In re the Marriage of: Rebecca Ellen Bender, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A22-1783

In re the Marriage of: Rebecca Ellen Bender, petitioner,
Appellant,

vs.

Peter Howard Bernhard,
Respondent.

Filed August 7, 2023
Affirmed; motion denied
Johnson, Judge

Hennepin County District Court
File No. 27-FA-000281147

Rebecca E. Bender, Minnetonka, Minnesota (pro se appellant)

Peter H. Bernhard, Philadelphia, Pennsylvania (pro se respondent)

Considered and decided by Gaïtas, Presiding Judge; Johnson, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
This appeal is concerned with whether the father of a young adult should continue
to pay child support on the ground that the young adult is incapable of self-support. In
2019, the young adult’s mother moved to extend the father’s obligation to pay child
support, but the district court denied the motion. In 2020, the young adult’s mother moved
to reopen the earlier motion based on newly discovered evidence. The district court denied
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the motion to reopen and, after an appeal and a remand, denied the motion to reopen a
second time. We conclude that the district court did not err by denying the motion to
reopen on the ground that the newly discovered evidence i s not likely to change the
outcome of the motion to extend child support. Therefore, we affirm.
FACTS
Almost all of the facts and procedural history relevant to this appeal are described
in detail in three prior appellate opinions concerning the parties’ dispute over child support.
See Bender v. Bernhard, No. A19-1611, 2020 WL 3409243 (Minn. App. June 22, 2020)
(Bender I); Bender v. Bernhard, No. A20-1234, 2021 WL 1525239 (Minn. App. Apr. 14,
2021) (order opinion) (Bender II) (subsequent history omitted); Bender v. Bernhard, 971
N.W.2d 257 (Minn. 2022) (Bender III). Those facts need not be repeated here.
On remand following the supreme court’s opinion in Bender III, the district court
allowed the parties to submit memoranda of law and to present oral argument at a motion
hearing. In November 2022, the district court filed a ten-page order denying Bender’s
motion to reopen her motion to extend child support.
Bender filed a notice of appeal and an appellate brief. Bernhard has not filed a
responsive brief. Nonetheless, this court must resolve the appeal on the merits. See Minn.
R. Civ. App. P. 142.03.

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DECISION
Bender argues that the district court erred by denying her motion to reopen her
motion to extend child support.1
A.
We begin by reviewing the applicable legal principles.
A child-support obligation “terminates automatically . . . upon the emancipation of
the child as provided under section 518A.26, subdivision 5.” Minn. Stat. § 518A.39,
subd. 5(a) (2022). The cross-referenced statute is a definitional statute, which provides
that the term “child” means either “[1] an individual under 18 years of age, [2] an individual
under age 20 who is still attending secondary school, or [3] an individual who, by reason
of physical or mental condition, is incapable of self-support.” Minn. Stat. § 518A.26,
subd. 5 (2022). These two statutes, when read together, “imply that an individual incapable
of self-support continues to be an unemancipated child for support . . . purposes.” Maki v.
Hansen, 694 N.W.2d 78, 83 (Minn. App. 2005). A child-support obligation may be

1After filing her appellate brief, Bender filed a “motion to protect parties’ child’s
identity.” She requests that this court, in its opinion, refrain from using the full name or
the initials of the young adult at issue and instead refer to him as “the parties’ child” or “a
similar phrase.” We prefer to avoid the use of the word “child” in our routine references
because, as explained below, the ultimate issue is whether the young adult is a “child,” as
that word is used in the child-support statutes. The prior opinions have referred to the
young adult using male pronouns. See Bender I, 2020 WL 3409243; Bender II, 2021 WL
1525239; Bender III, 971 N.W.2d 257. Accordingly, we will refer to him in this opinion
as “the parties’ son,” thereby avoiding identifying information and avoiding any
endorsement of Bender ’s position on the merits. In light of that means of identification,
we deny Bender’s motion as moot. See Bender III, 971 N.W.2d at 260 n.1 (denying similar
motion as moot).
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extended for the benefit of a person who has reached the age of majority if the person
satisfies the statutory definition of “child” because he or she is incapable of self-support.
See, e.g., State ex rel. Jarvela v. Burke, 678 N.W.2d 68, 72 (Minn. App. 2004); see also
McCarthy v. McCarthy, 222 N.W.2d 331, 334 (Minn. 1974). In this case, Bender seeks to
establish that the parties’ son is a “child” based on the third prong of the statutory
definition.
We are reviewing the district court’s ruling on a motion to reopen filed pursuant to
section 518.145, subdivision 2, of the Minnesota Statutes. Under that statute, a district
court
may relieve a party from a judgment and decree, order, or
proceeding under this chapter . . . and may order a new trial or
grant other relief as may be just for the following reasons:

