This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Ann M. Scherbing,



Mark A. Scherbing,


Filed March 3, 1998

Affirmed in part, vacated in part, and remanded

Willis, Judge

Benton County District Court

File No. F191476

Sharon G. Benson, Central Minnesota Legal Services, 830 West St. Germain, #309, P.O. Box 1598, St. Cloud, MN 56302 (for appellant)

Thomas E. Kramer, Pennington & Lies, P.A., 1111 First Street North, P.O. Box 1756, St. Cloud, MN 56302 (for respondent Mark Scherbing)

Benton County Human Services, IV-D Services, Benton County Courthouse, Foley, MN 56329 (respondent)

Considered and decided by Willis, Presiding Judge, Davies, Judge, and Holtan, Judge.*

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.



Ann Scherbing appeals an administrative law judge's denial of her motion for a new evidentiary hearing, asserting that mental illness prevented her from realizing that she was a separate party entitled to independent representation in the previous child support reimbursement proceeding. We affirm in part, vacate in part, and remand.


The marriage of Mark and Ann Scherbing was dissolved in 1991. The default dissolution decree awarded Mr. Scherbing legal and physical custody of the couple's three children, subject to liberal visitation by Ms. Scherbing. But in 1991 Ms. Scherbing obtained Aid to Families with Dependent Children (AFDC) for herself and the children. As a condition of receiving AFDC, she assigned her child support rights to Benton County. Ms. Scherbing received AFDC through 1996 while intermittently working at a series of low-paying jobs.

Because the county placed Ms. Scherbing's records in the wrong file, it did not seek child support reimbursement from Mr. Scherbing until 1996. Ms. Scherbing's AFDC caseworker determined that Ms. Scherbing had physical custody of the children more than 50% of the time, making her eligible for AFDC and Mr. Scherbing responsible for child support reimbursement to the county. Mr. Scherbing requested a hearing, claiming that he in fact had physical custody of the children more than 50% of the time and that he paid most of their expenses. Before the hearing, Mr. Scherbing and Ms. Scherbing submitted schedules showing the time each claimed to have spent with the children; Ms. Scherbing's schedule shows that she had custody more than 50% of the time.

At the hearing on December 18, 1996, Mr. Scherbing appeared with counsel, the county was represented by a child support officer, and Ms. Scherbing appeared pro se. After the county presented its case, the ALJ asked Ms. Scherbing what result she sought. Ms. Scherbing stated several times that she and Mr. Scherbing each had the children 50% of the time, that the present system was fair, and that neither party could afford to pay child support. In response to the ALJ's questioning, Ms. Scherbing gave testimony tending to show that she had the children somewhat less than 50% of the time. Ms. Scherbing responded "no" when the ALJ asked if she had "anything else." Mr. Scherbing testified that he sometimes had the children for "weeks" while Ms. Scherbing was in "the hospital"; this is the only reference in the hearing to Ms. Scherbing's health problems.

When the county's child support officer stated that Ms. Scherbing had not seen the visitation schedule Mr. Scherbing had prepared, the ALJ decided to leave the record open until December 31 to allow Ms. Scherbing time to respond. Ms. Scherbing answered "okay" when the ALJ restated the deadline, but she submitted no response. On January 21, 1997, the ALJ reopened the record, asking both parties and the county to submit affidavits by February 6. Only Mr. Scherbing responded.

On March 29, the ALJ issued findings determining that Mr. Scherbing owed no support. The ALJ found that Mr. Scherbing paid most of the children's expenses, that the amount of time Ms. Scherbing spent with the children during the school year amounted to liberal visitation rather than "equal custody," and that while Ms. Scherbing had custody for "much closer to 50%" of the time the previous summer, there was no indication that the same schedule would continue the following summer.

On May 7, 1997, Ms. Scherbing filled out a form "motion for reconsideration" and a form affidavit, both supplied by the Office of Administrative Hearings. Ms. Scherbing stated that she had mental health problems, that she had been out of the hospital for less than a week before the hearing, and that she "was told [she] did not need representation (Lawyer) because Mark was being taken to Court by the County, not me." She also stated that she had witnesses and written documents to support her claim that she had the children more than 50% of the time. The form motion asked whether the party sought amended findings or a new hearing; Ms. Scherbing checked the line for "new hearing."

On June 10, the ALJ issued an order denying reconsideration on the grounds that (1) Ms. Scherbing's motion was not supported under Minn. R. Civ. P. 52, 59, or 60, (2) the record had been left open and Ms. Scherbing had not responded, (3) the county, not Ms. Scherbing, bore the burden of proof with respect to establishing a child support obligation in an AFDC case, and (4) Ms. Scherbing's claim that she did not understand the process "is not grounds for the relief she seeks." Ms. Scherbing obtained an attorney and appealed the denial of her motion to this court. This court determined that the June 10 order was not independently appealable but that, because Mr. Scherbing served a notice of filing of the March 29 order before the order was actually filed, the time for appeal had never begun to run. This appeal was construed to be from the earlier order, with the June 10 order within the scope of review as an order affecting the previous order. We vacate the June 10 order in part and remand with instructions.


