In re the Marriage of: Nyawan Kuon Dak, 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This opinion is nonprecedential except as provided by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
A21-0900

In re the Marriage of: Nyawan Kuon Dak, petitioner,
Respondent,

vs.

Khan Deng Turuok,
Appellant.

Filed May 2, 2022
Affirmed
Klaphake, Judge*

LeSueur County District Court
File No. 40-FA-15-958

Michael P. Herrmann, Janna M. Borgheiin ck, Wornson, Goggins, PC, New Prague,
Minnesota (for respondent)

Michelle K. Olsen, Jacob M. Birkholz, Birkholz & Associates, LLC, Mankato, Minnesota
(for appellant)

Considered and decided by Slieter, Presid ing Judge; Bratvold, Judge; and Klaphake,
Judge.
NONPRECEDENTIAL OPINION
KLAPHAKE, Judge
In this appeal from the district court’s denial of his motion requesting that the district
court force the sale of proper ty, enforce the judgment, and provide other relief, appellant

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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argues that the district court erred by refusing to (1) correct a clerical error under Minn. R.
Civ. P. 60.01, (2) reform the order, and (3) clarify the order. We affirm.
DECISION
Appellant Khan Deng Turuok and respondent Nyawan Kuon Dak divorced in April
2016 pursuant to a stipulated dissolution judgment. After numerous court proceedings, the
parties agreed that Dak would keep the marital home subject to a lien in favor of Turuok.
The amended judgment in this matter, based on a stipulated agreement which the parties
reached in September 2017, provides that Dak will satisfy Turuok’s lien against the marital
home “at the time of closing on the sale of the homestead, or at any time prior to closing.”
The order also states that Turuok’s name must be removed from the mortgage by December
31, 2017. And if Dak fails to remove Turuok’s name, she must “put the home for sale after
30 days.” Dak removed Turuok’s name from the mortgage before December 31, 2017.
Dak’s counsel sent Turuok’s counsel a letter from the mortgage company confirming the
removal of Turuok’s name and noting that it is the removed pers on’s responsibility to
record the letter. There is no evidence that Turuok recorded the letter. But neither party
disputes that Dak was able to remove Turu ok’s name. Two and one-half years later,
Turuok moved the district court to, among othe r things, require Dak to remove his name
from the mortgage or sell or refinance the home. Based on the amended judgment, the
district court denied Turuok’s motion.
Turuok first argues that the amended judgment reflects a clerical error correctible at
any time under Minn. R. Civ. P. 60.01 because the parties in tended to require that Dak
either refinance or sell the home in order to remove Turuok’s name. We are not persuaded.
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Rule 60.01 provides that “[c]lerical mi stakes in judgments . . . arising from
oversight or omission may be co rrected by the court at any time.” The district court has
broad discretion in determinin g whether to vacate or modify a stipulated judgment for
clerical error under rule 60.01. Gould v. Johnson , 379 N.W.2d 643, 646 (Minn. App.
1986). But lest they become a disguise for attacks on the judgment, clerical errors must be
distinguished from more substantial mistakes under Minn. R. Civ. P. 60.02. Egge v. Egge,
361 N.W.2d 485, 488 (Minn. App. 1985). Clerical errors must ordinarily be “apparent on
the face of the record ” and not attributable to an exercise of discretion. Wilson v. City of
Fergus Falls, 232 N.W.2d 322, 323 (Minn. 1930). Parties may use rule 60.01 to “make
the judgment . . . speak the truth” but not to make it say something other than what it
originally stated. Egge, 361 N.W.2d at 488 (quotation omitted).
In Egge, we determined that an alleged error in a stipulated decree was not clerical.
Id. We reasoned that the partie s’ intent was not clear from the record and no “objective
reference” existed against which to test the accuracy of the decree. Id.; see also Solberg v.
Solberg, 382 N.W.2d 859, 861 (Minn. App. 1986) (stating that when parties’ intent was
not clear, any error was more than clerical).
Here, any error is more than clerical. The parties’ intent is not clear from the record.
The record reflects that, at a hearing in May 2017, the parties contemplated Dak refinancing
the home. But the operative order did not requ ire Dak to refinance the home. Instead, it
stated only that Turuok’s name must be removed by December 31, 2017. And the record
shows that the parties’ atto rneys engaged in some negotia tion regarding the terminology
used in the operative order. But the record contains no information resolving or explaining
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the apparent discrepancy between the May 2017 hearing and the written agreement that the
parties memorialized in the operative order. As in Egge and Solberg, the parties’ intent is
not clear and any error in drafting the order is not clerical.
Turuok asserts that this case is like Johnson v. Johnson , 379 N.W.2d 215 (Minn.
App. 1985). There, the husb and’s attorney erroneously drafted a spousal-maintenance
provision to terminate when husband died or remarried, but th e record clearly indicated
that the parties contemplated spous al maintenance continuing until the wife died or
remarried. Id. at 217-18. The error was a matter of substituting a single word for another.
See id. at 218. We held that the district court, applying rule 60.01, properly modified the
provision to terminate when wife died or remarried. Id. Here, in contrast, the record is
unclear as to the parties’ intent, and correc ting the alleged error would require more than
mere word substitution. Thus, Johnson is distinguishable and not persuasive here. In sum,
we conclude that any error in the order is not clerical error correctible under rule 60.01.
Turuok next argues that the district court e rred by refusing to reform or clarify the
order. We reject these arguments for two r easons. First, Minnesota Statutes section
518.145, subdivision 2 (2020), allows a district court to relieve a party from a judgment or
order because of mistake, inadvertence, fraud, or other reasons within one year of the entry
of the order. Here, Turuok sought relief more than two and one-half years after the district
court entered the order. His request for relief is therefore untimely.
Second, even if his request for relief coul d be considered timely, Minnesota law is
clear that “a [district] court may not mo dify a final property division” except to
“implement, enforce, or clarify the provisions of the decree, so long as it does not change
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the parties’ substantive rights.” Nelson v. Nelson, 806 N.W.2d 870, 871 (Minn. App. 1999)
(quotation omitted). An order changes substantive rights when it increases or decreases
the original division of marital property. Hanson v. Hanson, 379 N.W.2d 230, 233 (Minn.
App. 1985). Here, to require Dak to sell th e house and pay four percent interest on
Turuok’s lien, as Turuok requests, would decrease Dak’s share of the property by depriving
her of the home and forcing her to pay more than the agreed upon amended judgment lien
amount. Similarly, such an arrangement would increase Turuok’s share of the property by
granting him more money than in the original agreement. And requiring Dak to refinance
the home, as Turuok alternatively requests, changes her substantive rights by asking her to
do something which the order does not require. Because granting Turuok’s requested relief
would impermissibly alter the final property di vision and the parties’ substantive rights,
we reject Turuok’s arguments that the district court erred by failing to reform or clarify the
order.
Affirmed.