                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-0194

                               In re the Marriage of:
                        Rachelle Frances Norgren, petitioner,
                                    Respondent,

                                         vs.

                                Randy Dean Norgren,
                                    Appellant.

                               Filed October 19, 2015
                                      Affirmed
                                   Peterson, Judge

                           Otter Tail County District Court
                              File No. 56-FA-08-1528

Dennis W. Hagstrom, Fergus Falls, Minnesota (for respondent)

Charles A. Krekelberg, Krekelberg, Skonseng & Miller, PLLP, Pelican Rapids,
Minnesota (for appellant)

      Considered and decided by Peterson, Presiding Judge; Stauber, Judge; and

Klaphake, Judge.*




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                        UNPUBLISHED OPINION

PETERSON, Judge

      In this post-dissolution appeal, appellant husband argues that the dissolution

judgment should be reopened to permit a civil judgment for damages to be included in

the marital estate and divided between the parties. We affirm.

                                         FACTS

      The 32-year marriage of appellant-husband Randy Dean Norgren and respondent-

wife Rachelle Frances Norgren was dissolved on February 5, 2014. The parties’ marital

income was derived from a farm, a gas station, and wife’s employment in health care.

After wife petitioned to dissolve the marriage in 2008, the district court issued a

temporary order directing husband to manage the parties’ farm and share with wife 50%

of any profits from the farm after deducting related expenses.

      While the temporary order was in effect, in January 2011, Roger Halverson

brought a trespass lawsuit against husband for damages caused by three of husband and

wife’s cows. The cows allegedly got out of a fenced pasture, wandered onto Halverson’s

property, and, over the course of a week, damaged numerous trees on Halverson’s

property, which is a commercial tree operation. Halverson sought $31,250 in actual

damages and statutory treble damages for trespass involving damage to trees, as provided

for under Minn. Stat. § 561.04 (2010).

      According to husband, because he reads at a first-grade level, either his daughter

or wife assisted him in reading and answering the trespass complaint. When husband

received a motion for summary judgment in the trespass action on August 16, 2013, his


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daughter read the motion papers to him, but he did not respond to the motion. Husband

also did not attend the summary-judgment hearing because “[he] didn’t think [he] had to

in order to get a trial date.” On September 23, 2013, the district court granted summary

judgment in favor of Halverson and ordered entry of judgment in the claimed amount of

$93,750.

      Also on September 23, 2013, husband and wife entered into an oral stipulation that

was incorporated into the dissolution judgment. Husband asserts that he was not aware

of the trespass judgment until January 2014. The dissolution judgment was entered on

February 5, 2014.

      In an August 7, 2014 order, the district court denied husband’s motion to vacate

and set aside the trespass judgment. The court rejected husband’s arguments that (1) the

judgment was the result of his excusable neglect and included factual misrepresentations

and (2) the damages award was inequitable.

      On August 28, 2014, husband moved to reopen and modify the dissolution

judgment to include the damages awarded in the trespass judgment as a marital debt to be

divided between the parties. Following a hearing, the district court denied the motion,

ruling that husband is solely responsible for the trespass damages because he had not

shown excusable neglect, mistake, or inequity to support reopening the dissolution

judgment and decree under Minn. Stat. § 518.145, subd. 2(1), (5) (2014). This appeal

followed.




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                                     DECISION

       Whether to reopen a dissolution judgment and decree under Minn. Stat. § 518.145,

subd. 2, is a decision within the district court’s discretion. Clark v. Clark, 642 N.W.2d

459, 465 (Minn. App. 2002). “The moving party bears the burden of establishing a basis

to reopen the judgment and decree.” Thompson v. Thompson, 739 N.W.2d 424, 428

(Minn. App. 2007). A district court abuses its discretion if it acts “against logic and the

facts on record.” Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).

       A dissolution stipulation is considered a binding contract. Shirk v. Shirk, 561

N.W.2d 519, 521 (Minn. 1997); see Anderson v. Anderson, 303 Minn. 26, 32, 225

N.W.2d 837, 840 (1975) (stating that courts favor the use of stipulations in dissolution

proceedings and that “[w]here the parties stipulate as to the facts, the effect of the

stipulation is to take the place of evidence”). A stipulation may be vacated for equitable

reasons, but “upon entry of a judgment and decree based on a stipulation, different

circumstances arise, as the dissolution is now complete and the need for finality becomes

of central importance.” Shirk, 561 N.W.2d at 521-22. A dissolution decree is final when

entered, subject to the right of appeal. Minn. Stat. § 518.145, subd. 1 (2014).

       The statute governing reopening a dissolution judgment and decree provides:

                     On motion and upon terms as are just, the court may
              relieve a party from a judgment and decree, order, or
              proceeding under this chapter, except for provisions
              dissolving the bonds of marriage, annulling the marriage, or
              directing that the parties are legally separated, and may order
              a new trial or grant other relief as may be just for the
              following reasons:
                     (1) mistake, inadvertence, surprise, or excusable
                     neglect;


                                             4
                     (2) newly discovered evidence . . .;
                     (3) fraud . . . or other misconduct of an adverse party;
                     (4) the judgment and decree or order is void; or
                     (5) . . . it is no longer equitable that the judgment and
                     decree or order should have prospective application.

