STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Stacy R. Ringhand, petitioner,
Michael R. Ringhand,
Filed August 24, 1999
Dakota County District Court
File No. F19814520
Dennis J. Dietzler, Suite 530, 6625 Lyndale Avenue South, Richfield, MN 55423 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Crippen, Judge.
Finding no merit in appellant's contention that excusable neglect provides a basis to vacate the divorce judgment obtained by respondent, we affirm.
Because appellant never responded to the summons, the trial court entered a default divorce judgment in August 1998. Four months later, appellant made a motion under Minn. Stat. § 518.145 (1998) to vacate the default judgment on the basis of excusable neglect.
Appellant claims that "excusable neglect can be found based upon [the lawyer's] failure to submit an Answer." But the trial court found that appellant was "responsible for the majority of the neglect." While a different result might be appropriate on evidence that appellant's lawyer assured appellant that he would file an answer on appellant's behalf, no such evidence is part of the record. C.f. Conley v. Downing, 321 N.W.2d 36, 41 (Minn. 1982) (vacation of judgment proper were client relied on attorney's representation that he was filing a brief in response to a summary judgment motion); Finden v. Klaas, 268 Minn. 268, 271-72, 128 N.W.2d 748, 750-51 (1964) (vacation of judgment proper where attorney assured client that he would answer a complaint). The trial court did not abuse its discretion in charging appellant with inexcusable neglect in the circumstances of this case.
Although relying primarily on his lawyer's failure to answer as a basis for excusable neglect, appellant raises the alternative contention that his neglect was excusable because his discussions with respondent prior to the default judgment amounted to an oral expression of his defense, thus precluding the need for a written response. Appellant relies upon Taylor v. Steinke, 295 Minn. 244, 203 N.W.2d 859 (1973) and Galatovich v. Watson, 412 N.W.2d 758 (Minn. App. 1987) as support for this proposition. But in each of these cases, the party making a verbal expression of a defense was (a) not represented by counsel, (b) speaking directly with the opposing attorney, and (c) under the belief that a formal response was not necessary. Given the facts of this case, there is no merit in appellant's contention that his discussions with respondent obviate the need for a written answer.
Appellant correctly notes that a party is entitled to relief from judgment for excusable neglect if they can show a reasonable claim on the merits, a reasonable excuse for their neglect, due diligence after entry of judgment, and no substantial prejudice to the other party. Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 455-56 (1952). Appellant further notes that a weak showing on one factor may be overcome by a strong showing on the other three factors. Guillaume & Associates, Inc. v. Don-John Co., 371 N.W.2d 15, 19 (Minn. App. 1985). But we find no merit in appellant's argument that any weakness in his showing of a reasonable excuse is offset by the strength of his showing on the other three factors.
Appellant's four-month delay in acting on the default does not suggest due diligence in his response. And his showing of non-prejudice is inconclusive at best. See Nelson, 428 N.W.2d at 395 (party seeking vacation of judgment must establish that no substantial prejudice will result to the other party). Finally, appellant has not adequately demonstrated that he has a reasonable claim on the merits. The record contains no evidence of the value of the respective property awards, thus precluding a finding of error by the trial court in this respect. Similarly, although the maintenance award appears surprising in the context of a four-year marriage, the record contains far too little evidence to permit our exploration of the equities of the award.
Appellant next contends that the judgment should be vacated due to fraud. But the trial court found no evidence of fraud and this is borne out by an examination of the record.
Finally, appellant contends that the judgment should be vacated because it is not equitable. Under Minnesota law, a dissolution judgment may be vacated when "it is no longer equitable that the judgment and decree or order should have prospective application." Minn. Stat. § 518.145, subd. 2(5) (1998). This provision suggests that a court should grant relief when there has been a change in circumstances rendering the original judgment inequitable. Appellant has confined his arguments regarding equity to the circumstances existing at the time of the award. Even regarding these arguments, as observed before regarding the merits of appellant's claim for relief, he has failed to develop a record to demonstrate the inequities he believes to be involved in the original judgment.
 Appellant simply claims that he forgot to contact his lawyer and assumed that the lawyer would "take care of" any necessary responses.
 Because of the roots of section 518.145 in Minn. R. Civ. P. 60.02, our review includes references to caselaw under the rule. See, e.g., Peterson v. Eishen, 512 N.W.2d 338, 340-41 (Minn. 1994) (noting evolution of section 518.145); Shirk v. Shirk, 561 N.W.2d 519, 522 & n.3 (Minn. 1997) (same).
 If a change of circumstance has rendered the original maintenance award inequitable, appellant should bring a new motion under Minn. Stat. § 518.64 (1998) (governing the modification of maintenance awards).