In re the Marriage of: Carolynn Bitker, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1749

In re the Marriage of:
Carolynn Bitker, petitioner,
Appellant,

vs.

David Bitker,
Respondent.

Filed November 5, 2018
Affirmed
Bjorkman, Judge

Hubbard County District Court
File No. 29-FA-16-1281

Michael R. Ruffenach, Ruffenach Law Office, Laporte, Minnesota (for appellant)

Steven R. Peloquin, Alicia N. Norby, Peloquin Law Office, Park Rapids, Minnesota (for
respondent)

Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and
Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
On appeal from a dissolution judgment based on the parties’ mediated settlement
agreement, wife argues that the district court erred by enforcing the mediated settlement

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agreement over wife’s objections and declining to reopen the resulting judgment for fraud,
and abused its discretion by awarding husband attorney fees. We affirm.
FACTS
Appellant-wife Carolynn Bitker and respondent-husband David Bitker were
married on September 5, 1998. On October 13, 2016, wife filed a petition for dissolution
of the marriage. On February 16, 2017, the parties participated in mediation. Both parties
were represented by an attorney. Wife was also accompanied by a mental-health worker
and a friend. The m ediation session lasted approximately four hours. After reaching
agreement on all issues, the parties signed a document titled Mediated Agreement Property
Settlement (agreement), which indicated it was “binding ” and that both parties had “fully
disclosed the nature of all assets and liabilities. ” Wife received three real properties, a
vehicle, a trailer, two scooters, listed personal-property items, and $15,000 cash. Husband
received all real and personal property items in his possession that were not awarded to
wife. Husband also received all real estate not awarded to wife. The parties also agreed
that neither was responsible to the other for “temporary or permanent maintenance.”
On March 20, h usband’s attorney forwarded proposed stipulated findings of fact,
conclusions of law, and order for judgment incorporating the terms of the agreement to
wife’s attorney.1 One month later, wife’s mental-health worker advised husband’s attorney
that wife would not sign the proposed stipulation. The same day, wife discharged her
attorney and hired a new attorney.

1 Wife has never asserted that the proposed stipulated findings , conclusions, and order for
judgment differed in any material way from the agreement.

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Husband moved the district court to enforce the terms of the agreement and to
impose conduct-based attorney fees . Wife filed her own motion, an opposing
memorandum, and an affidavit explaining that she refused to sign the proposed stipulation
because she was on narcotic pain medication during the mediation, did not understand what
was happening, and husband failed to accurately disclose his assets. Wife did not request
an evidentiary hearing. Husband filed a responsive affidavit . The district court declined
to consider wife’s motion and husband’s affidavit because they were untimely. But, in
granting husband’s motion, the district court considered wife’s two arguments. The district
court found that the parties were aware of wife’s medical situation at the time of the
mediation, but there is no evidence that wife was impaire d or did not understand the
proceeding. And in the dissolution judgment, the court expressly found that each party
fully disclosed his or her assets, income, financial circumstances, and other relevant
information. The district court awarded husband $772 in attorney fees and costs associated
with husband’s motion.
Wife moved for a new trial, averring in her supporting affidavit that husband “failed
to accurately disclose his assets and that failure is tantamount to fraud on the mediator, the
mediation process, and resulted in a fraud upon the court.” Husband interposed an affidavit
stating that he never concealed his assets, he discussed all of his assets with the mediator,
and wife knew of all husband’s assets during the mediation . Husband also moved the
district court for an order directing wife to vacate real property assigned to him and to
award him an additional $750 in attorney fees.

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At the motion hearing, husband argued that wife did not seek appropriate relief
because there had never been a tria l. Husband also asserted that, although the agreement
was drafted to award specific interests in specific properties and did not “itemize every
little detail,” everything was disclosed during the mediation. The district court permitted
wife to file a posthearing supplemental brief, in which she recharacterized her motion as
“a motion to reopen under Minn. Stat. § 518.145 , subd. 2(3) [(2016)].” The district court
denied wife’s motion, reasoning that relief was not available under Minn. R. Civ. P. 59.01
as no trial had ever occurred. Wife appeals.
D E C I S I O N
I. The district court did not err by enforcing the parties’ agreement.

