In re the Matter of: David Allen Engh, petitioner, Respondent,

This opinion will be unpublished and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
A18-0795

In re the Matter of:
David Allen Engh, petitioner,
Respondent,

vs.

Jennifer Culver,
Appellant,

Ramsey County,
Intervenor.

Filed July 1, 2019
Affirmed
Slieter, Judge

Ramsey County District Court
File No. 62-FA-13-3062

Patricia J. Stotzheim, Stotzheim Law Office & Mediation, St. Paul, Minnesota (for
respondent)

Jennifer Culver, Minneapolis, Minnesota (pro se appellant)

Considered and decided by Connolly, Presiding Judge; Slieter, Judge; and Smith,
John P., Judge.

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

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U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant Jennifer Culver challenges the district court’s denial of her motion to
vacate default judgment resulting from her failure to appear on the third day of a custody
evidentiary hearing. We affirm.
FACTS
Appellant and respondent David Engh have one joint child, L.C. The parties were
never married. Initial custody and parenting time was established by a stipulated judgment
and decree (J&D) filed December 3, 2014. The J&D awarded appellant sole physical
custody of L.C. and joint legal custody of L.C. to the parties. The J&D also established
parenting time for respondent—respondent’s parenting time was to gradually increase until
the parties equally shared parenting time.
Respondent alleged that, following the entry of the J&D, appellant denied him
parenting time for some months. In 2015, respondent brought a motion to modify custody
based on endangerment and deprivation of parental rights.
The district court did not , at that time, rule on respondent’s motion for
modification—this appears to be due to, among other things, multiple order-for-protection
hearings and child-in-need-of-protective-services investigations involving these parties. In
August 2016, the state charged appellant with one count of deprivation of parental rights,
in violation of Minn. Stat. § 609.26, subd. 1(3) (2016). Due to appellant’s criminal charges,
respondent brought an emergency ex parte motion seeking sole legal and physical custody;

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the district court granted the motion and awarded respondent temporary sole le gal and
physical custody.
Following the district court’s grant of temporary sole legal and physical custody to
respondent, appellant filed a responsive motion to deny respondent’s motion . An
evidentiary hearing on custody and parenting time, among other issues, was set for May
2017. After a number of continuances and the recusal of a judge, the case was scheduled
for a hearing on October 16 and 17, 2017.
During the fi rst two days of the evidentiary hearing, respondent testified and was
cross-examined by appellant. At the end of the second day, a third day of testimony was
scheduled for November 7, 2017 at 8:30 a.m.
On November 6, 2017, appellant requested via email, a continuance of the
November 7 hearing. The district court denied the continuance and informed appellant by
email that if appellant did not appear for the hearing, the district court would proceed
without her.
On November 7, 2017, at about 8:15 a.m., appellant contacted the district court and
indicated that she was unable to appear because she had a flat tire. The district court
informed her that she had one hour to appear in court. Appellant subsequently called the
district court “multiple times” and claimed it was “physically impossible” for her to appear.
The district court informed her that she was expected to arrive at 9:30 a.m.
The hearing commenced at 9:36 a.m. Appellant failed to appear. The district court
then entered a default judgment ag ainst appellant that granted respondent sole legal and
physical custody of L.C. The district court found that appellant’s “request for continuance

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on the date of the hearing on November 7, 2017, was part of a pattern to delay the
proceedings and to interfere with the judicial process.”
Appellant filed a motion pursuant to Minn. R. Civ. P. 60.02 to vacate the default
judgment. The district court denied the motion.
This appeal follows.
D E C I S I O N
Appellant contends that the district court abused its discretion in denying her motion
to vacate the default judgment. Appellant moved to vacate under Minn. R. Civ. P.
60.02(a), (f). Rule 60.02 , however, does not apply to “a marriage dissolution decree.”
Generally, parties seeking relief from ru lings made under chapter 518, seek relief under
Minn. Stat. § 518.145, subd. 2 (2018). Although Minn. Stat. § 518.145, subd. 2, and rule
60.02 are similar, they are not identical. Rule 60.02 lists various grounds for relief,
concluding with clause (f), which allows relief for “[a]ny other reason justifying relief.”
While Minn. Stat. § 518.145, subd. 2 , lists grounds for relief that parallel most of the
reasons listed in rule 60.02, Minn. Stat. § 518.145, subd. 2 , lacks a provision paralleling
rule 60.02(f)’s “[a]ny other reason justifying relief.” Compare Minn. R. Civ. P. 60.02, with
Minn. Stat. § 518.145, subd. 2; see Harding v. Harding, 620 N.W.2d 920, 922 -23 (Minn.
App. 2001) (stating that Minn. Stat. § 518.145, subd. 2, “is virtually identical to rule 60.02
except that it does not contain a provision giving the court the open -ended power to grant
relief as justice requires”). The supreme court calls this difference between the statute and
the rule “significant[].” Shirk v. Shirk, 561 N.W.2d 519, 522 n.3 (Minn. 1997).

