In re the Marriage of: Brenda Anne Kiberu-Kalema, n/k/a/ Brenda Anne Kiberu, petitioner, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1582

In re the Marriage of:
Brenda Anne Kiberu-Kalema, n/k/a/ Brenda Anne Kiberu, petitioner,
Respondent,

vs.

Kizito David Kalema,
Appellant.

Filed October 25, 2021
Affirmed
Bratvold, Judge

Hennepin County District Court
File No. 27-FA-19-8342

Leopold B. Épée, Épée Law Firm, LLC, Minneapolis, Minnesota (for respondent)

Allan J. Lanners, William K. Davies, Lanners & Olson, P.A., Plymouth, Minnesota
(for appellant)

Considered and decided by Larkin, Presiding Judge; Jesson, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD , Judge
In this appeal from an order denying appellant’s motion to vacate a default
dissolution decree, appellant argues the district court abused its discretion. Because the
record supports the district court’s determination that appellant had no reasonable defense
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on the merits nor a reasonable excuse for failing to respond to respondent’s petition, we
affirm.
FACTS
In July 1990, respondent Brenda Anne Kiberu (wife) and appellant Kizito David
Kalema (husband) married. On December 3, 2019, wife served husband with a summons
and petition for dissolution through a process server at the parties’ home in Bloomington.
It is undisputed wife served husband with the summons and petition and he failed to
respond. On December 18, 2019, wife filed the summons and petition in district court. The
petition stated wife did not know husband’s address.
The district court schedule d an initial case-management conference for January 8,
2020, and issued a notice of that conference. The notice indicated a copy was provided to
“Kizito David Kalema NO Known Address On File .” Husband did not attend the
case-management conference .
On January 31, 2020, wife moved for default judgment and submitted a proposed
judgment and decree. On February 4, 2020, the referee recommended approval of wife’s
proposed judgment and decree, which the district court signed and entered on the same
day.
Two d ays later , husband filed a notice -of-change-of-address form. Husband’s
attorney filed a certificate of representation on February 28, and, shortly after, obtained a
June hearing date for a motion. On June 5, husband moved to vacate the judgme nt and
decree and sought leave to file an answer and counter petition, among other relief.
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The parties submitted briefs and affidavits to the referee, who conducted a telephone
hearing on June 30. Husband’s affidavit, in relevant part, attested he did not receive notice
of the case -management conference, and when he visited the Hennepin County Family
Justice Center “to obtain documentation, forms and assistance” from the self-help desk, he
learned wife “had already obtained a default divorce j udgment against [him] without [his]
knowledge!” Husband argued in his memorandum that wife “engaged in fraud,
misrepresentation and other misconduct which prevented [husband] from fully and fairly
representing himself in the proceeding[ s,]” and he had a reasonable excuse for neglecting
to answer because he received no notice of the case conference . Wife argued husband
“cannot establish excusable neglect f or not answering the Petition because of his own
inaction,” and he “failed to meet his burden of proving fraud .”
On September 28, 2020, the district court adopted the referee’s findings of fact and
order denying husband’s motion. The district court first found wife served husband with
the summons and complaint and husband did not file or serve any pleadings and did not
contact the court. The district court next rejected husband’s fraud claim, determining he
failed to show that wife “committed fraud during the pendency of these proceedings. ”
Turning to husband’s claim that the judgment should be vacated for excusable neglect, the
district court determined husband “acted with due diligence after notice of entry of
judgment” and wife would not be substantially prejudice d if husband was relieved of the
default judgment. But the district court also determined husband did not have a reasonable
defense on the merits, nor a reasonable excuse for failing to respond to wife’s petition and
summons. Thus, the district court denied husband’s motion.
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Husband appealed, and this court stayed the appeal for mediation. When none of the
issues were resolved through mediation, this court dissolved the stay.
DECISION
Husband argues the district court abused its discretion by denying his motion to
vacate the judgment. Husband also argues this court “must reaffirm the longstanding
principle that cases should be heard on the merits, and not decided on a procedural
technicality, especially during a pandemic. ”1 Wife argues applicable law and the record
support the district court’s decision to deny husband’s motion.
Minnesota caselaw stat es, “[r]eopening of default judgments is to be liberally
undertaken so that disputes can be resolved on their merits.” Galatovich v. Watson ,
412 N.W.2d 758, 760 (Minn. App. 1987) ; see also Sommers v. Thomas , 88 N.W.2d 191,
196 (Minn. 1958) (“It must be remembered that the goal of all litigation is to bring about
judgments after trials on the merits and for this reason courts should be liberal in opening
default judgments.”). While this caselaw reflects a bedrock principle, “[t]he legislature also
has recognized the importance of finality in dissolution proceedings by setting forth

