This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1773

 

 

In re the Marriage of:

 

Essam El-Dean Hassan Ahmed, petitioner,

Appellant,

 

vs.

 

Eman Bakry Haroun,

Respondent.

 

 

Filed July 31, 2007

Affirmed as modified

Lansing, Judge

 

 

Dakota County District Court

File No. FX-05-14164

 

 

Laurie A. Mack, Lymari J. Santana, Mack & Santana Law Offices, P.C., 1700 U.S. Bank Plaza South, 220 South Sixth Street, Minneapolis, MN 55402 (for appellant)

 

Andrew V. Moran, Andrew V. Moran Law Firm, P.A., 12400 Portland Avenue South, Suite 180, Burnsville, MN 55337 (for respondent)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            After the district court denied Essam El-Dean Hassan Ahmed’s motion for a fourth continuance, he agreed to settle his marital-dissolution proceeding through an oral stipulation.  Ahmed subsequently moved to vacate the stipulation, and the district court denied the motion.  We conclude that the district court did not abuse its discretion by denying both the motion for a continuance and the motion to vacate.  Because the written order improperly added new terms to the stipulation, however, we affirm as modified.

F A C T S

            Essam El-Dean Hassan Ahmed was born in Egypt and has spent most of his life in the Twin Cities area.  He is an American citizen and a licensed real-estate agent.  In 1999, he married Eman Bakry Haroun in Egypt, and she moved to Minnesota with him.

            Ahmed initiated a marital-dissolution proceeding in 2005.  He filed a number of affidavits accusing Haroun of sympathizing with terrorists and engaging in anti-Jewish activity.  The district court issued a temporary relief order granting Ahmed sole physical custody of the couple’s three young children.  The district court noted that because of Ahmed’s claims about Haroun’s “conduct in practicing her Muslim religion, this Court has grave concern that she would not be an appropriate parent or role model for the children.”  The district court, among other factors, based its decision on Haroun’s failure to seek U.S. citizenship until after the proceedings commenced and Ahmed’s allegations about Haroun’s voicing anti-American sentiments.

            At the same time, the district court appointed a custody evaluator.  The court ordered Ahmed to pay the evaluator’s retainer, and ordered Haroun to reimburse Ahmed for half the total cost of the evaluator at the completion of the action.  Because Ahmed failed to pay, the custody evaluation was delayed by five months, and the district court twice continued the case.  After conducting a number of interviews, the custody evaluator recommended that the parents share joint physical custody of the children.

            On May 4, 2006, Ahmed and Haroun appeared for trial and entered into negotiations.  After two days of negotiations, Ahmed refused to agree to a settlement.  Because of scheduling issues, the district court granted another continuance.  The district court also modified the temporary-relief order to give Haroun joint physical custody.

            About two weeks before the rescheduled trial date, Ahmed’s attorney withdrew from the case.  The district court denied Ahmed’s request for a fourth continuance that would allow him to obtain new counsel.  Ahmed appeared for trial pro se, and, after negotiations, the case was resolved through an oral stipulation.

            The oral stipulation was recited on the record, and Ahmed and Haroun each confirmed the terms.  At the court’s direction, Haroun’s attorney submitted a proposed order.  Ahmed objected and argued that it misrepresented the stipulation.  In addition, Ahmed argued that the stipulation should be vacated because he was not represented by counsel, he acted under duress, and the parties failed to reach an agreement about material terms.  Haroun then submitted a modified proposal that responded to some, but not all, of Ahmed’s objections.  The district court accepted the proposal and entered judgment.  Ahmed now appeals.

D E C I S I O N

I

            A district court should liberally grant a continuance to allow a reasonable opportunity to prepare a case.  Rice v. Perl,320 N.W.2d 407, 412 (Minn. 1982).  In determining whether to grant a continuance, the district court should base its decision on the facts and circumstances surrounding the request.  See Kate v. Kate, 234 Minn. 402, 410, 48 N.W.2d 551, 556-57 (1951) (affirming denial of motion for continuance when movant failed to act promptly).  We will not reverse the district court’s decision unless it represents a clear abuse of discretion.  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).

            In a civil proceeding, a lawyer may withdraw from the case after notifying the court and the other parties.  Minn. R. Gen. Pract. 105.  The withdrawal “does not create any right to continuance of any scheduled trial or hearing.”  Id.  As a result, Ahmed was not entitled to a continuance merely because his lawyer withdrew from the case about two weeks before trial.  Nonetheless, “withdrawal or substitution of counsel may be part of a set of circumstances justifying the exercise of the court’s discretion to grant a continuance.”  Id. cmt. 

            We conclude that the circumstances in this case justified the court’s decision to deny a fourth continuance.  As a result of Ahmed’s previous actions, the district court had already granted three continuances.  Two of the continuances were the result of Ahmed’s failure to pay the custody evaluator.  Although the record does not indicate why Ahmed’s counsel withdrew, the district court could nonetheless conclude that Ahmed’s failure to obtain counsel for the trial was part of a larger pattern of delay.  In addition, we note that Ahmed has not alleged that he was unable to afford legal counsel.  Although Ahmed unquestionably had a strong interest in being represented by counsel, the district court could, under the circumstances, conclude that Ahmed’s interest was outweighed by the need to avoid further delays.  Therefore, we cannot conclude that the district court abused its discretion.