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For three reasons, appellant’s request for relief under Minn. R. Civ. P. 60.02(f)’s
other-reason-justifying-relief clause is not properly before this court. First, as noted above,
appellant should have sought relief under the statute rather than under the rule, and the
statute does not allow relief on this basis. Second, even if appellant could have sought
relief under the rule, her failure to make an argument actually addressing clause (f) means
clause (f) is not properly before this court. See State Dep’t of Labor & Indus. v. Wintz
Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to address an argument
absent adequate briefing). Third, caselaw under rule 60.02(f) shows that clause (f) is a
“residual clause, designed only to afford relief in those circumstances exclusive of the
specific areas addressed by clauses (a) through (e).” Chapman v. Special Sch. Dist. No. 1,
454 N.W.2d 921, 924 (Minn. 1990). Thus, because the argument that appellant did make
goes only to relief under clause (a), that argument cannot allow relief under clause (f).
Regarding appellant’s challenge to the district court’s denial of her request for relief
under rule 60.02(a), we note that because Minn. Stat. § 518.145, subd. 2, contains a parallel
provision, we can ignore the difference between the rule and the statute. See Knapp v.
Knapp, 883 N.W.2d 833, 836 (Minn. App. 2016) (noting, in a different context, that the
statute and the rule are functionally “identical”). Appellate courts “will not overturn a
ruling on a motion to vacate a default judgment unless the district court abused its
discretion.” Roehrdanz v. Brill , 682 N.W.2d 626, 631 (Minn. 2004). “A district court
abuses its discretion when it acts under a misapprehension of the law or when its factual
findings are clearly erroneous.” Gams v. Houghton, 884 N.W.2d 611, 620 (Minn. 2016)
(quotation and citation omitted).

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Under Minn. R. Civ. P. 60.02(a), a district court may vacate a final ruling for
“[m]istake, inadvertence, surprise, or excusable neglect” if the moving party shows (a) she
has a reasonable defense on the merits, (b) she has a reasonable excuse for not acting;
(c) she acted with due diligence after the district court made its ruling , and (d) no
substantial prejudice will result to the other party if relief is granted. Hinz v. Northland
Milk & Ice Cream Co. , 53 N.W.2d 454, 456 (Minn. 1952). While all four of the factors
must be satisfied, Gams, 884 N.W.2d at 619 -20, “[a] strong showing on the other factors
may offset relative weakness on one factor[,]” Imperial Premium Fin., Inc. v. GK Cab Co.,
603 N.W.2d 853, 857 (Minn. App. 2000). Generally, courts favor a liberal application of
this test to further the policy of resolving cases on their merits. Taylor v. Steinke , 203
N.W.2d 859, 860 (Minn. 1973).
Reasonable Defense on the Merits

Appellant argues the district court erred by concluding that she did not have a
reasonable defense on the merits. “A reasonable defense on the merits is one that, if
established, provides a defense to the plaintiff’s claim.” Northland Temps., Inc. v. Turpin,
744 N.W.2d 398, 403 (Minn. App. 2008), review denied (Minn. Apr. 29, 2008). Ordinarily,
the existence of a reasonable defense must “be demonstrated by more than conclusory
allegations in moving papers.” Charson v. Temple Israel , 419 N.W.2d 488, 491 (Minn.
1988).
Appellant first argues that she had a reasonable defense on the merits because the
best-interests factors support granting custody to her, seeming to base her argument on the
fact she was the child’s primary caretaker . Although the district court did not include a

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best-interests analysis pursuant to Minn. Stat. § 518.17, subd. 1 (2018), in its default order,
it did include a best -interests analysis in its order denying appellant’s rule 60.02 motion .
This order clarified tha t it considered the best -interests factors in its custody decision
granting respondent sole legal and physical custody of L.C. The district court’s thorough
best-interests analysis shows that it was deeply concerned about appellant’s mental health
and that appellant’s conduct, in general, was problematic and unsupportive of the child’s
relationship with respondent. The district court found that “[ appellant] has significant
mental-health issues to address before she can be a consistent, healthy support to her child.”
The district court did not abuse its discretion in concluding appellant failed to show a
reasonable defense on the merits.
Appellant alleges a number of procedural errors, appearing to argue that these give
her a reasonable defense on the merits. Specifically, appellant contends that: the district
court erroneously failed to make a prima facie finding of deprivation of parental rights or
endangerment to support respondent’s custody modification motion, the district court
erroneously shift ed the burden to appellant at the evidentiary hearing, the district court
erroneously reduced her parenting time to less than 25%, and the district court erroneously
failed to include a best-interests analysis in its default order.1

1 Appellant also argues that because her conviction for deprivation of parental rights was
vacated by this court, we should reverse the district court. See State v. Culver , No. A17-
1968, 2018 WL 6837735 (Minn. App. Dec. 31, 2018), review granted (Minn. Mar. 27,
2019). The district court issued its order denying appellant’s motion to vacate before this
court reversed her conviction. Because appellant’s conviction was in place at the time of
the evidentiary hearing and the motion to vacate, we do not address this argument.