                     The motion must be made within a reasonable time,
                     and for a reason under clause (1), (2), or (3), not more
                     than one year after the judgment and decree, order, or
                     proceeding was entered or taken.

Minn. Stat. § 518.145, subd. 2.

       In the district court, husband asserted two statutory grounds for reopening the

dissolution judgment and decree: “[m]istake, inadvertence, surprise, or excusable

neglect,” and that it was not “equitable” to exclude the trespass damages from the

dissolution judgment and decree. On appeal, husband asserts that the trespass judgment

was excluded by “mistake,” the trespass judgment constitutes an “encumbrance” on the

farm operation that the dissolution decree directs to be distributed to both parties, and the

district court’s decision was an abuse of discretion and inequitable.

       Mistake/excusable neglect.

       There are several undisputed facts that make husband’s failure to raise the issue of

the outstanding trespass judgment during the dissolution proceeding not excusable and

not a mistake: (1) husband admittedly became aware of the trespass judgment in January

2014, but he did not inform the district court about the judgment until August 2014, six

months after the February 2014 dissolution judgment was entered; (2) although husband

admitted that he received the trespass complaint and responded to it, he incorrectly

concluded that the trespass lawsuit had “gone away” and did not account for potential



                                             5
damages from the lawsuit in the proposed dissolution stipulation; (3) husband did not

appear at the summary-judgment hearing in the trespass action, although he admitted that

he received notice of the hearing; and (4) husband was represented by counsel in the

dissolution action, and the district court in the trespass action found that husband had

been involved in prior lawsuits, all of which should have prompted him to seek legal

counsel in the trespass action. See Black v. Rimmer, 700 N.W.2d 521, 527 (Minn. App.

2005) (stating that a party’s neglect that leads to an adverse judgment is inexcusable),

review dismissed (Minn. Sept. 28, 2005); Elk River Enters., Inc. v. Adams, 357 N.W.2d

139, 140 (Minn. App. 1984) (stating that a party’s nonappearance at a hearing is not

excusable when it is intentional).

       In rejecting husband’s excusable-neglect argument, the district court stated that

husband

              knew of the [trespass] judgment prior to the final hearing and
              entry of the Judgment and Decree on February 5, 2014. His
              neglect has been found inexcusable in the [trespass] matter
              and due to his knowledge of the [trespass] lawsuit and
              judgment prior to entry of the Judgment and Decree, this
              Court must find that [husband] has not made a showing of
              excusable neglect.

The district court’s reasoning is not against logic and the facts on record.

       The district court also found that husband failed to meet his burden to show that

the failure to address the trespass damages in the dissolution judgment and decree was a

mistake. Husband’s awareness of the trespass judgment before the dissolution judgment

became final contradicts his claim of mistake. The district court found that husband “was

aware of the [trespass] judgment against him prior to its entry” and could have taken


                                              6
actions to correct the omission of the trespass judgment in the dissolution stipulation, but

did not. Again, the district court’s reasoning is not against logic and the facts on record.

       Husband’s actions do not show excusable neglect or mistake within the meaning

of Minn. Stat. § 518.145, subd. 2(1). The district court did not abuse its discretion in

denying husband’s motion to reopen the dissolution judgment and decree to include the

damages awarded in the trespass action.

       Other issues.

       Husband included two additional issues in his appellate brief. Husband argues

that (1) the trespass judgment is an encumbrance included under the provision in the

judgment and decree that requires payment of all outstanding mortgages and

encumbrances on the premises awarded to the parties as tenants in common to be sold by

auction; and (2) the district court’s decision was “arbitrary and capricious and contrary to

law, and therefore an abuse of discretion and inequitable in consideration of the facts in

this particular case.”

       (1)    The decree awarded the farm to the parties as tenants in common, required

the farm to be sold, and required that the sale proceeds be distributed equally to the

parties after, among other actions, “all the outstanding mortgages and encumbrances on

the premises” are paid off. The issue whether the trespass judgment constituted an

encumbrance on the farm was not raised in the district court, and the district court did not

consider the issue. We, therefore, decline to address the issue for the first time on appeal.

See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (explaining that an appellate court




                                              7
will only consider issues on appeal that were presented to and considered by the district

court).

          (2)    Husband combines a general argument that the district court’s decision not

to reopen the dissolution judgment was an abuse of discretion with an argument that the

district court should have reopened the dissolution judgment for equitable reasons under

Minn. Stat. § 518.145, subd. 2(5).        “[T]o reopen a judgment and decree because

prospective application is no longer equitable, the inequity must result from the

development of circumstances substantially altering the information known when the

dissolution judgment and decree was entered.” Thompson, 739 N.W.2d at 430 (quotation

omitted).       The district court considers “whether there is inequity in prospective

application of the judgment and decree as a result of the development of circumstances

beyond the parties’ control that substantially alter the information known when the

judgment and decree was entered.” Id. at 431 (emphasis added).

          Husband does not identify any circumstances that substantially alter the

information known to him when the dissolution judgment was entered, nor does the

record suggest the existence of such information. Husband, therefore, has not identified

any changed circumstances necessary to reopen the dissolution on the theory that it is no

longer equitable. Furthermore, other facts suggest, and the district court found, that

appellant’s neglect in defending the trespass action vitiates his equity claim now, because




                                              8
he could have taken actions that may have successfully defended against the trespass

action, or at least reduced the damages award.

      Affirmed.




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