In a marriage dissolution proceeding, “[t]he question of whether a mediated
settlement agreement is enforceable presents a question of law, which we review de novo.”
Tornstrom v. Tornstrom, 887 N.W.2d 680, 68 4 (Minn. App. 2016), review denied (Minn.
Feb. 14, 2017). Such agreements are governed by principles of contract law, including the
requirements that there is a meeting of the minds and consideration. Id. at 686 (upholding
a mediated settlement that satisfied the required contractual elements). And a mediated
dissolution agreement must contain a provision stating that the agreement is binding and a
provision stating that
the parties were advised in writing that (a) the mediator has no
duty to protect their interests or provide them with information
about their legal rights; (b) signing a mediated settlement
agreement may adversely affect their legal rights; and (c) they
should consult an attorney before signing a mediated
settlement agreement if they are uncertain of their rights.

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Minn. Stat. § 572.35, subd. 1 (2016). Wife does not challenge the agreement’s compliance
with the statutory requirements. And she does not argue, as she did in the district court,
that her use of pain medication affected her ability to enter into the agreement.
Wife argues that the district court erred by enforcing the agreement because it did
not effectuate a just and equitable division of assets as required by Minn. Stat. § 518.58,
subd. 1 (2016). She contends that husband failed to fully disclose the existence and value
of his assets, and the “true nature of the outstanding liabilities.” And she criticizes the
district court’s failure to make findings regarding the parties’ assets, liabilities, income,
and expenses. These arguments are unavailing.
All of the cases wife relies on involve property or spousal-maintenance awards
following contested hearings—not enforcement of a settlement agreement.2 “Courts favor
stipulations in dissolution cases as a means of simplifying and expediting litigation, and to
bring resolution to what frequently has become an acrimonious relationship between the
parties.” Shirk v. Shirk , 561 N.W.2d 519, 521 ( Minn. 1997). It would defeat the very

2 Relying on Videen v. Peters , wife asserts that “[e]ven when the record supports the
[district] court’s decision, the failure to make specific findings of fact compels a remand.”
438 N.W.2d 721, 723 (Minn. App. 1989), review denied (Minn. June 21, 1989). This
argument is misplaced. Videen involved modification of child support and spousal
maintenance based on changed financial circumstances. This court remanded because the
district court did not make particularized findings regarding the parties’ changed financial
and other circumstances. Id. at 724. Two other cases cited by wife, both of which discuss
specific findings, likewise lend no support for her argument. See Stich v. Stich, 435 N.W.2d
52, 53 (Minn. 1989) (noting that the district court’s findings were insufficient to enable an
appellate court to determine whether the district court had properly considered statutory
requirements for awarding spousal maintenance); Dougherty v. Dougherty , 443 N.W.2d
193, 194 -95 (Minn. App. 1989) (noting that a district court’s order must contain
particularized findings of fact to support a maintenance determination).

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purpose of a stipulation to require a district court, when entering a stipulated judgment, to
make findings of fact regarding an agreed-to property division.
Moreover, wife did not request an evidentiary hearing on the issue of nondisclosure
under Minn. R. Gen. Prac. 303.03(d)(2). Accordingly, the district court applied contract
principles, looking to the agreement itself—which specifically stated the “parties mutually
agree that they have fully disclosed the nature of all assets” —and the parties’ affidavits
and legal arguments. Wife does not contest the findings the district court made in its order
enforcing the agreement. Indeed, she specifically challenges only one finding of fact in
the dissolution judgment —that DLI Rentals, a storage and moving business husband
received, had no independent value. We will set aside a district court’s findings of fact
only if clearly erroneous , viewing the record in the light most favorable to the district
court’s findings. Tornstrom, 887 N.W.2d at 683. As wife fails to cite any record evidence
demonstrating clear error, her challenge to this finding fails.
Wife next contends the agreement “was so one sided it hardly fulfills the
requirements of a fair agreement.” We disagree. The agreement awards assets and debts
to both parties, resulting in benefits and detriments to both. Husband received a majority
of the real estate and vehicles, but also a majority of the debt. Wife received three real
properties, a vehicle, a tra iler, two scooters, and a number of personal -property items

