may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Merle Ray Morlock, petitioner,
Eulala June Morlock,
Filed August 10, 1999
Chippewa County District Court
File No. F49410
Donald H. Walser, 131 South Main Street, P.O. Box 129, Hutchinson, MN 55350 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.
Appellant-husband alleges the district court should have reopened the parties' stipulated dissolution judgment. He also challenges evidentiary rulings by the district court. The district court's rulings were not an abuse of its discretion and we affirm.
The district court refused to reopen the judgment for fraud. Because husband sought to reopen the judgment for fraud more than one year after judgment was entered, he cannot successfully challenge this ruling. See Minn. Stat. § 518.145, subd. 2 (motion to reopen for fraud must be made not later than a year after judgment is entered).
Husband alleges the district court should have reopened the judgment for fraud on the court. See Minn. Stat. 518.145, subd. 2 (1998) (listing fraud on court as reason to reopen dissolution judgment). Whether to reopen a dissolution judgment is discretionary with the district court. See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995) (ruling district court did not abuse its discretion in denying motion to reopen default dissolution judgment). Husband alleges he was not competent to enter the stipulation on which the judgment was based. Incompetency may amount to a fraud on the court. Blattner v. Blattner, 411 N.W.2d 24, 26 (Minn. App. 1987) (citing Lindsey v. Lindsey, 388 N.W.2d 713, 716 (Minn. 1986)), review denied (Minn. Oct. 30, 1987). Because the district court refused to find fraud on the court, it functionally found that the degree of any disability husband suffered did not deprive him of the competence required to enter the stipulation and hence that husband's allegations to the contrary were not credible. We defer to district court credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
To support his argument that he was not competent, husband cites Lindsey and Blattner. Those cases, however, affirmed reopening stipulated dissolution judgments where the record showed that the moving party was not competent to enter the underlying stipulation. Lindsey, 388 N.W.2d at 716; Blattner, 411 N.W.2d at 26-27. Here, not only is husband asking this court to reverse a credibility-based finding that he was competent, but, unlike Lindsey and Blattner, this record lacks expert evidence explicitly stating husband was incompetent. See Lindsey, 388 N.W.2d at 715 (discussing husband's "undue influence" on wife during dissolution period); Blattner, 411 N.W.2d at 25 (addressing doctor's medical opinion that, because of disease and medication, husband would not have been able to understand consequences of dissolution stipulation). Also, here, the non-expert affidavits regarding husband's condition conflict. The district court's implicit finding that husband was competent is not clearly erroneous. See McCabe v. McCabe, 430 N.W.2d 870, 873 (Minn. App. 1988) (stating that where record supports any of several findings, including those made by district court, this court defers to district court's findings), review denied (Minn. Dec. 30, 1988).
Husband also alleges the judgment should have been reopened because the trust is unworkable due to the fact that the parties cannot agree. Generally, case law favors dissolution judgments that separate parties from each other to the extent possible. E.g., Ervin v. Ervin, 404 N.W.2d 892, 895 (Minn. App. 1987), review denied (Minn. June 26, 1987). Because these parties stipulated to the terms of their dissolution, the dissolution court properly assumed that the strife typically associated with awarding joint interests in property could be avoided here. Also, parties to a dissolution may stipulate to a result the district court could not order. In re Labelle's Trust, 302 Minn. 98, 115-16, 223 N.W.2d 400, 411 (1974). The district court's refusal to reopen the judgment is consistent with case law. See Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997) (emphasizing that upon entry of stipulated judgment, "the need for finality becomes of central importance").
Fraud on the court requires an intentional misrepresentation or nondisclosure which misleads the court and opposing counsel. Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989). Husband argues that the reference to "opposing counsel" cannot apply here because the parties were jointly represented. He also cites the affidavit of his malpractice expert to argue that the judgment should have been vacated as unfair. Incompetent counsel is not a sufficient reason to reopen a judgment. Shirk, 561 N.W.2d at 523. Husband argues Shirk is distinguishable because he is not seeking to reopen the judgment based on the incompetency of counsel, but because he lacked counsel. He lacked counsel, however, because he chose not to retain an attorney for the stipulation proceedings. This is an inadequate reason to reopen the judgment. SeeGlorvigen v. Glorvigen, 438 N.W.2d 692, 696 (Minn. App. 1989) (holding, under pre-Minn. Stat. § 518.145, subd. 2 analysis, that knowing and voluntary waiver of counsel "substantially [met]" requirement that party be represented). We defer to the district court rejection of husband's claim that he would not have agreed to use the attorney who drafted the stipulation and trust if he knew wife had previously consulted the attorney's firm.
Husband's cites progeny of this court's opinion in Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984) to argue for reopening the judgment. Tomscak predates Minn. Stat. § 518.145, subd. 2 and the supreme court has since stated that the "sole relief" from a dissolution judgment "lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2." Shirk, 561 N.W.2d at 522 (footnote omitted).
While it is undisputed that the affidavits of attorneys whom wife consulted and who drafted the stipulation and trust were untimely, husband admits the district court can accept late affidavits if doing so does not cause prejudice. He alleges he was prejudiced by one affidavit because it included a copy of a December 13, 1993, letter to him from counsel, stating the attorney had met with wife. Husband alleges the first time he saw the letter was during these proceedings. The district court rejected this assertion and the record does not show the court's finding to be clearly erroneous.
Husband further alleges he was prejudiced by the district court's quashing of the depositions of wife and the attorneys because he needed to depose them regarding his mental state when he entered the stipulation and regarding wife's consultations with counsel. The affidavits of wife and one attorney say husband was competent to enter the stipulation. Also, the district court accepted wife's description of her contact with counsel. What these persons would have said in a deposition to contradict what is in the record is not explained by husband. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating to prevail on appeal, appellant must show error and resulting prejudice).
 Husband argues that the district court could have reopened the judgment because the judgment's unworkability makes it inequitable. See Minn. Stat. § 518.145, subd. 2(5) (allowing judgment to be reopened if it is not equitable that judgment have prospective application). Because husband admits this argument was not made to the district court, it is not properly before this court and we do not address it. See Thiele v. Stich, 425 N.W.2d 580, 582 (stating appellate courts address only issues presented to and considered by district court).