(1) mistake, inadvertence, surprise, or excusable
neglect;

(2) newly discovered evidence which by due
diligence could not have been discovered in time to move for
a new trial under the Rules of Civil Procedure, rule 59.03;

(3) fraud, whether denominated intrinsic or
extrinsic, misrepresentation, or other misconduct of an adverse
party;

(4) the judgment and decree or order is void; or

(5) the judgment has been satisfied, released, or
discharged, or a prior judgment and decree or order upon which
it is based has been reversed or otherwise vacated, or it is no
longer equitable that the judgment and decree or order should
have prospective application.

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Minn. Stat. § 518.145, subd. 2 (2022). Bender’s motion is based on the second paragraph
of this statute, which applies to newly discovered evidence. In Bender III, the supreme
court held that the evidence identified by Bender in her motion to reopen may be considered
newly discovered evidence. 971 N.W.2d at 266-67.
A motion to reopen based on newly discovered evidence may be granted if the newly
discovered evidence (1) was not “discoverable before the relevant proceeding by the
exercise of reasonable diligence”; (2) is “relevant and admissible”; and (3) is not
“cumulative, contradictory, or impeaching” and “will likely affect the outcome of the
case.” Id. at 266 (quotations omitted). Because the caselaw uses the word “and” in relation
to the three requirements, the moving party must establish all three requirements. J.L.B. v.
T.E.B., 474 N.W.2d 599, 602 (Minn. App. 1991) (applying Minn. R. Civ. P. 60.02), rev.
denied (Minn. Oct. 11, 1991); Kozak v. Weis, 348 N.W.2d 798, 802-03 (Minn. App. 1984)
(same).
A party seeking relief under section 518.145, subdivision 2, bears the burden of
establishing the requirements for relief by a preponderance of the evidence. Knapp v.
Knapp, 883 N.W.2d 833, 835 (Minn. App. 2016). This court applies an abuse-of-discretion
standard of review to a district court’s ruling on a motion to reopen. Bender III, 971
N.W.2d at 262.
B.
The district court denied Bender’s motion to reopen on the grounds that she did not
establish any of the three requirements of the caselaw interpreting paragraph 2 of section
518.145, subdivision 2. See id. at 266. First, the district court determined that Bender did
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not exercise reasonable diligence in obtaining the newly discovered evidence because she
“waited more than 2 years and 10 months to file the SSI [i.e., Supplemental Security
Income] application.” Second, the district court determined that the newly discovered
evidence is not admissible because it is not relevant and, if it were relevant, the danger of
unfair prejudice and confusion would substantially outweigh its probative value. See Minn.
R. Evid. 401, 403. Third, the district court determined that the newly discovered evidence
would not change the result of the motion to extend child support because the Social
Security Administration (SSA) applied a different legal standard than the standard that
applies to Bender’s motion to extend and because the newly discovered evidence does not
prove that the parties’ son “is incapable of self-support.” See Minn. Stat. § 518A.26,
subd. 5.
Bender argues that the district court erred in each of its three determinations. 2 We
will focus on the district court’s third determination. Bender challenges that determination