1 Husband briefly argues his request for relief should be granted because of the COVID -19
pandemic. We are not persuaded. W hile the pandemic was a concern between December
2019 and February 2020—when wife served the summons and petition, and she obtained
a default judgment —the emergency executive order in which the governor declared a
peacetime emergency , and the subsequent judicial -branch orders postponing
litigation-related deadlines were not issued until March 2020. See Emerg. Exec. Order
No. 20-01 (Mar. 13, 2020); Continuing Operations of the Courts of the State of Minnesota
Under a Statewide Peacetime Declaration of Emergency , No. ADM20- 8001 (Minn.
Mar. 20, 2020). Husband contends the court first scheduled his motion to vacate in April
2020 but postponed to June because of the pandemic. This delay did not prejudice husband
because the district court found he acted diligently after he received notice of entry of
judgment.
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specific circumstances that must be present to permit a party to be relieved of the terms of
a judgment and decree” along with time limitations for pursuing relief. Shirk v. Shirk ,
561 N.W.2d 519, 522 (Minn. 1997) (citing Minn. Stat. § 518.145, subd. 2 (2020)). A
district court’s “decision not to reopen the judgment and decree will not be disturbed absent
an abuse of discretion.” Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996) . A
district court abuses its discretion by making findings of fact that ar e unsupported by the
evidence, misapplying the law, or rendering a decision that is “against logic and the facts
on record.” Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997) .
Before we review husband’s arguments, we begin by summarizing when a default
judgment is appropriate in a dissolution proceeding and then examine the grounds for
moving to vacate or reopen a dissolution judgment. In dissolution proceedings, “[i]f the
respondent does not appear after service duly made and proved, the court may hear an d
determine the proceeding as a default matter. ” Minn. Stat. § 518.13, subd. 1 (2020). When
a party has made no appearance or response to a dissolution petition, the petitioner may
request a final default hearing or seek final approval without a hearing by filing the
appropriate affidavits. Minn. R. Gen. P rac. 306.01. 2 The advisory-committee comment to
rule 306.01 explains, “[a] party is not entitled to prevent entry of judgment if that party is

2 In denying father’s motion, the district court determined a hearing was not required
because the marriage did not include minor children and at least 50 days had passed since
husband was served with the petition. See Minn. Stat. § 518.13, subd. 5 (2020) (“[I]f there
are no minor children of the marriage, and . . . the respondent has not appeared after service
duly made and proved by affidavit and at least 20 days have elapsed since the time for
answering under section 518.12 expired” the district court may approve of a proposed
judgment without a final hearing). Husband does not challenge this aspect of the district
court’s decision.
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in default by not serving and filing a timely written answer to the Petition.” Minn. R. Gen.
Prac. 306, 2012 advisory comm. cmt.
“A decree of dissolution of marriage or of legal separatio n is final when entered ,
subject to the right of appeal.” Minn. Stat. § 518.145, subd. 1 (2020). “The sole relief from
the judgment and decree lies in meeting the requirements of Minn. Stat. § 518.145,
subd. 2.” Shirk, 561 N.W.2d at 522. Minn. Stat. § 518.145, subd. 2, allows the district court
to “relieve a party from a judgment and decree . . . as may be just” for any of five reasons,
one of which is “mistake, inadvertence, surprise, or excusable neglect .” Id., subd. 2(1).
Fraud “or other misconduct of an adverse party” is also a basis to reopen or vacate a
dissolution judgment. Id., subd. 2(3). A party seeking to overturn or reopen a judgment has
the burden to prove at least one of the statutory grounds. Haefele v. Haefele, 621 N.W.2d
758, 765 (Minn. App. 2001), rev. denied (Minn. Feb. 21, 2001).
Husband’s brief to this court focuses on excusable neglect and no longer argues wife
committed fraud when obtaining the default judgment . Caselaw discussing excusable
neglect under rule 60.02 has consistently applied four factors: whether the moving party
has (1) “a reasonable defense on the merits”; (2) “a reasonable excuse for his failure or
neglect to answer”; (3) acted diligently after notice of entry of the judgment; and
(4) demonstrated “that no substantial prejudice will result to the other party.” 3 Hinz v.