In a proceeding under Minn. Stat. § 518.5511 (Supp. 1997), this court reviews an ALJ's determination as it would a district court judgment. See Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990) (referring to the statutory predecessor of 518.5511). We grant no deference to a district court's determinations on purely legal issues. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

The parties appear to accept the ALJ's conclusion that neither Minn. R. Civ. P. 59, governing motions for a new trial, nor Minn. R. Civ. P. 60.02, allowing relief from judgments, applies in this case.[1] The parties instead argue the interpretation of a line of cases involving use of a court's inherent power to vacate a dissolution decree based on a party's mental health. See Lindsey v. Lindsey, 388 N.W.2d 713, 716 (Minn. 1986); Blattner v. Blattner, 411 N.W.2d 24, 26 (Minn. App. 1987), review denied (Minn. Oct. 30, 1987); Adams v. Adams, 393 N.W.2d 508, 509-10 (Minn. App. 1986), review denied (Minn. Nov. 19, 1986). The Lindsey line of cases centers on the authority of a court to vacate or modify the terms of a dissolution decree based on a finding of fraud on the court; this analysis was necessary because rule 60.02 by its terms does not apply to dissolution decrees. See Lindsey, 388 N.W.2d at 716.

Rule 59 did not apply in the Lindsey line of cases because they all involved stipulations for judgments of dissolution and because the motions seeking modification were filed well after the 15-day deadline for a motion for a new trial under Minn. R. Civ. P. 59.03. Rule 59.03 provides that the deadline runs from service of notice of filing by "a party." The county here served notice of filing of the March 29 order on April 10, 1997. As assignee of Ms. Scherbing's child support rights, the county was a party to the action. Ms. Scherbing's motion, filed on May 7, 1997, was untimely under rule 59.03.

Rule 60.02 allows a party to move to reopen any judgment, other than a marriage dissolution decree, and to request relief, including a new trial, on grounds of:

(a) Mistake, inadvertence, surprise, or excusable neglect;

* * * *

(f) Any other reason justifying relief from the operation of the judgment.

A motion under section (a) must be made within one year of the challenged judgment or order. Id. Ms. Scherbing met this requirement.

We conclude that this case falls outside the dissolution exception to rule 60.02 because it is not an attempt to modify the terms of a dissolution decree. The original judgment reserved the issue of child support, and the dispute here centers on the fact question of who actually cared for the children after the dissolution. We therefore find it proper to determine the applicability of rule 60.02 before addressing the use of inherent power under Lindsey.

Following Lindsey, the legislature enacted a statute that allows the reopening of a judgment or order under chapter 518 of Minnesota Statutes, except provisions dissolving or annulling a marriage, on grounds of "mistake, inadvertence, surprise, or excusable neglect." Minn. Stat. § 518.145, subd. 2(1) (1996). This case was brought before the ALJ pursuant to section 518.5511, subd. 1(b), as a proceeding "for obtaining * * * [a] child * * * support order[] * * * when the public authority is a party." Child support, for purposes of section 518.5511, includes "a contribution by parents ordered under section 256.87." Minn. Stat. § 518.54, subd. 4(2) (1996). The county brought this action under Minn. Stat. § 256.87, subd. 1 (1996).

Because the ALJ's jurisdiction derives from a section of chapter 518 and that section incorporates by reference the provision under which the county initiated this case, we conclude that Ms. Scherbing's motion must also be analyzed under section 518.145, subd. 2. That section states that it "does not limit the power of a court to entertain an independent action to relieve a party from a judgment * * * [or] order * * * ." Id. Where a judgment or order under chapter 518 is not excluded by rule 60.02, a party may move under both rule 60.02 and section 518.145 to vacate the judgment. See Peterson v. Eishen, 512 N.W.2d 338, 341 (Minn. 1994) (affirming under both provisions grant of motion to vacate void judgment of paternity and associated child support orders).

As the ALJ noted, the rules of civil procedure do not authorize a "motion for reconsideration." Welch v. Commissioner of Pub. Safety, 545 N.W.2d 692, 694 (Minn. App. 1996) (internal quotes omitted). But in this case, the Office of Administrative Hearings provided Ms. Scherbing, a pro se party, with a form labeled "Motion for Reconsideration." Indeed, the notice of filing served by the county states that a party who disagrees with the order must file a "motion * * * for reconsideration" on forms provided by the child support enforcement office.

