Maureen M. O'Phelan, Lawrence D. Olson & Associates, P.A., 2860 Snelling Avenue North, St. Paul, MN 55113 (for Appellant)

Kathleen Worner Kissoon, Kissoon, Clugg, Linder & Dittberner, Ltd., 3205 West 76th Street, Edina, MN 55435-5244 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Peterson, Judge.

In an appeal from three separate orders in a dissolution action, William Shea challenges the district court's refusal to vacate a stipulated property distribution, appointment of a receiver to implement the stipulated distribution, citation against him for contempt for failure to timely pay child support and maintenance, requirement that he pay Gale Shea's attorneys' fees and costs, and rejection of his motion for removal. The district court's orders were within the judge's discretion and have a factual basis in the record. We affirm and allow attorneys' fees.

Between March 1993 and October 1995, the district court entered four additional orders, twice compelling William Shea to comply with discovery, twice requiring William Shea to deposit proceeds of the sale of his dental practice into escrow, and twice finding William Shea in contempt--first, for failure to make the deposit and then for failure to make timely support and maintenance payments.

In October 1995 William and Gale Shea settled the remaining dissolution issues and in February 1996 they stipulated to the settlement terms on the record in district court. Entry of judgment was contingent on William Shea's depositing the $152,000 final property distribution into a trust account.

William Shea did not deposit the money, and the judgment and decree was not forwarded to the court. On motions by Gale Shea, the district court again found William Shea in contempt for untimely support and maintenance payments, ordered the appointment of a receiver to secure the $152,000 escrow, and ordered William Shea to pay Gale Shea's late-payment mortgage penalties and attorneys' fees. William Shea petitioned this court for a writ of prohibition to prevent the appointment of a receiver and for a writ of mandamus to force the district court to either enter final judgment or vacate the stipulation. This court denied both petitions.

In October 1996 the district court ordered the receiver to sell William Shea's newly constructed home, valued at $457,577 with a mortgage of $360,000, and grant Gale Shea a lien for $152,000. In November the court denied William Shea's motion for removal, finding that he failed to make an affirmative showing of prejudice. In its final order, the court denied William Shea's motion for reconsideration.

William Shea appeals the September 24, 1996 order appointing the receiver, the October 31, 1996 order rejecting William Shea's motion for removal, and the November 1, 1996 order denying the motion for reconsideration and granting Gale Shea attorneys' fees.

Factors influencing the court's determination to vacate a stipulation are whether the party seeking the vacation was represented by competent counsel, participated in detailed negotiations, agreed to the terms of the stipulation, and indicated to the court an understanding of the stipulation's terms and a belief that they were fair and equitable. Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984). William Shea concedes that the factors outlined in Tomscak have been met, but, relying on John v. John, 322 N.W.2d 347, 348 (Minn. 1982), argues that he "improvidently" entered into the agreement and should be released.

The circumstances underlying the Sheas' stipulation are substantially different from those in John. The stipulation set aside in John was incompletely stated and entered into by an unrepresented and unprepared litigant. Id. The Sheas' stipulation followed nearly two years of discovery and motion hearings. The terms were decided four months before the stipulation was formally entered on the record. William Shea was represented, had ample notice of the terms, and has not demonstrated that he was unprepared or failed to understand the terms of the agreement.

William Shea alternatively argues that his performance under the agreement should be suspended under a theory of contractual impossibility. Performance of a contractual duty may be excused when performance becomes impossible or impracticable due to the existence of a fact or circumstance of which the promisor, at the time of the making of the contract, neither knew nor had reason to know. Powers v. Siats, 244 Minn. 515, 520, 70 N.W.2d 344, 348 (1955). But performance is not excused when the impossibility or impracticability of performance is wholly attributable to the subjective inability of the promisor. Id. See also Restatement (Second) of Contracts § 261 (1981) (performance not discharged when impracticability created by person seeking relief).

Shea testified that he had built a new home worth between $490,000-$500,000, that he used the proceeds from the sale of his dental practice to pay debts to establish a new practice, that he was paying his fiance $60,000 a year as a dental hygienist, that he had purchased a fur coat and a $14,000 ring for his fiance, that he had taken vacations to the Cayman Islands and North Carolina, that he had paid for a vacation for his office staff and their spouses at Grandview Lodge, and that he had purchased a new boat and dock. The record demonstrates that any inability to pay Gale Shea has been caused by William Shea spending his money elsewhere. Because he created the circumstances which he now claims make it impossible for him to comply, he is not entitled to release from the stipulation.