3 “Because of the similarities between [Minnesota] rule [of civil procedure] 60.02 and
[Minn. Stat. § 518.145,] subdivision 2, cases citing to rule 60.02 are often used when
addressing the application of the statute.” Harding v. Harding, 620 N.W.2d 920, 923
(Minn. App. 2001), rev. denied (Minn. Apr. 17, 2001) ; see also Knapp v. Knapp,
883 N.W.2d 833, 837 (Minn. App. 2016) (“We conclude that a district court does not abuse

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Northland Milk & Ice Cream Co., 53 N.W.2d 454, 456 (Minn. 1952); see also Northland
Temps., Inc. v. Turpin, 744 N.W.2d 398, 402 (Minn. App. 2008), rev. denied (Minn.
Apr. 29, 2008). All four factors “must be proven” to establish excusable neglect, “but a
weak showing on one factor may be offset by a strong showing on the others.” Reid v.
Strodtman, 631 N.W.2d 414, 419 (Minn. App. 2001).
Husband challenges the district court ’s analysis of the first and second factors and
argues the district court erred when it determined he had neither a reasonable defense on
the merits nor a reasonable excuse for his failure to answer the petition. 4 We address
husband’s arguments in turn.
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.” Turpin, 744 N.W.2d at 403. During district court proceedings,
husband argued he had a reasonable challenge to the division of marital property. A district
court determin es a “just and equitable division of the m arital property . . . after making
findings regarding the division of the property.” Minn. Stat. § 518.58, subd. 1 (2020). “A
trial court has broad discretion in evaluating and dividing property in a marital dissolution

its discretion by not addressing rule 60.02 when considering a motion to vacate a
dissolution judgment under Minn. Stat. § 518.145, subd. 2.”).