This court has stated that pro se litigants are generally held to the same standards as attorneys. See, e.g., Heinsch v. Lot 27, Block 1 For's Beach, 399 N.W.2d 107, 109 (Minn. App. 1987). But we also have held that courts have a duty to allow reasonable accommodation to pro se parties as long as no prejudice results. Kasson State Bank v. Haugen, 410 N.W.2d 392, 395 (Minn. App. 1987). We conclude that Ms. Scherbing had a reasonable excuse for filing a motion unauthorized by the rules of civil procedure where the issuing agency was responsible for the form of the motion and the substance of the motion arguably states a claim under the rules. But cf. Carter v. Anderson, 554 N.W.2d 110, 115 (Minn. App. 1996) (stating that party represented by counsel had no reasonable excuse for filing "motion for `reconsideration'" rather than appealing or making motion authorized by rules), review denied (Minn. Dec. 23, 1996). A contrary decision would allow agencies effectively to immunize their decisions from judicial review by misleading potential appellants with incorrect form motions.

I. Jurisdiction

Courts have no jurisdiction to vacate judgments that have been satisfied. Boulevard Del v. Stillman, 343 N.W.2d 50, 52 (Minn. App. 1984). There is no case law regarding the application of this rule where the judgment entered is not for a specific dollar amount. But if Boulevard Del were to apply here, any case in which money damages are not awarded would be immune from a motion to vacate. We do not believe that either rule 60.02 or section 518.145, subdivision 2, was intended to be so restricted in application, and we therefore construe the Boulevard Del holding to apply only where a judgment for money damages has been entered and a satisfaction of judgment has been filed. Because no such satisfaction was filed here, or indeed could have been, the ALJ has jurisdiction to consider Ms. Scherbing's motion.

II. Rule 60.02(a) and Section 518.145, Subdivision 2(1) - Mistake, Inadvertence, Surprise, or Excusable Neglect

There is no case law interpreting subdivision 2(1) of section 518.145, but the language of its operative provisions is identical with rule 60.02(a). It is presumed that

[w]hen a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language * * * .

Minn. Stat. § 645.17(4) (1996). We therefore apply precedent interpreting rule 60.02(a) in analyzing Ms. Scherbing's claim under section 518.145, subd. 2. See Peterson, 512 N.W.2d at 341 (applying precedent interpreting rule 60.02(d) in construing functionally identical language in section 518.145, subd. 2(4)).

A party seeking relief under rule 60.02(a), and therefore a party seeking relief under section 518.145, subdivision 2(1), must demonstrate that she (1) has a reasonable claim on the merits; (2) had a reasonable excuse for failure to act at the time of trial; (3) acted with due diligence following notice of the entry of judgment; and (4) that reopening the judgment would not substantially prejudice the opposing party. Boulevard Del, 343 N.W.2d at 53 (citing Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 749 (1964)). When the district court fails to apply this four-part test, an appellate court will apply it de novo. Carter, 554 N.W.2d at 115.

The moving party bears the burden of proving all four elements, including lack of prejudice. Nelson v. Siebert, 428 N.W.2d 394, 395 (Minn. 1988). Relative weakness on one factor may be offset by a strong showing on the other factors. Armstrong v. Heckman, 409 N.W.2d 27, 29 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987). A claim need only be "debatably" meritorious to meet the first prong of the test, and mere delay and expense to the opposing party is not sufficient prejudice to defeat a motion. Charson v. Temple Israel, 419 N.W.2d 488, 491-92 (Minn. 1988). This court has stated that a rule 60.02 motion "should be granted" when the four conditions are met. Peterson v. Skutt Ceramic Prods., Inc., 417 N.W.2d 648, 651 (Minn. App. 1987), review denied (Minn. Mar. 18, 1988). But this is not an absolute right. Armstrong, 409 N.W.2d at 29.

Ms. Scherbing has demonstrated a debatably meritorious claim because she submitted a written schedule asserting that she had the children more than 50% of the time and represents in her affidavit that she has other witnesses and documentation to support that claim. Cf. Armstrong, 409 N.W.2d at 29 (holding that complaint alleging sufficient facts to allow trier of fact to determine question of negligence created meritorious claim). Her hearing testimony contradicts this evidence, but it is difficult to evaluate that testimony without knowing the nature of her claimed mental illness.