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We discern no harmful error in any of the alleged procedural defects and “unless
the error is prejudicial, no grounds exist for reversal .” Kallio v. For d Motor Co. , 407
N.W.2d 92, 98 (Minn. 1987); see Minn. R. Civ. P. 61 (“The court at every stage of the
proceeding must disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.”). The district court noted that appellant’s conviction for
deprivation of parental rights was sufficient for a prima facie case for modification of
custody, included a best -interests analysis in its order denying appellant’s rule 60.02
motion, addressed its reasoning for reducing appellant’s parenting time, and did not
improperly shift the burden to appellant. Further, our review of the record and order
denying appellant’s rule 60.02 motion shows that remand to the district court would be
futile because, if we were to remand the matter, the district court would reach the same
result it has already reached . See Grein v. Grein , 364 N.W.2d 383, 387 (Minn. 1985)
(declining to remand and affirming the district court in a child -custody case when “from
reading the files, the record, and the court’s findings, on remand the [district] court would
undoubtedly make findings that comport with the statutory langua ge” and reach the same
result).
We have rejected appellant’s assertions that the district court erred in ruling that she
failed to show a reasonable defense on the merits. Therefore, we affirm the district court’s
denial of appellant’s motion to reopen. See Gams, 884 N.W.2d at 619 -20 (noting that, to
obtain relief, the moving party must show all four factors of the test), and we need not
address her arguments on the other factors of the test. In the interests of completeness,
however, we will briefly address those factors.

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Reasonable Excuse for the Failure or Neglect to Act
“[I]t is generally for the district court to determine whether a litigant’s excuse for
not having answered in time is a reasonable excuse.” Northland Temps., Inc., 744 N.W.2d
at 406. Neglect of the party itself leading to default judgment is inexcusable, and such
neglect is a proper ground for refusing to vacate a judgment. Thayer v. Am. Fin. Advisers,
Inc., 322 N.W.2d 599, 602 (Minn. 1982).
Appellant claimed that she could not attend the evidentiary hearing due to car
trouble. The district court did not find this explanation credible, noting “the only proof of
car trouble that was provided to the [c]ourt was a receipt, which was not addressed or listed
to [appellant], purporting to reflect repair of a tire that took place 45 minutes after the case
was called.” The court also found that “ [i]t is abundantly clear to this [c]ourt that
[appellant’s] continued resistance to appear is a ploy to delay the proceedings and interfere
with the judicial process and [respondent’s] ability to move on with his life.”
Appellate courts defer to a district court’s credibility determinations. Sefkow v.
Sefkow, 427 N.W.2d 203, 210 (Minn. 1988); Auer v. Scott, 494 N.W.2d 54, 58 (Minn. App.
1992). Therefore, we reject appellant’s challenge to the district court’s determination that
she lacked a reasonable excuse for not appearing.
Due Diligence after Notice of the Entry of Judgment
The district court found that appellant acted with due diligence following the entry
of default judgment and respondent does not contest this finding.

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No Substantial Prejudice to the Opposing Party
A party seeking relief under Minn. R. Civ. P. 60.02 must show “that no substantial
prejudice will result to the opponent.” Sand v. Sch. Serv. Emps . Union, Local 284 , 402
N.W.2d 183, 186 (Minn. App. 1987), review denied (Minn. Apr. 29, 1987) . “In general,
when the only prejudicial effect of vacating a judgment is add itional expense and delay,
substantial prejudice of the kind necessary to keep a judgment from being reopen ed does
not exist.” Black v. Rimmer, 700 N.W.2d 521, 528 (Minn. App. 2005) (quotation omitted),
review dismissed (Minn. Sept. 28, 2005). This court, however, has noted an exception to
this general rule: where the delays in the proceeding were purposeful and there was an
“intentional ignoring of process,” the “additional expense must be viewed in a different
light.” Id. (quotation omitted) “To force a claimant to go to the expense of a hearing in
court, to gather evidence and expert testimony and the concomitant preparation, all either
by inexcusable neglect or by intent, colors the prejudice with a deeper hue.” Id. (quotation
omitted).
Appellant argues that no substantial prejudice will result to respondent because he
would “simply be required to litigate the matter on the merits as was already scheduled.”
The district court found that “[ appellant] has gone above and beyond to delay the
proceedings in this matter.” The district court did not abuse its discretion in concluding
that vacating the default judgment would substantially prejudice respondent.
Overall, the district court found that appellant failed to show she had a reasonable
defense on the merits, failed to show that she had a reasonable excuse for her failure to act,
and failed to show that respondent would not be substantially prejudiced if relief was

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granted. Although weakness on one factor may be offset by a strong showing on the other
factors, all four of the factors must be satisfied. Gams, 884 N.W.2d at 619-20. Appellant
failed to show three of the four factors. We conclude that the district court did not abuse
its discretion by denying appellant’s motion to vacate default jud gment, and therefore,
affirm the district court.
Affirmed.