                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-0209

                                 In re the Marriage of:
                            Thomas Erle Tornstrom, petitioner,
                                      Respondent,

                                            vs.

                                 Jennifer Lynn Tornstrom,
                            n/k/a Jennifer Lynn Klemenhagen,
                                         Appellant.

                                Filed November 21, 2016
                                        Affirmed
                                      Kirk, Judge

                              Houston County District Court
                                 File No. 28-FA-14-911

Joan K. Parke, Laura J. Seaton, Bosshard Parke, Ltd., La Crosse, Wisconsin (for
respondent)

Amber Lawrence, Dittrich & Lawrence, P.A., Rochester, Minnesota (for appellant)

         Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and Bjorkman,

Judge.

                                     SYLLABUS

         1.    A husband and wife consent to a mediated settlement agreement under Minn.

Stat. § 518.619, subd. 7 (2014), and agree that it will be submitted to and enforced by the

district court before it is reduced to a signed marital-termination agreement (MTA) by

orally recording the terms of the settlement and acknowledging their intent to form a

binding agreement.
       2.     The terms of a mediated settlement agreement may be incorporated into a

dissolution judgment and decree and enforced by the district court where the parties had a

meeting of the minds on its essential terms and the agreement was supported by

consideration.

                                      OPINION

KIRK, Judge

       Appealing the marital-dissolution judgment, appellant-wife challenges the terms of

a mediated settlement agreement incorporated into the judgment and decree and enforced

by the district court. Wife argues that the judgment is invalid because: (1) the mediated

settlement agreement was not reduced to an MTA that was signed by both parties before it

was presented to the district court, and (2) the settlement is not an enforceable agreement.

Because the parties orally recorded their agreement to the terms of the settlement,

acknowledged their intent to form a binding agreement, and the settlement is supported by

consideration, we affirm.

                                          FACTS

       In October 2014, respondent-husband Thomas Erle Tornstrom petitioned for

dissolution of his marriage to appellant-wife Jennifer Lynn Tornstrom. At the time the

petition was filed, the parties had two minor children.

       In February 2015, the district court filed temporary orders granting the parties joint

legal and joint physical custody and ordering husband to pay wife temporary spousal

maintenance and child support. It also ordered the parties to undergo a custody evaluation.

Five months later, the custody evaluator submitted his evaluation to the district court. The


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custody evaluation recommended that husband be awarded sole legal custody and sole

physical custody of the children, subject to wife’s reasonable parenting time.

       On September 25, 2015, the parties, along with counsel, met with a mediator. After

eight hours, the parties reached a global settlement. The parties orally confirmed the terms

of their agreement, which the mediator tape recorded. The parties agreed that husband

would have sole legal and sole physical custody of the children, and wife would have

parenting time two weeknights after school and every other weekend. During the summer,

wife would parent the children for alternating three-day weekends, overnight every

Wednesday, and for three non-consecutive weeks. The parties agreed that wife would not

pay husband child support and that husband would not pay wife spousal maintenance.

       The parties also agreed to a property settlement where wife was awarded sole

ownership of her 403(b) plan and a portion of husband’s 401K. Husband was awarded the

marital homestead and agreed to pay wife an additional property settlement. The parties

agreed to split the cost of the mediation session and to pay their own attorney fees.

       Three days later, the mediator e-mailed the parties’ attorneys a letter detailing the

terms of the parties’ mediated settlement. In the e-mail, the mediator thanked the parties’

attorneys for hiring him to mediate and wrote that he was “pleased we were able to resolve

the case. Thank you both for your cooperation in working out what strikes me as a fair

resolution of the case.”

       The mediated settlement agreement stated that “[w]e have settled all issues in the

case” and that husband’s attorney would draft the stipulated findings of fact, conclusions

of law, and order for judgment, and the judgment and decree. Husband’s attorney drafted


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the stipulation, incorporating the terms of the mediated settlement agreement, and sent it

to wife’s attorney. Wife refused to sign the stipulation.