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including jewelry, a golf cart, a bedroom set, and a refrigerator. Additionally, husband was
required to pay wife $15,000.3
Finally, wife argues that the district court failed to exercise its independent duty to
fully and fairly review the agreement to protect the interests of both parties, ensure
taxpayers are adequately protected, and that one party is not dependent on public assistance
to survive. She cites Karon v. Karon, 435 N.W.2d 501, 504 (Minn. 1989), for the principle
that a district court must ensure that a stipulation is “fair and reasonable to all.” While we
agree that parties cannot, by stipulation, divest a district court of its authority to evaluate
the fairness of an agreement, we are convinced that the district court properly exercised
that authority here. The district court reviewed the agreement and concluded that it is “fair
and equitable .” The record amply supports this conclusion. The parties reached their
agreement afte r four hours of mediat or-led negotiations. B oth were represented by
counsel, and wife was accompanied by two additional support persons. The agreement
clearly expresses its terms and states that both parties had “fully disclosed the nature of all
assets and liabilities.” After reviewing all of wife’s arguments, we conclude that the district
court did not err by enforcing the agreement.
In her reply brief, wife argues that the agreement does not reflect a meeting of the
minds and is not supported by adequate consideration. We generally do not consider issues
presented for the first time in a reply brief. See Wood v. Diamonds Sports Bar & Grill,

3 On this record, we are able to conduct only a gross comparison of the assets distributed
to each party in accordance with the agreement because some assets are not valued. On its
face, the agreement does not demonstrate an inequitable division of assets.

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Inc., 654 N.W.2d 704, 707 (Minn. App. 2002) (“ If an argument is raised in a reply brief
but not raised in an a ppellant’s main brief, and it exce eds the scope of the respondent’ s
brief, it is not properly before this court and may be stricken from the reply brief.”), review
denied (Minn. Feb. 26, 2003). Even if we consider wife’s arguments on their merits, they
essentially boil down to one point—that the agreement is not enforceable because husband
misrepresented his assets during the mediation. We fully address this issue below.
II. The district court did not abuse its discretion by denying wife’s motion to
reopen the dissolution judgment due to fraud.

A district court may relieve a party from a dissolution judgment and order a new
trial if the other party committed fraud. Minn. Stat. § 518.145, subd. 2(3). If relief is
requested within one year after entry of judgment, a party need only show ordinary fraud,
not fraud upon the court. Doering v. Doering, 629 N.W.2d 124, 129-30 (Minn. App. 2001),
review denied (Minn. Sept. 11, 2001). Ordinary fraud, in a dissolution context, do es not
require an affirmative misrepresentation or an intentional course of concealment because
parties to a marriage dissolution have a duty to disclose all assets and liabilities completely
and accurately. Id. We review a district court’s decision whet her to reopen a dissolution
judgment based on fraud for an abuse of discretion. Thompson v. Thompson, 739 N.W.2d
424, 428 (Minn. App. 2007). “If there is evidence to support the district court’s decision,
an abuse of discretion will not be found.” Id.
Wife moved the district court for a new trial and, in her supplemental submission,
to reopen the judgment under Minn. Stat. § 518.145. She asserted, among other things,
that the order enforcing the agreement “was a result of fraud upon the court.” Wife