4 Wife argues the district court was “mistaken” she would not suffer substantial prejudic e
if the judgment was vacated. This court need not address wife’s alternative argument for
affirmance of the district court’s decision because we affirm for other reasons.
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and will not be overturned except for abuse of discretion.” Antone v. Antone, 645 N.W.2d
96, 100 (Minn. 2002).
The district court determined husband did not have a reasonable defense on the
merits to the property division because “the decree [is] fair and equitable.” The district
court found husband failed to “provide verification of [claimed] assets and liabilities” to
support his claim that the dissolution judgment did not include all the parties’ marital
property.
Husband contends the district court’s “finding defies all credulity” because he is
entitled to a “greater” property award than he received i n the dissolution judgment.
Husband generally argues the property division is not fair and equitable because it awards
wife “over $500,000 and awards [husband] less than $130,000.” Wife disputes this
characterization of the property division. Husband cites no caselaw in support of his
general argument. Some caselaw militates against husband’s position: “[W]hile the district
court must make a just and equitable division of the marital property, an equitable division
of marital property is not necessarily an equal division.” Sirek v. Sirek , 693 N.W.2d 896,
900 (Minn. App. 2005) (quotation omitted). Thus, we are not persuaded that husband’s
general argument has stated a reasonable defense on the merits.
Next, husband argues the dissolution judgment does not a ddress some marital
property and points to his affidavit identifying assets, payments, and debts not mentioned
in the judgment. Wife responds that husband’s “statements are conclusory.” Wife is correct
that a reasonable defense on the merits must be suppor ted by “mo re than conclusory
statements.” In re Welfare of Children of Coats , 633 N.W.2d 505, 511 (Minn. 2001).
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The district court determined husband failed to verify his claims of omitted marital
property, and our review of the record confirms that husband offered no evidence to support
most of his claims of omitted marital property . For example, his brief to this court argues
wife “has an entirely separate, additional employee benefit plan that was not allocate d in
the Decree.” But husband submitted no evidence to support his claim about this benefit
plan. Similarly, husband’s affidavit attested he paid utility bills for the marital home, but
the district court found he “provided no proof” of such payments. On appeal, a party cannot
complain that the district court did not rule in his favor when he did not provide the district
court with the evidence necessary to address the question. Eisenschenk v. Eisenschenk ,
668 N.W.2d 235, 243 (Minn. App. 2003), rev. denied (Minn. Nov. 25, 2003). Thus, we
agree with wife that most of husband’s purported defenses on the merits are conclusory
statements without record evidence.
We note, however, that husband include d with his affidavit a February 2020
statement showing a $27,000 balance owed on a home-equity line of credit for the marital
home. The district court did not address this debt in its dissolution judgment. This omission
does not end our inquiry because we must disregard harmless errors. See Minn. R. Civ.
P. 61. Husband fails to argue or show any prejudice from the omission of this debt from
the dissolution judgment , and no prejudice is apparent . The dissolution judgment ordered
the sale of the homestead and that “net proceeds of the sale be split equally between the
parties.” The dissolution judgment included findings that the homestead’s current market
value is $254,000 with $90,000 sti ll owed on the first mortgage. The record before us
suggests a market-value sale of the homestead will satisfy the balance owed on the line of
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credit as well as on the first mortgage . Thus, even if we assume the district court erred by
omitting the balance owed on the line of credit, husband does not have a reasonable defense
on the merits because any error was harmless.
Finally, husband argues that “perhaps more importantly” he had no discovery and
“[t]he [district] court had no outside assurance nor any meaningful ability to adjudge
whether or not there had been a full di sclosure of assets, and in fact [husband] alleged in
his proposed Answer and Counterpetition that there was not full disclosure.” He contends
generally “that the [district] court was not, and logically could not have been in a position”
to conclude the def ault judgment was fair and equitable.
Husband cites no caselaw in support of this claim. We generally decline to consider
issues advanced on appeal with no legal authority. See, e.g., State, Dep’t of Labor & Indus.
v. Wintz Parcel Drivers, Inc. , 558 N.W.2d 480, 480 (Minn. 1997) (declining to reach an
issue “in the absence of adequate briefing”). We decline to do so here, particularly because
husband also fails to identify what discovery he would have sought, what it would have
revealed, or how the lack of discovery prejudiced him. See generally Chicago
Greatwestern Off. Condo. Ass’n v. Brooks , 427 N.W.2d 728, 732 (Minn. App. 1988)
(stating that to overturn a default judgment imposed for failure to comply with a discovery
order, the district court must evaluate “the needs” of the party seeking discovery along with
“how the absence of such evidence not produced would impair the other party’ s ability to
establish their case” (quoting Wilson v. Volkswagen of Am ., Inc., 561 F.2d 494, 505
(4th Cir. 1977), cert. denied, 434 U.S. 1020 (1978))).
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For these reasons, we conclude the district court did not abuse its discretion when it
determined husband did not have a reasonable defense on the merits.
B. Reasonable excuse for failing to answer

Husband argues the district court erred when it determined he had no reasonable
excuse for failing to answer, citing four reasons. First, husband points out he “is originally
from Uganda and presumably has no inherent or learned knowledge of the operation of the
court system in this country.” But as the district court noted , “ [a]lthough some
accommodations may be made for pro se litigants, this court has repeatedly emphasized
that pro se litigants are generally held to the same standards as attorneys and must comply
with court rules.” Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001).
Minnesota law states a spouse’s obligation to respond to a summons and petition
for dissolution. “The respondent shall have 30 days in which to answ er the [dissolution]
petition.” Minn. Stat. § 518.12 (2020) . Husband received notice of his obligation to
respond, as well as notice of the consequences if he failed to respond, when he was served
with the summons and petition. T he first page of the summons repeated the statutory
requirement to answer within 30 days . The first page of the summons also stated:
“WARNING: . . . This summons is an official document from the court that affects
your rights. Read this summons carefully. If you do not understand it, contact an
attorney for legal advice.” And the summons warned of the consequences if husband
failed to answer: “If you do not serve and file your Answer, the Court may give your spouse
everything he or she is asking for in the Petition for Dissolution of M arriage.” While
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husband may not have legal experience, the summons conveyed the important fact that he
needed to respond to the petition.
Second, husband argues he did not receive any notices of the dissolution action
besides the summons and petition. Even if we assume this is true, Minnesota law does not
require notice “after service [of a petition] is duly made and proved” before a motion for
default judgment is heard , unless the respondent has appeared by pleading or in person.
Minn. Stat. § 518.13, subd . 1; Minn. R. Gen. Prac. 306.01(b) (providing a notice of a
default motion is required when respondent “ has appeared by a pleading other than an
answer, or personally without a pleading”). Here, husband concedes he was properly served
with the summons and petition, yet he did not appear or file any document with the district
court until after entry of the default judgment . Thus, the lack of notice to husband is not a
reasonable excuse under these circumstances.
Along with his argument about lack of notice, husband criticizes wife for claiming
“she did not know where [husband] resided.” We understand husband to be challenging
wife’s statement in the dissolution petition that he had no known address. In briefs
submitted to the district court and to this court, the parties dispute whether husband resided
at the marital home when he was served with the summons and petition and in the months
following service. 5 Where husband lived , however, does not affect our analysis because

