This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In Re the Marriage of:

Mark A. Green, petitioner,



Angelique M. Green,


George Beaumaster, et al.,


Dakota County, intervenor,


Filed July 20, 1999


Amundson, Judge

Dakota County District Court

File No. F59616055

Douglas G. Peine, 2600 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 and D. Elizabeth Holt, 14665 Galaxie Avenue, Suite 110, Apple Valley, MN 55412 (for petitioner Mark A. Green)

David L. Brehmer, 5001 West 80th Street, Suite 745, Bloomington, MN 55437 (for respondent Angelique M. Green)

Louise A. Bruce, 214 Highland Office Center, 790 Cleveland Avenue South, St. Paul, MN 55116-1958 (for appellants/intervenors George Beaumaster, et. al)

David A. Jaehne, 60 East Marie Street, #109, West St. Paul, MN 55118 (guardian ad litem)

James C. Backstrom, Dakota County Attorney, James Crow, Assistant County Attorney, 1560 Highway 55, Hastings, MN 55033 (for intervenor Dakota County)

Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Appellants, grandparents George and Mabel Beaumaster, are intervenors in the dissolution of the marriage of their daughter, respondent mother Angelique Green, and respondent father Mark Green. Beaumasters' motion to vacate the stipulated dissolution judgment was denied but mother's motion to reopen the custody portion of the judgment was granted. On appeal, Beaumasters allege (a) they are not bound by the judgment's custody and visitation provisions because they were vacated; and (b) the district court erred in precluding them from participating in the custody trial required by the granting of mother's motion to vacate. Also, the parties moved this court for various relief. We affirm the district court and deny the parties' motions.

1. Beaumasters allege that they are not bound by the custody and visitation provisions in the judgment because those provisions were vacated. The district court did not, however, vacate the judgment's visitation provisions. On appeal, Beaumasters cite no authority for several of their arguments, including their argument that they were entitled to be relieved from the judgment. Because no error is obvious, we need not address these arguments. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (stating "assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection").

The Beaumasters sought relief under Rule 59 and "Rule 60." Because the crux of Beaumasters' motion was what they alleged to be the "recently discovered evidence" of father's psychological evaluation, we assume their reference to "Rule 60" is to rule 60.02 (b), which addresses newly discovered evidence. Rule 60.02, however, does not apply to dissolution cases. Lindsey v. Lindsey, 388 N.W.2d 713, 716 n.1 (Minn. 1986). Also, because there was no trial, the district court did not abuse its discretion by denying Beaumasters' motion for a new trial under Rule 59. See Erickson v. Erickson, 430 N.W.2d 499, 500 n.1 (Minn. App. 1988) (noting motion for "`new' trial' is an anomaly where there was no trial" and "[f]ew post-decree proceedings constitute a trial").

Under Chapter 518, a party may seek relief from a judgment for newly discovered evidence which, by "due diligence could not have been discovered in time to move for a new trial." Minn. Stat. § 518.145, subd. 2(2) (1998). Whether to grant relief under Minn. Stat. § 518.145, subd. 2, is discretionary with the district court. See Mesenbourg v. Mesenbourg, 538 N.W.2d 489 494, (Minn. App. 1995) (affirming district court's refusal to grand relief under Minn. Stat. § 518.145 as not an abuse of discretion). Here, because the psychological evaluation was found in the file of Beaumasters' former counsel, it was available to them before judgment was entered and their failure to address the evaluation until after entry of the judgment shows they were not diligent in not addressing it. The district court did not abuse its discretion by denying Beaumasters' request for relief. See University of Minn. v. Medical Inc., 405 N.W.2d 474 (Minn. App. 1987) (ruling evidence of theft not newly discovered where it was available due to the fact that it was suspected before trial and investigation was suspended during trial on recommendation of person suspected of theft), review denied (Minn. July 15, 1987); see, generally, Archer v. Whitten, 120 Minn. 433, 434, 139 N.W. 815, 815 (1913) (stating "a new trial on the ground of newly discovered evidence should not ordinarily be granted, when it appears that the only reason for not producing the evidence on the trial is that its existence was forgotten").

2. Beaumasters argue they should not have been excluded from the custody litigation. Beaumasters cite no authority for their argument and no error is obvious. In any event, because the district court did not abuse its discretion in denying Beaumasters request for relief from the judgment, they are bound by the judgment and the underlying stipulation in which they agreed that they would not receive custody.

3. Beaumasters seem to argue they were denied due process of law by being excluded from the custody litigation. Because the district court did not abuse its discretion by denying Beaumasters' request for relief from the judgment, Beaumasters' were not prejudiced by being excluded from a proceeding that could not address their custodial rights. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (to prevail on appeal, appellants must show both error and that error caused prejudice); Minn. R. Civ. P. 61 (harmless error to be ignored).

4. Beaumasters' motion to "Clarify the Scope of Review" was deferred to the panel. Beaumasters' supporting memorandum does not allege an ambiguity in the scope of their appeal. Instead, it essentially argues the custody proceedings in district court should be stayed pending resolution of this appeal. Beaumasters later moved this court to "add" the order the district court issued after the custody proceeding to their motion to "clarify" the scope of review. Because the custody litigation has concluded and the district court has issued an order, the proceeding cannot be stayed and any portion of Beaumasters' motion seeking to stay the trial is moot. Matter of Schmidt, 443 N.W.2d 824, 826 (Minn. 1989) (noting that if court is unable to grant effectual relief, "the issue raised is deemed to be moot").

5. Beaumasters seek a stay of the custody order from this court. We decline to grant a stay because Beaumasters did not previously seek a stay from the district court. See David N. Volkmann Constr. v. Isaacs, 428 N.W.2d 875, 877 (Minn. App. 1988) (holding district court required to determine, in first instance, propriety of stay).

6. The district court file contains a "Confidential Packet" with various documents. The file also includes certain transcripts. Without citing any authority, Beaumasters move this court to "exclude" the confidential packet and the transcripts. If the Beaumasters are asking this court to strike the items in question, their request is inconsistent with the rules. See Minn. R. Civ. App. P. 110.01 (appellate record includes papers and transcripts filed in district court). We also note one document in the confidential packet has a FAX transmittal date of a day after Beaumasters' appeal was taken. Thus, the "confidential packet" was apparently submitted to the district court during the reopened custody litigation. In any event, because the information in the confidential packet goes to the merits of the custody award but the issue in this appeal is whether Beaumasters should have been allowed to participate in the custody proceeding, the information in the packet is not relevant to this appeal. Regarding the transcripts, because it is unclear how Beaumasters could be prejudiced by this court having transcripts of what occurred in district court, the motion to exclude the transcripts is denied.

7. Alleging Beaumasters' motions are frivolous, father seeks attorney fees under Minn. Stat. § 549.211 (1998). Fee requests under Minn. Stat. § 549.211 are not to be presented to the court until 21 days after the motion has been served on the party from whom fees are sought. Minn. Stat. § 549.211, subd. 4. Here, father's attorney filed a motion for fees on the same day he served that motion on Beaumasters. The requirements for an award of fees under Minn. Stat. § 549.211 are not satisfied here. The motions are denied.