Generally, a receiver is appointed pursuant to Minn. Stat. § 576.01, and the district court must make findings justifying the appointment. See Brown v. Muetzel, 358 N.W.2d 725, 727-28 (Minn. App. 1984). But the statutory procedure for the appointment of a receiver is not exclusive, and there are situations not covered by the statute that may justify appointment of a receiver. Minnesota Hotel Co., Inc. v. ROSA Dev. Co., 495 N.W.2d 888, 892 (Minn. App. 1993). Under its general equity powers, the district court may appoint receivers "in other cases in accordance with existing practice." Asleson v. Allison, 188 Minn. 496, 499, 247 N.W. 579, 580 (1933). Further, because a district court is "guided by equitable principles in determining the rights and liabilities of the parties upon a dissolution of the marriage relationship[,]" the district court "has inherent power to grant equitable relief `as facts in each particular case and the ends of justice may require.'" Delarosa v. Delarosa, 309 N.W.2d 755, 758 (Minn. 1981) (quoting Johnson v. Johnson, 280 Minn. 81, 86, 158 N.W.2d 249, 254 (1968).

Because the district court is not limited to the § 576.01 provisions, the reasons for appointment are not required to be explicitly stated. But the appointment of a receiver is a harsh remedy, and the record must contain facts justifying it.

The record adequately supports the district court's appointment of a receiver. During the dissolution proceedings, William Shea sold his dental practice without informing the court or Gale Shea, refused to comply with a court order to place the cash remaining from the sale into escrow until the requirement became part of a contempt proceeding, disregarded multiple court orders, and used marital assets for personal purchases. Because these actions reflect disregard of the court's authority and irresponsible use of marital resources, the district court's appointment of a receiver was justified.

The district court addressed William Shea's allegations of bias in its order denying removal. We have independently reviewed both the allegations and the record and find no factual support for the misconduct claims. The district court's forceful language is proportional to the difficulties presented by the litigation and William Shea's noncompliance with court orders. The claims of misconduct lack the "affirmative showing of prejudice" required by Minn. R. Civ. Pro. 63.03.

The contempt order provided for William Shea's immediate incarceration if he failed to comply. William Shea argues that this provision deprives him of the second-stage hearing required under Hopp v. Hopp, 279 Minn. 170, 174-75, 156 N.W.2d 212, 216-17 (1968), and Mahady v. Mahady, 448 N.W.2d 888, 891 (Minn. App. 1989).

A conditional civil contempt order, or one which directs consequences only if the contemnor fails to purge the contempt, is not final or appealable. See Becker v. Becker, 300 Minn. 512, 513, 217 N.W.2d 849, 850 (1974) (holding defendant in contempt for failure to pay child support and stating that conditional contempt orders are nonappealable); Rohrman v. Moore, 423 N.W.2d 717, 721 (Minn. App. 1988) (stating that conditional contempt order, where trial court imposes conditional sentence after finding of contempt, is nonappealable); cf. Tell v. Tell, 383 N.W.2d 678, 685 (Minn. 1986) (holding defendant had right to appeal from contempt order included in a trial court's final judgment).

We disagree with William Shea's characterization of the contempt order as final and unconditional. He has not been charged with nonperformance of the purging conditions nor denied a second-stage hearing. Furthermore, at the October 30, 1996 hearing, the district court stated, on the record, that "if it's alleged that William Shea violated the purge conditions, then he's entitled to another hearing at which it has to be proven that he did, in fact, violate it before I can send him to jail." See Mower County Human Servs. ex rel. Swancutt v. Swancutt, 551 N.W.2d 219, 224 (Minn. 1996) (allowing the district court to impose ongoing obligation on contemnor as purging condition but requiring that nonperforming party be given opportunity to show compliance or his reasons for failure). The district court has not violated William Shea's right to a second-stage hearing.

Gale Shea's temporary physical custody allows her to make decisions for the routine care of the children. Minn. Stat. § 518.003, subd. 3(c) (1996). There is no allegation or evidence that the youngest child is endangered by Gale Shea's arrangements. The facts do not establish extraordinary circumstances providing a basis for review.

Gale Shea has requested attorneys' fees on appeal. We have reviewed the relative financial resources of the parties and the parties' contribution to the length and expense of the proceedings, and we award Gale Shea $2,000 for attorneys' fees associated with this appeal.

Affirmed.