This opinion will be unpublished and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:

Michael B. Fruen, petitioner,



Sandra L. Fruen,


Filed August 17, 1999


Schumacher, Judge

Hennepin County District Court

File No. 206911

Judith L. Oakes, J. Oakes & Associates, 780 Galtier Plaza, 175 East Fifth Street, Box 15, St. Paul, MN 55101 (for respondent)

John R. Hill, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431-1194 (for appellant)

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



Appellant Sandra L. Fruen (wife) alleges the district court erred in interpreting and in refusing to enforce the portion of the parties' 1995 dissolution judgment requiring respondent Michael B. Fruen (husband) to pay wife $25 per day for each day that he did not transfer to wife property awarded her in the judgment. We affirm.


The stipulated 1995 judgment dissolving the parties' marriage awarded wife personal property, required husband to produce the personal property, and stated husband would pay wife $25 per day for each day he was late in producing the property. In May 1998, wife served husband with an order to show cause why he should not be held in contempt for not producing the property and not paying her $25 per day since 1995. A Family Court Referee reserved wife's motion, allowed her access to husband's home to obtain certain items of property, and stated the fine would be imposed if any of the listed items of property was missing. After all but one of the listed items were accounted for, the referee dismissed wife's motion. Later, the district court generally affirmed the results in both of the referee's orders. Wife appeals.


1. Stipulated dissolution judgments are binding contracts. Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984). Wife alleges the district court mis-read the judgment when it conditioned her receipt of the fine on her not finding some of the property she was allowed to seek in husband's home. It was the referee, not the district court, who read the judgment to require the absence of property for imposition of the fine. The district court noted that under Karon v. Karon, 435 N.W.2d 501 (Minn. 1989) it was a third party to the dissolution to assure its fairness and refused to impose the fine, finding that doing so would be inequitable.

"The sole relief" from a stipulated judgment "lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2 [(1998)]." Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997). Whether to reopen a stipulated judgment under Minn. Stat. § 518.145, subd. 2 is discretionary with the district court. See Hestekin v. Hestekin, 587 N.W.2d 308, 310-11 (Minn. App. 1998) (discussing reopening stipulated judgments under Minn. Stat. § 18.145, subd. 2). Here, the district court refused to impose the fine because it found the fine "excessive" and "unreasonable." By doing so, it functionally relieved husband from the fine under Minn. Stat. § 518.145, subd. 2(5), which allows relief from a judgment if "it is no longer equitable that the [judgment] * * * have prospective application."

Section 518.145, subdivision 2, is similar to, and was derived from, Minn. R. Civ. P. 60.02. E.g., Shirk, 561 N.W.2d at 522 n.3; Peterson v. Eishen, 512 N.W.2d 338, 341 & n.3 (Minn. 1994). Cases citing rule 60.02 are used when applying Minn. Stat. § 518.145, subd. 2. E.g., Peterson, 512 N.W.2d at 341. Addressing rule 60.02(e), the analog to Minn. Stat. § 518.145, subd. 2(5), this court noted that while the Minnesota case law had not interpreted rule 60.02(e), the rule's federal equivalent "has been interpreted to provide a court broad equitable discretion to modify a judgment in light of changed circumstances." Jacobson v. County of Goodhue, 539 N.W.2d 623, 625 (Minn. App. 1995) (citing federal cases), review denied (Minn. Jan. 12, 1996). The federal rule "principally applies" to injunctions where "a significant change in circumstances" makes the injunction's "continued application" "inequitable and turns the decree into an `instrument of wrong.'" Id. at 625-26 (quoting and citing authorities).

Here, the fine is a species of injunction. See Black's Law Dictionary 784 (6th ed. 1990) (defining "injunction" to include "[a] court order * * * commanding someone to undo some wrong or injury"). The record shows circumstances have changed since the judgment was entered in that (a) wife did not seek to recover the property in question in a reasonable time as implicitly assumed by the judgment; (b) some of the property was apparently lost or stolen, making it impossible to turn over to wife; (c) wife received more than $10,000 in insurance proceeds for the missing property; and (d) wife did not previously raise the fine issue despite being involved in prior post-judgment proceedings. Thus, the assumption underlying the judgment, that wife would seek to enforce the fine to get her property within a reasonable period of time, was undercut by wife's failure to do so, by the fact that some of the property no longer exists, and by the fact that wife has already been paid for that property. Affirming the district court's use of its discretion to address changed circumstances is not inconsistent with case law. See Hecker v. Hecker, 568 N.W.2d 705, 709-10 & n.3 (Minn. 1997) (maintenance recipient's unexpected failure to rehabilitate justified modification of maintenance).

The district court also believed wife waived her ability to invoke the fine, stating that because she "waited two and a half years, this Court will not impose a daily fine." See Smith v. Smith, 235 Minn. 412, 421, 51 N.W.2d 276, 281 (1952) (defining waiver as a "voluntary relinquishment of a known right"). A court may infer the intent to abandon a right from a party's conduct. Stephenson v. Martin, 259 N.W.2d 467, 470-71 (Minn. 1977). Wife's failure to assert her rights until more than two years after judgment was entered, and six months after the resolution of a post-judgment dispute, supports an inference of waiver. See In re Estate of Sangren, 504 N.W.2d 786, 790 (Minn. App. 1993) (holding party's failure to object to assignment made in its presence until four months later was waiver), review denied (Minn. Oct. 28, 1993).

2. Wife argues the district court erred by not enforcing "its" order stating the fine would be imposed if, after wife's search, property was missing. The order in question was issued by the referee and it reserved issues. An order not finally resolving a case maybe revised "at any time" before a final adjudication of all claims. See Minn. R. Civ. P. 54.02 (addressing finality of judgments). Here, after wife searched husband's home, the referee functionally amended her first order, declining to award wife a $28,325 fine for a missing umbrella stand.

Wife alleges she had to wait to seek the fine because the judgment allows her to seek the fine only after husband delivered the property and only when she knew husband had retained the property. The fine provision states: "If [husband] does not deliver [wife's] personal property within the time limit above[,] he shall pay her a fine of $25.00 per day until delivered." It lacks a restriction on its enforcement.

Wife also alleges that her receipt of insurance proceeds should not weigh against imposition of the fine and cites a document in the appendix to her brief. The document is captioned as if it were her affidavit and states (a) husband told wife some property was stolen; (b) wife reported the theft; (c) wife received insurance proceeds for the property; and (d) husband lied when he said the property was stolen. The "affidavit" in wife's appendix is unsigned and unnotarized. A viable copy of the affidavit is not in the district court file. See Minn. R. Civ. App. P. 110.01 (defining record on appeal as items presented to district court); Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) ("any matters outside the record must be stricken"). Even if a proper copy of the affidavit was in the district court file, the district court would have had to make a credibility determination regarding whether husband lied when he told wife some of the property was stolen. Because the district court refused to impose the fine, any credibility determination was resolved against wife. Appellate courts defer to district court credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988); see Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) (stating appellate courts defer to district court resolution of fact issues presented by conflicting affidavits).

To support her refusal to impose the fine, the referee stated the fine would unjustly enrich wife. Noting the fine was part of the parties' stipulation, wife challenges the use of unjust enrichment as a basis for refusing to impose the fine. While the district court noted the referee's reference to unjust enrichment, we need not address this issue because relief from a stipulated judgment occurs under Minn. Stat. § 518.145, and we have concluded that the district court had the discretion under that provision not to enforce the fine provision in the judgment. A similar analysis addresses wife's argument that the district court erred by basing its refusal to impose the fine on the finality of the property division.