Marcus Edward Jundt, petitioner, Respondent, vs. Charlene Massey Jundt, a.k.a. Charlene Karen Jundt, Appellant.

Marcus Edward Jundt, petitioner, Respondent, vs. Charlene Massey Jundt, a.k.a. Charlene Karen Jundt, Appellant. A06-1573, Court of Appeals Unpublished, July 17, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1573

 

Marcus Edward Jundt, petitioner,

Respondent,

 

vs.

 

Charlene Massey Jundt,

a.k.a. Charlene Karen Jundt,

Appellant.

 

Filed July 17, 2007

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 27FA 282 382

 

Peter H. Watson, Peter H. Watson & Associates, P.A., 2124 Dupont Avenue South, Minneapolis, MN 55405 (for respondent)

 

Kathleen M. Picotte Newman, Joani C. Moberg, Larkin Hoffman Daly & Lindgren, Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431-1194 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant Charlene Jundt challenges the district court orders of May 31, 2006, and July 28, 2006, arguing that the district court erred by (1) modifying the parties' stipulation regarding payment of a parenting consultant; and (2) ordering her to pay one-half of the storage fees for the parties' wine.  We affirm.

D E C I S I O N

            The district court order of May 31, 2006, denied respondent's request for spousal maintenance abatement; denied appellant's request for conduct-based attorney fees; and ordered appellant to pay half of the parenting-consultant fees and half of the wine-storage fees.  Both parties requested that the district court reconsider its decision, which the court generally denied on July 28, 2006.  In this appeal, appellant argues that the district court erred in not reconsidering its order of May 31.

I.

The district court order of May 31, 2006, that appellant is challenging requires the parties to share the cost of the parenting consultant.  This requirement is consistent with the provision in the second amended judgment and decree, which was filed on April 5, 2005.  On appeal, appellant contends the district court erred in including this provision in the second amended judgment and decree because it disregarded the provision in the parties' stipulation of January 2005, in which the parties agreed that respondent was responsible for paying the parenting-consultant fees.  Appellant argues that the district court lacked jurisdiction to modify the parties' stipulation regarding payment of the parenting-consultant fees.  We disagree.

Once a judgment and decree based on a stipulation has been entered, the need for finality is paramount, and generally "the stipulation cannot thereafter be the target of attack by a party seeking relief from the judgment and decree."  Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997).  This appeal is taken from the orders of May 31, 2006, and July 28, 2006.  But appellant failed to challenge in a timely manner the alleged error in the second amended judgment and decree of April 5, 2005, regarding payment of the parenting-consultant fees.  And the time for appealing the second amended judgment and decree has expired.  See Minn. R. Civ. App. P. 104.01 (providing that the time for appeal from a judgment is within 60 days after entry and from an appealable order is within 60 days after service of notice of its filing); Minn. R. Civ. P. 52.02, 59.03 (governing the procedure for amendment and motion for a new trial, respectively); see also Mingen v. Mingen, 679 N.W.2d 724, 727 (Minn. 2004) (stating that "[i]f the time for appeal from an order expires without appeal having been taken, then the order becomes final and the district court's jurisdiction to amend the order is terminated" (quotation omitted) (alteration in original)). 

Thus, the district court properly refused to consider the merits of appellant's argument that the judgment of April 5, 2005, was inaccurate with regard to the issue of parenting-consultant fees.  The court correctly concluded that the stipulation and order had been superseded by the judgment of April 5: 

The parties . . . entered into a stipulation on January 11, 2005 wherein they agreed that the [respondent] would pay all of the costs of the Parenting Consultant.  The final Amended Judgment and Decree entered on April 5, 2005 directs the parties to share equally the cost of the Parenting Consultant.  The stipulation merged into and is superseded by the Amended Judgment and Decree.  Accordingly, absent the Parenting Consultant's determination otherwise, each of the parties shall be responsible for one-half of the Parenting Consultant fees incurred after April 5, 2005.

 

"Even though the decision of the trial court in the first order may have been wrong, if it is an appealable order it is still final after the time for appeal has expired."  Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966).  Here, the time for appealing an alleged error in the parties' 2005 dissolution judgment has expired. 

II.

Appellant argues that the district court erred by ordering her to pay half of the outstanding fees for storing the parties' wine, arguing that (1) there was not a proper motion before the court regarding the fees; (2) the court failed to make findings supporting its award; and (3) the court erred in not holding respondent's claim was barred by laches. 

Appellant argues that the district court committed error by addressing the wine-storage fee issue because respondent did not raise the issue through a proper motion.  Appellant is correct that by raising this issue in an affidavit in response to a motion, respondent did not comply with the family court procedure for motions.  See Minn. R. Gen. Pract. 303.03(a).  But section (b) of rule 303.03 gives the district court discretion when a party fails to comply with the motion-filing rules: 

In the event an initial moving party fails to timely serve and file documents required in this rule, the hearing may be cancelled by the court.  If responsive papers are not properly served and filed, the court may deem the initial motion or motion raising new issues unopposed and may issue an order without hearing.  The court, in its discretion, may refuse to permit oral argument by the party not filing the required documents, may consider the matter unopposed, may allow reasonable attorney's fees, or may take other appropriate action.

 

Minn. R. Gen. Pract. 303.03(b).  Because these actions under section (b) are permissive, the district court had the discretion to consider respondent's affidavit, which stated "I am asking that the Court give me a credit of $1,700.00 for [appellant's] unpaid portion of the wine appraisal and storage." 

            Appellant also argues that the district court did not make sufficient findings to support its order that the parties share the wine-storage fees equally.  We disagree.  Here, the district court had previously ordered that the wine collection be divided equally between the two parties.  Appellant argues that respondent should be responsible for the wine-storage fees, because he chose to incur the costs by removing the wine from the parties' home wine cellar.  While the district court did not specifically address this argument, in the order of May 31, 2006, the district court reasoned that the parties should share equally in the costs of storing the wine, stating:

Each of the parties were awarded one-half of the wine collection and ordered to pay one-half of the cost of the wine appraiser.  The Amended Judgment and Decree is silent as to who is responsible for paying the cost of the wine storage at Haskell's.  Each should pay an equal share.

 

Because the court's order that the parties share equally in both the wine and the costs associated with the wine before division is consistent with the previous order, we cannot say the findings are not sufficient or that the district court abused its discretion. 

            Finally, appellant argues that the district court erred by addressing this issue and declining to apply the equitable doctrine of laches.  But appellant failed to raise this issue before the district court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that this court will generally not consider matters not argued and considered in the district court).  And even if appellant had argued laches, a district court's decision whether to apply the doctrine of laches will not be disturbed absent an abuse of discretion.  Opp v. Opp, 516 N.W.2d 193, 196 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994).  The doctrine of laches is intended "to prevent one who has not been diligent in asserting a known right from recovering at the expense of one who has been prejudiced by the delay."  Harr v. City of Edina, 541 N.W.2d 603, 606 (Minn. App. 1996) (quotation omitted).  On this record we cannot say that appellant was prejudiced by respondent's failure to raise the issue of payment of the fees for wine storage earlier in the proceedings.

Affirmed.