Frondell, 387 N.W.2d 205, 208 (Minn. App. 1986), ("Neglect of the party itself which leads to entry of a default judgment is inexcusable.") review denied (Minn. July 31, 1986). Appellant is not entitled to relief under the "excusable neglect" provision.

2. Amended findings.

Appellant disputes the trial court's determination that his motion for amended findings was untimely. Without examining the timeliness question, we observe that the motion fails to state a lawful cause for relief; appellant sought amended findings on the basis of evidence submitted with his motion, not on the record that first prompted the trial court's findings. Rathbun v. W. T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974) (stating that motion for amended findings cannot be based on new evidence or evidence not of record). On the record before it, the trial court's findings were not clearly erroneous. Minn. R. Civ. P. 52.01.

3. Retroactive award.

Appellant contends that the trial court erred in its original order in making a retroactive award. This issue is not properly before this court because appellant did not appeal from the default judgment and the issue was not raised in his post-judgment motions. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (generally, this court will not consider matters not raised and decided by the trial court).

4. Attorney fees.

Appellant challenges the trial court's award of attorney fees to respondent, contending that the court failed to make findings to support its award. The trial court has broad discretion to award attorney fees. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). Under Minn. Stat. 518.14, subd. 1 (1996), the court may in its discretion award fees against a party who "unreasonably contributed to the length and expense of the proceeding." Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991) ("Fee awards under Minn. Stat. 518.14 may be based on the impact a party's behavior has had on the costs of the litigation regardless of the relative financial resources of the parties."). Here, the trial court made detailed findings explaining how appellant's failure to disclose his tax records contributed to the costs of these proceedings. Thus, we find that the trial court did not abuse its discretion in awarding fees to respondent.


[1] Appellant also stated a claim of fraud in his petition to the trial court for post-hearing relief, but that claim has not been stated on appeal.