5 Husband argues wife “knew where [he] was at all time[s],” he slept in a van on the marital
homestead, and he visited the marital home during the day while wife was at work. Wife
asserts husband “moved out of the parties[’] homestead” in February 2018, and she “did
not know where [husband] went to live.” The district court found wife’s a ffidavi t
“describes a more believable narrative of the events,” and we generally defer to the district

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husband had to notify the di strict court of his current address. Husband ignores that he
failed to notify the district court of his address until after it entered the default judgment.
When husband finally filed a change -of-address form, he listed the same address at which
he was served: the parties’ marital home.
Third, husband argues “[t]here was no designation on the documents that [husband]
received that indicate that they had ever been filed with the court, and no court file
number.” This is partially correct. Wife served husband with the summons and petition on
December 3, 2019. The first full sentence o f the summons reads : “WARNING: Your
spouse has filed a lawsuit against you for dissolution of your marriage.” (Italics added.)
The first numbered paragraph in the summons repeats that petitioner has filed the lawsuit.
But wife did not actually file the petition until December 18, 2019, two weeks after service.
Thus, husband receive d notice that wife filed the dissolution petition before she actually
filed it. Husband does not explain why these circumstances provided a reasonable excuse
for failing to answer wife’s petition and we discern no reasonable excuse based on these
circumstances.
Fourth, husband argues “it would be unprecedented for the court to hold that service
of a Summons and Petition alone, with no subsequent opportunity to be heard, and in the
face of not only a timely, but immediate motion to vacate, precludes” granting a motion to
vacate a default judgment “without any meaningful review or determination of the merits
of the case.” We disagree. While, as discussed above, courts prefer to resolve legal disputes

court’s findings on credibility. See Knapp, 883 N.W.2d at 837 (noting a ppellate courts
“defer to the district court's credibility determinations as to conflicting affidavits”).
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on the merits, a party may move the district court to enter a defa ult dissolution judgment
with the caveat that a party may also move to reopen or vacate a dissolution judgment . See
Minn. Stat. §§ 518.13, subd. 1, .145, subd. 2.
In Knapp, for example, this court affirmed the denial of a motion to vacate a default
dissolution judgment. 883 N.W.2d at 834. There, the respondent -wife served the
appellant-husband with a petition and summons, notifying the husband he had 30 days to
answer the petition. Id. The husband never answered the petition, the district court entered
a dissolution judgment by default, and the district court denied husband’s motion to vacate
the default judgment. Id.
Husband argues “this case is distinguishable from Knapp” because there “the
Respondent was served and/or notified of the Court’s involvement on five occasions.”
While this describes the procedural history in Knapp, our decision to affirm did not rest on
the notices the husband received. Rather, we concluded “the record amply supports the
district court’s findings and its conclusions that [the husband] failed to meet his burden to
prove excusable neglect under Minn. Stat. § 518.145, subd. 2(1).” Id. at 838. Here, we also
conclude the record supports the district court’s determination that husband failed to prove
excusable neglect.
On this record, we discern no abuse of discretion in the district court’s decision to
deny husband’s motion to vacate the default dissolution judgment.
Affirmed.