This opinion will be unpublished and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:

William Ernest Hemp,



Helen Ileene Hemp,


Filed July 21, 1998


Randall, Judge

Anoka County District Court

File No. F9-96-10620

John Hugh Gilmore, 64 West Delos Street, St. Paul, MN 55107 (for appellant)

Kathryn A. Engman, Nordaune & Friesen, 1040 Interchange Tower, 600 South Highway 169, St. Louis Park, MN 55426 (for respondent)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.



Appellant William Hemp challenges the district court's denial of his motion to amend or vacate the stipulation that formed the basis for the dissolution decree. Appellant argues that his attorney misinformed him regarding the nature of pretrial proceedings and of his right to object to the stipulation, rendering his consent invalid due to mistake of fact. We affirm.


Appellant William Hemp and respondent Helen Hemp were separated on April 1, 1996. Appellant filed for dissolution, and trial was scheduled for May 1, 1997. A pretrial hearing was held on April 11, 1997. Prior to the hearing, counsel for both parties met with the judge in chambers. In the hours that followed, extensive negotiations took place, covering issues of health insurance, spousal maintenance, life insurance security, division of the homestead, real estate interests, retirement interests, vehicles, personal property, debts, attorney fees, and income taxes. The attorneys negotiated between the parties, who remained separated because of a previously issued order of protection. Agreement was reached on all issues and the hearing proceeded.

The district court instructed the parties to ask any unresolved questions and to inform the court if they did not understand or disagreed with the terms of the agreement because it would be final when they left the courtroom. The agreement was read into the record. Respondent asked several questions; appellant asked none. Questioned by his counsel, appellant stated that he understood the terms of the agreement, that it was final, and that he was willing to be bound by it. Respondent consented to the agreement after questioning by her counsel. The parties then agreed to memorialize the agreement by executing a stipulated judgment and decree.

Respondent executed the stipulated judgment and decree on June 4, 1997. Appellant refused to execute the stipulated judgment and decree or to allow his attorney to submit it to the court. Respondent sought entry of the judgment and decree and a hearing was scheduled for July 22, 1997. Appellant did not challenge the stipulation at any time between the pretrial and the July 22 hearing. The district court signed the judgment and decree and entered judgment on July 11, 1997.

At the July 22 hearing, appellant, represented by new counsel, orally informed the court that he planned to file a motion to reopen the decree. On August 4, 1997, appellant filed a motion seeking to vacate the stipulation and the judgment and decree and requesting amended findings of fact or a new trial. The matter was heard on September 26, 1997. Appellant claimed he did not understand the agreement as read into the record. He asserted that his attorney told him that the homestead and maintenance issues were decided before the pretrial hearing and that he could not reject the decisions made there. He claimed that his attorney told him that he would be held in contempt of court if he spoke at the pretrial hearing. He further asserted that the negotiations took place without his presence. Appellant argued that his consent was, therefore, based on mistake and that the stipulation and subsequent judgment should be vacated. At minimum, he requested an evidentiary hearing to prove mistake of fact. The district court noted that appellant's subjective affidavit was the only evidence presented to back up his claims and measured it against the objective record of his pretrial consent to the stipulation. The district court determined that appellant had failed to make a prima facie showing sufficient to grant relief and denied the motion. Appellant now appeals.


An appellate court reviews a district court's decision refusing to vacate a stipulation under an abuse of discretion standard. Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984). Stipulations are favored as a means of expediting and simplifying litigation, especially in dissolution cases. Id. Stipulations may be vacated for fraud, duress, or mistake. Id. Once a judgment and decree is entered, however, the stipulation is merged into the judgment and decree and cannot be attacked by a party seeking relief from the judgment and decree. Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997). This is because when a judgment and decree is entered based on a stipulation, the dissolution is "complete and the need for finality becomes of central importance." Id. "The sole relief from the judgment and decree lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2 [(1996)]." Id. (footnote omitted).

A party may be relieved of a judgment and decree for mistake, inadvertence, surprise, or excusable neglect or for fraud, misrepresentation, or misconduct by the adverse party. Minn. Stat. § 518.145, subd. 2(1), (3) (1996). Whether a mistake occurred in giving consent to a stipulation is a question of fact for the district court. See Hafner v. Hafner, 237 Minn. 424, 431, 54 N.W.2d 854, 858 (1952) (stating whether wife mistakenly consented to stipulation was question of fact). A district court's findings of fact will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.