       Husband moved the district court to enforce the terms of the stipulation, or, in the

alternative, to enter a temporary order reflecting the custody evaluator’s custody

recommendations and to cease temporary child support and spousal maintenance. In

separate affidavits, both husband and husband’s attorney alleged that at the conclusion of

an eight-hour mediation session, the parties, in the presence of the mediator and counsel,

stated on a tape recording that they had reached an agreement, that they understood the

terms of the agreement, that they could not change their minds, and that they intended to

be bound by the agreement. Husband’s attorney filed a copy of the written stipulation with

the district court.

       Wife moved to deny husband’s motion in its entirety. In a supplemental affidavit

filed months after the mediation session, wife alleged that she did not consent to the

mediated settlement becoming a permanent order as she believed that mediation was

confidential and that the mediated settlement was not final. She alleged that she felt

pressure to settle during the mediation session because she was advised that the district

court always follows the custody evaluator’s recommendation. Following mediation, she

decided that the parties’ agreement was not in the best interests of the children and that she

could not, in good conscience, agree to its terms.

       After a hearing on the parties’ motion, the district court filed an order finding that

the parties had negotiated a fully mediated settlement under Minn. Stat. § 518.619, subd. 7

(2014), and they did so with the assistance of counsel. The district court based its finding


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of the existence of the agreement on a recording made by the mediator in which the parties,

in the presence of counsel, orally recited that they understood that their agreement would

be presented to the court. The district court also concluded that the parties had entered into

an enforceable contract, and ordered the parties to make a record of their mediated

settlement either before the district court or by stipulation.

       As the parties failed to submit a stipulation, the district court held a hearing to put

the mediated settlement on the record. Over wife’s objection, the district court admitted

two exhibits evincing the parties’ mediated settlement agreement: the mediator’s e-mail to

the parties’ attorneys and the attached letter drafted by the mediator detailing the terms of

the mediated settlement, and the stipulation drafted by husband’s attorney. The district

court approved the stipulation, and judgment was entered dissolving the parties’ marriage.

       Wife appeals.

                                           ISSUES

       1.     Did the district court err in enforcing a mediated settlement agreement that

 was repudiated by wife prior to its signature and presentation to the district court?

       2.     Did the district court err in concluding that the mediated settlement is an

 enforceable contract?

                                         ANALYSIS

I.     The district court did not err in enforcing the mediated settlement agreement.

       We will set aside a district court’s factual findings only if they are clearly erroneous,

and we give deference to the court’s opportunity to evaluate witness credibility. Goldman

v. Greenwood, 748 N.W.2d 279, 284 (Minn. 2008). Factual findings are clearly erroneous


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when they are manifestly against the weight of the evidence or not reasonably supported

by the evidence as a whole. Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723, 726 (Minn.

1985). When determining whether the district court’s findings are clearly erroneous, we

view the record in the light most favorable to the court’s findings. Vangsness v. Vangsness,

607 N.W.2d 468, 472 (Minn. App. 2000). The question of whether a mediated settlement

is enforceable presents a question of law, which we review de novo. Share Health Plan,

Inc. v. Marcotte, 495 N.W.2d 1, 3 (Minn. App. 1993), review denied (Minn. Mar. 30, 1993).

       Wife asserts that a district court cannot enforce a mediated settlement agreement

that has not been reduced to an MTA that is signed by both parties. She contends that the

district court violated Minn. Stat. § 518.619, subd. 7, when it adopted the mediated

settlement because she repudiated it a few days after the mediation session. Whether a

statute has been properly construed is a question of law subject to de novo review. State

v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). Minn. Stat. § 518.619, subd. 7, outlines

the use of alternative dispute resolution (ADR) neutrals in custody or visitation-related

issues as follows:

              An agreement reached by the parties as a result of mediation
              shall be discussed by the parties with their attorneys, if any,
              and the approved agreement may then be included in the
              marital dissolution decree or other stipulation submitted to the
              court. An agreement reached by the parties as a result of
              mediation may not be presented to the court nor made
              enforceable unless the parties and their counsel, if any, consent
              to its presentation to the court, and the court adopts the
              agreement.

