In re the Marriage of: Rachel Ann Wexler, f/k/a Rachel Gerr, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0679

In re the Marriage of:
Rachel Ann Wexler, f/k/a Rachel Gerr, petitioner,
Appellant,

vs.

Darrin Anthony Gerr,
Respondent,

County of Dakota, intervenor,
Respondent.

Filed February 4, 2019
Affirmed
Ross, Judge

Dakota County District Court
File No. 19-F1-02-013034

Thomas W. Wexler, Edina, Minnesota (for appellant)

Merlyn L. Meinerts, Meinerts Law Office, P.A., Burnsville, Minnesota (for respondent
Gerr)

James C. Backstrom, Dakota County Attorney, Tina K. Isaac, Assistant County Attorney,
West St. Paul, Minnesota (for respondent county)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Smith,
Tracy M., Judge.
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U N P U B L I S H E D O P I N I O N
ROSS, Judge
Rachel Wexler moved the district court to retroactively modify the child support she
was collecting from her former husband, Darrin Gerr, after learning that Gerr had failed to
provide the court with accurate income i nformation about funds he received from his
former employer. The district court partially granted and partially denied Wexler’s motion.
She appeals, arguing that the district court misapplied the doctrine of fraud on the court by
assigning to her the burden to prove Gerr’s actual income in support of her fraud claim.
Because the district court properly assigned the burden, we affirm.
FACTS
Rachel Wexler and Darrin Gerr divorced in 2002. This appeal arises in the aftermath
of two motions for modification of child support—one in 2010 and the other in 2011. In
2010, Gerr moved to decrease his child-support obligation because he was no longer
employed and unable to find work. The district court granted his motion. In 2011, Wexler
moved to modify child support, arguing that Gerr had been dishonest about his employment
and income. The district court found that Gerr was voluntarily unemployed and that he
could earn $3,000 a month. The district court granted Wexler’s motion, increasing Gerr’s
child-support obligation.
In 2014, Wexler again moved to modify child support, arguing that Gerr had
committed fraud on the court during both the 2010 and 2011 child-support modification
proceedings. She alleged that, before Gerr filed his 2010 motion, he began working at Good
Look Ink Inc., but not as a volunteer as he had represented; he was given so-called loans
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“off the books.” The total Gerr received was $150,000, and when he and Good Look Ink
separated, the company forgave the loans. Wexler argued that the money Gerr received
from Good Look Ink constituted undisclosed income and that, by concealing it from the
court, Gerr had committed fraud on the court.
The district court found that the “loan” to Gerr was essentially income and that, by
failing to disclose the arrangement during the 2010 and 2011 modification proceedings,
Gerr had misled Wexler and the court. The district court found that Gerr’s monthly income
was underestimated by $1,867 in the 2010 modification, resulting in an unfair child-support
obligation. But the district court found that Gerr’s income was not so severely
underestimated as to constitute a gross unfairness in obligation resulting from the 2011
modification order.
Wexler appeals.
D E C I S I O N
Wexler argues that the district court erred by denying her motion to retroactive ly
modify the 2011 child-support obligation. Generally a party cannot move to reopen a
family-court decision more than a year after it has been entered. Minn. Stat. § 518.145,
subd. 2 (2018). But a party can move to reopen the decision if there has been fraud on the
court. Id.; Maranda v. Maranda, 449 N.W.2d 158, 164 (Minn. 1989). Wexler argues that
Gerr committed fraud on the court by failing to disclose income. A party commits fraud on
the court when he materially misrepresents or fails to disclose information, misleading the
court and opposing counsel and causing a grossly unfair child-support determination. See
Maranda, 449 N.W.2d at 165 (defining fraud on the court in a marriage dissolution);
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Sanborn v. Sanborn, 503 N.W.2d 499, 502 (Minn. App. 1993) (applying the Maranda
standard to a child-support determination), review denied (Minn. Sept. 21, 1993). The
primary issue on appeal is whether the district court properly applied the third factor—
gross unfairness.
Wexler argues that the district court erred in its gross-unfairness assessment by
shouldering her with the burden to prove that Gerr had committed fraud. The argument
fails. The moving party bears the burden of establishing fraud on the court. Thompson v.
Thompson, 739 N.W.2d 424, 428 (Minn. App . 2007). Wexler was the moving party. The
district court therefore did not err by placing the burden of proof on her.
Wexler challenges this result by emphasizing that child-support cases differ from
other fraud-on-the-court cases in that parties in child-support actions are statutorily
obligated to provide accurate information about their income s. It is true that the statutory
child-support-modification process requires parties to make income disclosures. Minn.
Stat. § 518A.28(a) (2018). But nothing in that scheme purports to move the burden away
from the moving party who alleges fraud on the court. Parties in child-support proceedings,
like parties in other court proceedings, must be truthful in their factual representations to
the court. But the burden falls to the accuser alleging a breach of that duty.
The district court did not abuse its discretion by failing to find that Gerr had
committed fraud on the court as it concerns the 2011 child-support modification. A district
court does not abuse its discretion if the record contains evidence to support its decision.
Thompson, 739 N.W.2d at 428. Wexler attempted to show that Gerr had additional income
by submitting bank statements attributable to both Gerr and entiti es associated with him ,
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including Good Look Ink. She also highlighted Gerr’s cars, his townhome, and his
gambling habit as evidence of additional hidden income. But she acknowledged that she
lacked evidence of any additional loans to Gerr and that he did not appear to withdraw any
funds from Good Look Ink’s bank account. This acknowledgment, as well as testimony
from Gerr credited by the district court regarding his gambling habits, supports the court’s
decision not to impute any income to Gerr in addition to the $150,000 “loan.” And although
there was a discrepancy between what Gerr would likely have been obligated to pay and
what he actually was obligated to pay in the 2011 order, the district court concluded that
the discrepancy was not so unfair a difference as to require vacating the order given the
timing of the request, the economic parity of the parties, and the costs incurred by all. The
district court supported its conclusion with reason and evidence in the record. Given the
discretion afforded to the district court in this fairness determination, we will not disturb
its decision.
Wexler argues in the alternative that the district court erred by not using its equitable
discretion to cure the harm caused by Gerr’s failure to report his income accurately. But
the district court did not find the resulting discrepancy to be sufficiently unfair to revisit
the 2011 decision, and so we have no reason to suspect that it would have reached any
different conclusion assessing f airness under a different label. We cannot say that the
district court abused its discretion.
Affirmed.