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submitted affidavits averring that husband committed fraud by failing to disclose his assets.
Husband filed a responsive affidavit generally asserting that wife knew about all of the
marital assets, he did not conceal any assets, and he discussed all of his assets with the
mediator.
The district court denied wife’s motion on the ground it was not proper as there was
no trial. See Shirk, 561 N.W.2d at 522-23 (stating that the sole relief from the judgment
and decree is Minn. Stat. § 518.145, subd. 2). The court did not explicitly address the
merits of wife’s fraud argument.
On appeal, error is not presumed. Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949).
Rather, a party seeking reversal must affirmatively establish that error occurred. Id. And
if a district court fails to explicitly address an argument that it knew or should have known
needed to be addressed, we generally assume that the district court implicitly rejected the
argument. Palladium Holdings, LLC v. Zuni Mortg. Loan Trust 2006 -OA1, 775 N.W.2d
168, 177-78 (Minn. App. 2009) (“Appellate courts cannot assume a district court erred by
failing to address a motion, and silence on a motion is therefore treated as an implicit denial
of the motion.”), review denied (Minn. Jan. 27, 2010). Here, the record indicates that the
question of reopening the judgment for fraud was adequately presented to the district court.
Accordingly, we assume that the district court implicitly rejected wife’s fraud argument on
its merits.
As noted above, the parties filed conflicting affidavits regarding husband’s
disclosures of asset and income information before and during the mediation . Wife’s
affidavit states that husband failed to disclose 28 acres of land, a six -bedroom home,

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several vehicles, scooters, a 445 Minneapolis Moline tractor, 96 storage units, tools, a toy
tractor, and a collector’s business with $2.5 million in assets. Husband’s affidavit avers ,
among other things, that he does not own a six-bedroom home or 28 acres of land, and that
many of the other assets wife claims he did not disclose are listed in the proposed stipulated
facts his attorney prepared following the mediation. And husband alleges wife was aware
of such items as the storage units and tools that he used in his business. “We defer to the
district court’s credibility determinations as to conflicting affidavits.” Knapp v. Knapp ,
883 N.W.2d 833, 837 (Minn. App. 2016).
Other aspects of the record lend further support to the district court’s implicit finding
that husband did not materially misrepresent or fail to disclose marital assets. The
agreement, signed by both parties, expressly acknowledges that the parties fully disclosed
their assets during the mediation. The agreement awards husband all real estate not
awarded to wife a nd all real and personal property in his possession except for a very
specific list of personal property items awarded to wife. Review of wife’s affidavit
demonstrates that almost all of the items she claims husband failed to disclose were
awarded to him as personal or real property. Indeed, husband disputed ownership of the
few items wife lists that were not awarded to him. On this record, giving due deference to
the district court’s credibility determinations, we discern no abuse of discretion by the
district court in denying wife’s motion to reopen the dissolution judgment based on fraud.

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III. The district court did not abuse its discretion by awarding conduct -based
attorney fees to husband.

A district court may award attorney fees, costs, and disbursements against a party
who unreasonably contributes to the length or expense of a dissolution proceeding. Minn.
Stat. § 518.14, subd. 1 (2016); Szarzynski v. Szarzynski, 732 N.W.2d 285, 295 (Minn. App.
2007) (“Conduct-based fee awards may be awarded against a party who unreasonably
contributes to the length or expense of the proceeding and are discretionary with the district
court.”). We will not disturb an award of attorney fees absent a clear abuse of discreti on.
Bogen v. Bogen, 261 N.W.2d 606, 611 (Minn. 1977).
Wife argues that the district court abused its discretion because the $772 4 award
does not include the findings required under Minn. R. Civ. P. 11 or Minn. Stat. § 549.21
(2016). This argument is misplaced. As noted above, the district court based the attorney-
fee award on Minn. Stat. § 518.14, subd. 1. Wife makes no argument regarding this statute
or the amount of the award. And our careful review of the record reveals no abuse of
discretion by the district court in its attorney-fee award.
Affirmed.

4 Wife incorrectly states the amount of the award as $500. Husband requested and the
district court ordered wife to pay $772 in attorney fees and costs related to the motion to
enforce the agreement.