       We conclude that the district court did not clearly err in finding that the parties

reached a fully mediated settlement and that they consented to have it submitted to the


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court for approval, as expressed by husband and his attorney in their affidavits, the

mediator’s e-mail and letter, and draft stipulation. Here, the record shows that after eight

hours of mediating with counsel present, the parties reached a global settlement that was

tape-recorded by the mediator. Under Minn. Stat. § 518.619, subd. 7, wife consented to

the settlement being submitted to the district court when the parties orally recorded their

agreement to the terms of the settlement and acknowledged their intent to form a binding

agreement. Following mediation, husband’s attorney reduced the recording to a draft

stipulation that was sent to wife’s attorney for wife’s signature. Wife never claimed that

the draft stipulation was inconsistent with the parties’ mediated agreement. Wife’s later

repudiation of the stipulation does not nullify the settlement that was reached by the parties

at mediation.

       The district court’s admission of the mediated settlement agreement did not violate

Minn. R. Gen. Pract. 114.08(e).        Rule 114.08(e) provides that notes, records, and

recollections of an ADR neutral are confidential, and that “[n]o record shall be made

without the agreement of both parties, except for a memorandum of issues that are

resolved.”1 Here, the mediator’s mediated settlement agreement falls into the exception of

the rule because it is “a memorandum of issues that are resolved.”

       Wife relies on section 25:4(9) of Minnesota Practice that states that a mediated

settlement is unenforceable until it is reduced to an MTA that is signed by both parties and



1
 Minn. Stat. § 518.619, subd. 5 (2014), requires mediation proceedings to be conducted in
private, and provides that all records of a mediation proceeding remain private and not
available as evidence in a marriage dissolution action.

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approved by the district court. 14 Martin L. Swaden & Linda A. Olup, Minnesota Practice

§ 25:4(9) (3d ed. 2008). Section 25:4(9) states that:

                      If the parties are able to reach an agreement through the
              mediation process, the agreement prepared by the mediator
              will be a very basic document setting forth the parties’
              agreement. The mediated agreement must be discussed by the
              parties with their attorneys, and then the attorneys must
              cooperate in reducing the mediated agreement to an
              appropriate marital termination agreement. A mediated
              agreement is not enforceable by either party until such time as
              it is reduced to a marital termination agreement signed by the
              parties and approved by the court.

Id. (emphasis added). A plain reading of the statute does not support such a construction.

There is no language in Minn. Stat. § 518.619 (2014) requiring a mediated settlement to be

reduced to a signed MTA before it is adopted by the district court. While Minnesota

Practice remains a valuable resource for practitioners in understanding the nuances of

statutes and caselaw, it is not binding legal authority.

       Wife next relies upon In re Marriage of Rettke, 696 N.W.2d 846 (Minn. App. 2005),

to argue that, like in the case here, mediated settlements that are signed by only one party

are not enforceable. In Rettke, this court reversed the district court’s enforcement of a

mediated property settlement that was incorporated into an MTA, but only signed by

husband and his attorney. Id. at 849. Rettke is distinguishable from this case chiefly

because the husband in Rettke died before the dissolution was finalized, and wife refused

to sign the MTA because it included additional provisions and modifications to the agreed-

upon provisions of the mediated settlement agreement. Id. Here, wife has never disputed




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the district court’s finding that the draft stipulation accurately reflected the terms of the

parties’ agreement.

       We conclude that the parties’ mediated settlement agreement does not violate Minn.

Stat. § 518.619 and that the district court did not err in adopting the parties’ agreement.

II.    The district court did not err in finding that the mediated settlement agreement
       is an enforceable contract.

       On this record, the district court did not err in finding that the parties entered into a

binding contract. Settlement of disputes without litigation is highly favored. See Schmidt

v. Smith, 299 Minn. 103, 107-08, 216 N.W.2d 669, 671-72 (1974); see also Hentschel v.

Smith, 278 Minn. 86, 92, 153 N.W.2d 199, 204 (1967) (stating that “[t]his court has always

supported a strong public policy favoring the settlement of disputed claims without

litigation”). Courts also favor the use of stipulations in dissolution proceedings. Shirk v.

Shirk, 561 N.W.2d 519, 521 (Minn. 1997). Stipulations are treated as binding contracts.

Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984). When a district court has

yet to adopt the parties’ stipulation or incorporate it into a dissolution judgment, a party

cannot repudiate or withdraw from the stipulation absent the other party’s consent or the

court’s permission. Toughill v. Toughill, 609 N.W.2d 634, 638 (Minn. App. 2000).