II

            To expedite litigation and resolve acrimonious disputes, Minnesota courts favor stipulations in dissolution cases.  Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997).  We review a district court’s refusal to vacate a stipulation under an abuse-of-discretion standard.  Maranda v. Maranda, 449 N.W.2d 158, 164 (Minn. 1989).  A stipulation should be vacated if it was “improvidently made and in equity and good conscience ought not to stand.”  John v. John, 322 N.W.2d 347, 348 (Minn. 1982) (quotation omitted).  In making this determination, we accord stipulations “the sanctity of binding contracts.”  Shirk, 561 N.W.2d at 521.  Of course, courts are not “bound by an agreement between parents affecting the rights of minor children with respect to support, but will be controlled by the welfare of the child as the paramount consideration.”  Tammen v. Tammen, 289 Minn. 28, 30, 182 N.W.2d 840, 842 (1970).

            In reviewing a district court’s decision on whether to vacate a stipulation in a marital-dissolution proceeding, we have relied on considerations referred to as “Tomscak factors.”  Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984), abrogated by Shirk, 561 N.W.2d at 522-23.  The four Tomscak factors ask whether:  (1) the party was represented by counsel, (2) extensive and detailed negotiations occurred, (3) the party agreed to the stipulation in open court, and (4) the party acknowledged that he understood the terms and considered them fair and equitable.  Pekarek v. Willemy, 380 N.W.2d 161, 163 (Minn. App. 1986). 

            The scope of the Tomscak factors was narrowed by a legislative amendment to Minn. Stat. § 518.145.  See Haefele v. Haefele, 621 N.W.2d 758, 761-62 (Minn. App. 2001) (discussing legislative limitation on permissible grounds for vacating stipulation-based dissolution judgments), review denied (Minn. Feb. 21, 2001).  In Shirk, the district court vacated a stipulation-based dissolution judgment because of incompetent representation by a party’s attorney.  561 N.W.2d at 521.  Relying on the first Tomscak factor that relates to representation by counsel, we affirmed the district court.  Shirk v. Shirk, 551 N.W.2d 504, 506 (Minn. App. 1996).  On review, the supreme court concluded that after judgment is entered the only available relief is through section 518.145.  Shirk, 561 N.W.2d at 522.  Because the statute does not permit relief from judgment based on incompetent counsel, the supreme court reversed.  Id.at 523.

            The Shirk decision addressed the standard that applies when a motion to vacate a stipulation is made after judgment is entered.  Shirk does not address what standard should be applied when—as in this case—a motion to vacate the stipulation is made before judgment is entered. 

            We conclude that a similar standard should be applied when the motion to vacate is made before judgment is entered.  In Tomscak, the district court denied a request to vacate a marital-property stipulation.  352 N.W.2d at 465.  We noted that stipulations may be vacated for fraud, duress, or mistake.  Id.at 466.  The appellant in Tomscak did not assert a defense of fraud or duress but claimed that the stipulation was based on a mistake about property values.  Id.  We affirmed the district court’s denial of the motion to vacate because the appellant had been represented by competent counsel, the stipulation was based on extensive negotiations, the stipulation was agreed to in open court, and the appellant indicated that she understood the stipulation and considered it fair.  Id.  We concluded that these four facts demonstrated an absence of mistake and that fraud and duress claims were not at issue.  Thus, the Tomscak decision was essentially directed toward a standard that considered the elements of fraud, duress, or mutual mistake.

            These elements continue to be pivotal considerations in determining whether to grant or deny a motion to vacate a stipulation before judgment is entered.  Relying on factors that test the existence of fraud, duress, or mutual mistake is consistent with the contract theory of stipulations noted in Shirk.  561 N.W.2d at 521.  Consequently, the general standard that emerges is that, if a dissolution stipulation has been properly formed and accepted by the parties, courts will generally enforce the stipulation unless a contract defense would apply by analogy.  The reasons provided for reopening a judgment under section 518.145 are comparable to common-law contract defenses.  See Minn. Stat. § 518.145, subd. 2 (recognizing fraud, misrepresentation, and mistake, among other reasons, as basis for reopening dissolution judgment).  Thus, the considerations for vacating a stipulation both before and after judgment are in alignment and, in some instances, the same.  The Tomscak factors remain relevantto the analysis and constitute appropriate factors to weigh in balancing the competing considerations, but the factors do not provide an independent or absolute threshold for vacating a stipulation.  Haefele, 621 N.W.2d at 762.