Ms. Scherbing filed her motion six weeks after the court's order. We find that she acted with due diligence, particularly in view of her claimed infirmity. There is no evidence in the record indicating prejudice other than the normal expense and delay of litigation, although the equities may weigh more heavily against granting a motion to vacate a judgment where, as here, the prevailing party is an individual with a modest income contributing some amount of support to three children. The central question here is the reasonableness of Ms. Scherbing's excuse for failing either to seek representation or to raise her claim of mental illness at the time of the hearing. We have found no case law on the effect of a party's mental illness or on the absence, as opposed to the neglect, of counsel under rule 60.02(a)[2] or section 518.145, subdivision 2(1). The supreme court has stated that a unilateral mistake cannot form the basis for a rule 60.02 motion, but in dictum and without citation to authority. Kubiszewski v. St. John, 518 N.W.2d 4, 7 (Minn. 1994). Because the record contains no evidence as to the nature of Ms. Scherbing's claimed infirmity, it is impossible to determine the reasonableness of her excuse. But although courts have broad discretion in dealing with procedural motions, we conclude that the ALJ abused her discretion in denying Ms. Scherbing's motion without requesting further documentation after having been alerted to the possibility that Ms. Scherbing might have been unable to understand the previous proceeding because of mental illness. The form motion does not suggest the need to supply any information other than an attached form affidavit. We find it unreasonable to place on Ms. Scherbing, a pro se party, the burden of knowing that she should also attach documentation such as an affidavit of a doctor or a psychologist at the time of filing. Cf. Kasson, 410 N.W.2d at 394-95 (determining that district court abused discretion in denying continuance to pro se party who, in lieu of answer, sent letter to plaintiff alleging fraud, then returned from three-week absence to find summary judgment motion hearing scheduled the following day); also cf. Dorso Trailer Sales, Inc. v. American Body & Trailer, Inc., 464 N.W.2d 551, 556 (Minn. App. 1990) (finding attorney's ignorance of law not reasonable excuse), rev'd in part on other grounds, 482 N.W.2d 771 (Minn. 1992). The ALJ's denial of Ms. Scherbing's motion appears particularly inequitable in view of the substantial civil and criminal penalties to which Ms. Scherbing could be subject if she did not have custody more than 50% of the time and was thus not entitled to the AFDC payments she received. We therefore vacate the court's judgment with respect to rule 60.02(a), as well as its implicit judgment with respect to the inapplicability of section 518.145, subdivision 2(1), and remand with directions that the ALJ order Ms. Scherbing to provide documentation of the nature of her alleged infirmity in order to allow the ALJ to apply properly the four-part test set forth in Finden.

III. Rule 60.02(f) - Residual

Minnesota courts have generally stated that clause (f) of rule 60.02, the residual provision of the rule, allows relief from judgment only for reasons not listed in sections (a) through (e). See, e.g., Chapman v. Special Sch. Dist. No. 1, 454 N.W.2d 921, 923-24 (Minn. 1990). Courts have occasionally departed from this rule where circumstances that would appear to fall under clause (a) are not presented until after the one-year deadline applicable to that clause has passed. See, e.g., Qualy v. MacDonald, 395 N.W.2d 423, 425-26 (Minn. App. 1986) (allowing reopening of judgment where accident victim discovered medical problems more than one year after judgment), review denied (Minn. Dec. 23, 1986). Because we conclude that Ms. Scherbing has stated a potential claim of "[m]istake, inadvertence, surprise, or excusable neglect" within the meaning and the time limitations of clause (a), we do not have to consider whether clause (f) might otherwise apply to her claim.

We construe Lindsey and its progeny to apply only in cases where rule 60.02 and section 518.145, subdivision 2, are inapplicable by their terms. Because Ms. Scherbing's motion is cognizable under both the rule and the statute, we also need not address whether Ms. Scherbing has demonstrated a fraud on the court allowing reopening of the judgment based on the court's inherent power. But we see nothing in the record to indicate any intentional misrepresentation to the court. See In re Adoption of C.M.A., 557 N.W.2d 353, 358 (Minn. App. 1996) (stating that fraud on court requires material and intentional misrepresentation).

For the foregoing reasons, we vacate the portion of the ALJ's June 10 order relating to rule 60 and remand with directions that the ALJ order Ms. Scherbing to submit, within a reasonable time, documentation detailing the nature and effect of her claimed mental illness in order to allow the ALJ to determine properly whether to reopen the judgment under rule 60.02(a) and section 518.145, subdivision 2(1).

Affirmed in part, vacated in part, and remanded.

[ 1] Minn. R. Civ. P. 52.02, concerning amendment of findings, is inapplicable because Ms. Scherbing did not request such relief.

[ 2] A litigant's pro se status was at issue in Gruenhagen v. Larson, 310 Minn. 454, 246 N.W.2d 565 (1976) and in Schroetke v. Schroetke, 365 N.W.2d 380 (Minn. App. 1985). But both those cases involved the residual clause, rule 60.02(f), rather than 60.02(a).