       Wife argues that the district court erred in finding that the parties reached a meeting

of the minds because she was told that she would have additional time after mediation to

review the stipulation before signing it. She points to her refusal to sign the stipulation as

evidence that there was not unequivocal assent to the terms of the proposed agreement.

She also disputes the district court’s reliance upon husband and his attorney’s version of



                                               9
events, asserting that their affidavits do not constitute compelling proof of what the parties

agreed to during the mediation session.

       A mediated settlement agreement is in the nature of a contract. Theis v. Theis, 271

Minn. 199, 204, 135 N.W.2d 740, 744 (1965); see Chalmers v. Kanawyer, 544 N.W.2d

795, 797 (Minn. App. 1996) (stating settlement agreements are contractual in nature and

are binding on the parties). Agreement to a mediated settlement requires a meeting of the

minds on the essential terms of the agreement. Ryan v. Ryan, 292 Minn. 52, 55, 193

N.W.2d 295, 297 (1971). “To constitute a full and enforceable settlement, there must be

such a definite offer and acceptance that it can be said that there has been a meeting of the

minds on the essential terms of the agreement.” Jallen v. Agre, 264 Minn. 369, 373, 119

N.W.2d 739, 743 (1963). Whether parties reach an objective meeting of the minds on the

essential elements of a contract is a question of fact, which this court reviews under the

clear-error standard. Morrisette v. Harrison Int’l Corp., 486 N.W.2d 424, 427 (Minn.

1992) (stating that “the existence and terms of a contract are questions for the fact finder”);

Minn. R. Civ. P. 52.01 (providing that a district court’s findings of fact are subject to a

clearly erroneous standard of review).

       Here, the parties’ recorded statements that they agreed to the terms of the settlement

and that they intended to be bound demonstrate a meeting of the minds. A settlement does

not need to be in writing and will be enforced when the facts show that the required

contractual elements have been met. Jallen, 264 Minn. at 373, 119 N.W.2d at 742-43. The

mediated settlement was also supported by legal consideration. Kielley v. Kielley, 674

N.W.2d 770, 777 (Minn. App. 2004). “Consideration may consist of either a benefit


                                              10
accruing to a party or a detriment suffered by another party.” Id. (quotation omitted). Here,

wife waived a contested custody hearing, in exchange for the mediated settlement, and the

parties agreed that wife would not pay child support, which would have been required

under Minnesota law. Husband acted in reliance on the agreement by preparing all of the

necessary paperwork to effectuate the settlement, refinancing the real estate, and paying

monies to wife as required by the agreement.

       Contrary to wife’s claim that there is insufficient evidence on the record to

demonstrate a meeting of the minds, the affidavits of husband and husband’s attorney

constitute direct evidence of the terms of the mediated settlement. See, e.g., Minn. R. Civ.

P. 56.05 (in a summary judgment motion, “[s]upporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as would be admissible in

evidence”). The district court acted within its discretion when it credited husband and

husband’s attorney’s version of events over wife’s version. Vangsness, 607 N.W.2d at 472

(noting that “appellate courts defer to trial court credibility determinations”). Further, wife

does not allege the existence of any material differences in the terms of the agreement. For

these reasons, the district court did not err in concluding that the parties’ mediated

settlement constituted an enforceable contract.

       Finally, wife asks this court to vacate the dissolution judgment on the ground that

she felt pressure to sign the stipulation without having additional time to review it in its

entirety before she signed it. We review a district court’s decision to vacate a dissolution

judgment for abuse of discretion. Toughill, 609 N.W.2d at 639. But there is no such

decision here. The record does not establish that wife moved the district court to vacate


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the judgment; hence, we do not consider her request on appeal. Thiele v. Stich, 425 N.W.2d

580, 582 (Minn. 1988).

                                    DECISION

      The district court properly adopted a stipulation reflecting the parties’ mediated

settlement agreement despite wife’s repudiation of the agreement before it was reduced to

an MTA that was signed by both parties. Wife consented to the settlement being submitted

to the district court when the parties, who were represented by counsel, orally recorded

their agreement to the terms of the settlement and acknowledged their intent to form a

binding agreement. The agreement is also a binding contract as the parties reached a

meeting of the minds on its essential terms, and it was supported by consideration.

      Affirmed.




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