            Considering the district court’s decision under this standard, we conclude that it acted within its discretion when it denied Ahmed’s motion to vacate the stipulation.  Ahmed argues that because he was not represented, he was forced into agreeing to the stipulation.  But Ahmed did not act under duress.  Duress is a defense only when the agreement is coerced through physical force or unlawful threats.  Bond v. Charlson, 374 N.W.2d 423, 428 (Minn. 1985).  Ahmed was not threatened with physical force.  Because he was not entitled to a continuance, Ahmed did not face any illegal coercion.  See St. Louis Park Inv. Co. v. R.L. Johnson Inv. Co., 411 N.W.2d 288, 291 (Minn. App. 1987) (noting that “[m]erely driving a hard bargain . . . is not duress”), review denied (Minn. Oct. 30, 1987).  Furthermore, duress is only a defense if the threat “destroys the victim’s free will and compels him to comply with some demand of the party exerting the coercion.”  Wise v. Midtown Motors, Inc., 231 Minn. 46, 51, 42 N.W.2d 404, 407 (1950).  Ahmed had previously received extensive legal advice about the stipulation and—as a real-estate agent—he had a professional background that gave him some familiarity with the legal system.  Even if Ahmed had been improperly threatened, the alleged coercion did not rise to the level of duress.

            Although Ahmed has established that a Tomscak factor—representation by counsel—was not satisfied, he has not established that the stipulation was the product of fraud, duress, or mutual mistake.  Therefore, the district court acted within its discretion when it denied his motion to vacate.  Cf. Shirk, 561 N.W.2d at 522 (holding that incompetency of counsel does not constitute basis for reopening marital-dissolution judgment); see also In re Estate of Kinney, 733 N.W.2d 118, 125-26 (Minn. 2007) (concluding that absence of spouse’s opportunity to consult with counsel before signing antenuptial agreement does not make agreement unenforceable under common law).

III

            A written order cannot materially alter an oral stipulation and continue to rely on the stipulation as the evidentiary basis for the order.  Gethsemane Luth. Church v. Zacho, 253 Minn. 469, 479-80, 92 N.W.2d 905, 913 (1958).  After the parties to a dissolution have reached a stipulation, the district court “cannot, by judicial fiat, impose conditions on the parties to which they did not stipulate and thereby deprive the parties of their ‘day in court.’”  Toughill v. Toughill, 609 N.W.2d 634, 638 n.1 (Minn. App. 2000).

            The district court’s written order improperly included a reservation of maintenance that was not included in the oral stipulation.  The oral stipulation did not provide for maintenance, and it did not include a reservation of maintenance.  When maintenance is ordered, the district court can modify maintenance in the future unless future modification is waived.  Karon v. Karon, 435 N.W.2d 501, 503 (Minn. 1989).  Thus, when maintenance is ordered, the default rule is that maintenance can be modified in the future.  The default rule is different, however, when no maintenance is ordered.  Failing to provide for or to reserve maintenance in the original order is the equivalent of waiving it.  McCarthy v. McCarthy, 293 Minn. 61, 66, 196 N.W.2d 305, 308 (1972).  The supreme court stated:

            We hold that where the decree of divorce is silent as to alimony or fails properly to designate alimony as required by statute, the trial court cannot thereafter modify the decree to award alimony since to allow such a practice would be to allow modification of something that never existed.  Further, where the decree does not specifically reserve jurisdiction of the issue of alimony for determination at a later date, no such jurisdiction can later be claimed.  The trial court in this situation had no jurisdiction to make the order it did.

 

Id.  The current maintenance statute, Minn. Stat. § 518A.27 (2006), does not provide any apparent basis for reaching a different result.

            Because the oral stipulation did not refer to maintenance, the district court does not have the power to order maintenance in the future.  But the written order reserves the issue of maintenance.  Although the parties apparently discussed maintenance in chambers, the record provides no indication of this discussion.  Thus, the written order added a new term that was not included in the oral stipulation.

            Ahmed argues that the stipulation should be vacated because the parties failed to agree about all material terms.  See Ryan v. Ryan, 292 Minn. 52, 55, 193 N.W.2d 295, 297 (1971) (requiring “meeting of the minds on the essential terms of the agreement”).  The proper remedy, however, is to modify the written order.  Default rules can supply material terms.  Thus, we can modify the judgment and eliminate the reservation of maintenance.  If Haroun objects to this modification, she has the option of filing her own motion to vacate the stipulation in district court.

            Ahmed’s other arguments about the written order have no merit.  Although the stipulation does not expressly waive the child-support guidelines, it does provide for an amount of child support that may be greater than the amount provided under the guidelines at a specified income level.  The facts are undisputed that the computation based on Ahmed’s demonstrated income level does not result in a deviation from the guidelines or a violation of the children’s best interests.  Therefore, the order’s statement indicating that the child-support guidelines are waived does not constitute a significant alteration of the stipulation or place into negotiation the unbargainable interests of the children.  Tammen, 289 Minn. at 30, 182 N.W.2d at 842.  The remaining provisions of the written order are consistent with the stipulation. 

            The district court did not abuse its discretion when it denied Ahmed’s motion for a fourth continuance and when it refused to vacate the stipulation or place into negotiation the unbargainable interests of the children.  Because the written order materially altered the oral stipulation, the judgment below must be modified to remove the reservation of maintenance.

            Affirmed as modified.