2We note that Bender criticizes the district court for excessive reliance on
Bernhard’s proposed order and for adopting many of his proposed findings and conclusions
verbatim. She does not argue that this court should reverse on that ground alone. Her
argument is appropriate in light of Bliss v. Bliss, 493 N.W.2d 583 (Minn. App. 1992), rev.
denied (Minn. Feb. 12, 1993), in which this court stated that the “wholesale adoption” of
proposed findings could “raise[] the question of whether the trial court independently
evaluated each party’s testimony and evidence” but that “the verbatim adoption of a party’s
proposed findings and conclusions of law is not reversible error per se.” Id. at 590. We
have carefully compared the district court’s order with Bernhard’s proposed order, which
are identical or similar in numerous paragraphs. But the differences are sufficient in
quantity and quality to indicate that the district court “independently evaluated each party’s
testimony and evidence.” See id. Nonetheless, we will consider the extent of the district
court’s verbatim adoption of proposed findings and conclusions in the course of
determining whether the district court abused its discretion. See Dukes v. State, 621
N.W.2d 246, 258 (Minn. 2001); Schallinger v. Schallinger, 699 N.W.2d 15, 23 (Minn.
App. 2005), rev. denied (Minn. Sept. 28, 2005).
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by arguing that the district court misinterpreted the statutory standard, “incapable of self-
support,” and did not properly consider the newly discovered evidence.
The phrase “incapable of self-support” in section 518A.26, subdivision 5, has not
been interpreted in a prior appellate opinion in a way that provides additional meaning.
The district court referred to a lay dictionary to explain that the term means “lacking
capacity, ability, or qualification for the purpose” of being “independent, self-sufficient,
and self-reliant.” Bender contends that the district court erred by not giving sufficient
weight to the SSA’s disability determination in its analysis of whether the parties’ son is
“incapable of self-support.”
The district court did not err by not deeming the SSA’s determination to be
conclusive of the relevant factual issue. The district court was not required by law to give
preclusive effect to the SSA’s determination. Rather, it was appropriate for the district
court to consider the evidentiary value of the newly discovered evidence and determine
whether that evidence, in combination with the evidence previously considered, may prove
that the parties’ son “is incapable of self-support.” See Minn. Stat. § 518A.26, subd. 5.
This court previously noted that Bender’s newly discovered evidence consists of
two documents that post-dated the district court’s September 2019 order denying Bender’s
motion to extend child support. Bender II, 2021 WL 1525239, at *3. The first new
document is a May 1, 2020 letter from the SSA to Bender. The first paragraph of the letter
states that the SSA has determined that the parties’ son is eligible for SSI benefits as of
September 2019. The second paragraph of the letter states, “The rest of this letter explains
his current monthly payment, his back payments, how we figured his payment amount,
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information about Medicaid, your reporting responsibilities, and his appeal rights.” The
letter is accompanied by 14 pages of attachments, which provide additional information
about federal regulations concerning the SSI program and its benefits. The letter and its
attachments provide information to Bender and the parties’ son about the amount of his
SSI benefits and how his SSI benefits will be administered. The letter does not contain any
information about the parties’ son’s disability, the SSA’s analysis of the information
presented to it concerning the parties’ son’s condition, or the SSA’s determination that the
parties’ son is disabled for purposes of the SSI program.
The second new document is a 12-page document created by the SSA entitled
“Disability Determination Explanation” and dated April 2020. The document recites the
information received by the agency but does not contain much discussion about the reasons
for the SSA’s determination that the parties’ son is disabled for purposes of SSI benefits.
The second new document includes numerous one-paragraph summaries of records of prior
treatment and therapy. Much of that part of the document simply repeats information that
Bender previously submitted into evidence in support of her motion to extend child
support. The district court noted in its order that the document includes summaries of only
a few appointments that occurred after the district court denied Bender’s motion to extend
child support. The district court determined that the summaries of the recent appointments
are consistent with the evidence that was before the district court in September 2019 and
do not show that the parties’ son is incapable of self-support. Specifically, the district court
found that the recent evidence shows that the parties’ son had obtained a new job and,
although he had received some negative feedback, had agreed to “approach work with a
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positive attitude” and “was able to listen and agree to handling things differently.” The
second new document supports the district court’s determination. The second new
document also shows that the parties’ son had remained employed in the new position for
at least one month, which tends to show that he is capable of self-support.
In light of the two new documents that Bender submitted with her motion to reopen,
which have limited evidentiary value, the district court did not abuse its discretion by
determining that the newly discovered evidence would not change the result of the motion
to extend child support. Thus, the district court did not abuse its discretion by determining
that Bender has not established the third requirement of the caselaw interpreting section
518.145, subdivision 2. See B ender III, 971 N.W.2d at 266. Because Bender is required
to establish all three requirements, it is unnecessary to consider whether the district court
erred by determining that Bender has not established the first and second requirements.
In sum, the district court did not err by denying Bender’s motion to reopen her
motion to extend child support.
Affirmed; motion denied.