Appellant argues that the stipulation underlying the judgment and decree must be vacated because it was based on mistake of fact. He claims that he "radically misunderstood" what the stipulation proposed; he did not know what, if any, issues remained open to negotiation; his attorney gave him erroneous information, leading him to believe that he had lost all the issues important to him and that he could no longer object; he failed to realized that everything had been resolved at the pretrial hearing; and no negotiations took place and he was not present when other negotiations took place. Appellant insists that his consent was nothing more than a rote recitation of what his attorney told him to say and that the judge never spoke to him personally about his understanding of the agreement or asked him for his consent. Appellant argues that no meeting of the minds took place and that his statements and consent in court were based on mistakes of fact. After careful search of the trial court record, we disagree.

As the district court found, appellant failed to present any evidence rising to the level of a prima facie showing that any of the factors in section 518.145, subdivision 2 applies to this case. During the hearing on his motion, and despite being warned by the district court that the subjective assertions in his affidavit were insufficient, appellant did not present any objective evidence to support or corroborate the assertions contained in his affidavit. Respondent's effort to depose appellant's former attorney was unsuccessful because appellant refused to waive the attorney-client privilege. Although claiming that he was willing to and did waive the privilege at the motion hearing, appellant failed to secure his former attorney's presence nor did he seek her affidavit or deposition. In reaching its decision, the district court weighed the available objective evidence before it, namely, appellant's testimony at the pretrial hearing given under oath that he understood, agreed to, and had no questions regarding the stipulation to the agreement. The district court did not abuse its discretion in refusing to vacate the judgment and decree.

Appellant also argues that he is entitled to have the stipulation underlying the judgment and decree vacated under the four-part test articulated in Kroeplin v. Haugen, 390 N.W.2d 872 (Minn. App. 1986), review denied (Minn. Sept. 25, 1986). The Kroeplin test asks whether (1) competent counsel represented the challenging party; (2) extensive and detailed negotiations occurred; (3) the party agreed to the stipulation in open court; and (4) when questioned by the district court, the party acknowledged understanding the terms of the agreement and considering them fair and equitable. Id. at 875. Relying on Shirk, the district court properly found the Kroeplin test applicable only to stipulations challenged before the judgment and decree was entered. See Shirk, 561 N.W.2d at 522 (once judgment and decree entered, stipulation forming basis of judgment and decree cannot be attacked). However, the district court went on to conclude that even if the Kroeplin factors were applicable, appellant would still not prevail. We agree.

As the district court found, appellant failed to present any objective evidence to support his claim that he received misinformation from his attorney. The record shows that even though the district court told the parties to ask any questions needed to clarify terms and to object if they disagreed with any terms of the agreement, appellant did nothing. The district court noted that the transcript showed between five and six hours of extensive negotiations on issues of health and life insurance, the homestead, maintenance, and the division of personal property. The district court noted a total lack of evidence to support any claim that the negotiations did not occur or that appellant was prevented from taking part. The only objective evidence presented was the transcript of the pretrial hearing, in which appellant stated on the record and under oath that he understood and agreed to the terms of the stipulation. Thus, we conclude that even if the Kroeplin factors applied to the present case, the district court did not err in refusing to vacate the stipulation.

On appeal, respondent requests need-based attorney fees pursuant to Minn. Stat. § 518.14, subd. 1 (1996). This court may award attorney fees on appeal. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989), review denied (Minn. June 21, 1989). Under Minn. Stat. § 518.14, subd. 1, a court shall award attorney fees and costs if it finds that the fees are necessary for the good faith assertion of the party's rights, the party from whom fees and costs are sought has the means to pay them, and the party seeking fees and costs does not have the means to pay them. Id. Respondent argues that she does not have the means to pay her attorney fees, appellant is able to pay, and that appellant's appeal "has no justifiable basis." In support of her claim, respondent relies on the district court's findings in the judgment and decree that appellant's net monthly income is $3,140 per month and that hers is $1,275. Respondent states that at the time of the hearing on appellant's motion to vacate the stipulation, she was receiving a disability income of $700. Although respondent's attorney submitted an affidavit detailing the time she spent responding to appellant's appeal, respondent failed to provide this court with current financial information on her income and reasonable expenses. See Gales v. Gales, 553 N.W.2d 416, 423 (Minn. 1996) (declining to award reasonable attorney fees where movant failed to provide "current information on her income and expenses"). We therefore decline to award her need-based attorney fees on appeal.