In re the Marriage of: Tonette Ann (Blanton) Closmore, petitioner, Respondent, vs. Merle Richard Blanton, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

In re the Marriage of:

Tonette Ann (Blanton) Closmore, petitioner,

Respondent,

vs.

Merle Richard Blanton,

Appellant.

Filed September 21, 2004

Ramsey County District Court

File No. DM-F3-98-3120

Tonette Ann Closmore, 7057 23rd Street North, Oakdale, Minnesota 55128 (pro se respondent)

Bradford Colbert, Special Assistant Public Defender, Tricia Connelly, Certified Student Attorney, 875 Summit Avenue, Room 254, St. Paul, Minnesota 55105 (for appellant)

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

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            On appeal in this maintenance dispute, appellant Merle Blanton argues that the Karon waiver in the stipulated judgment dissolving his marriage to respondent Tonette Closmore is not supported by adequate findings of fact.  He also argues that the waiver is invalid because the dissolution court did not independently evaluate that waiver, and, therefore, the waiver should not have been used as a basis to reject his motion to modify his maintenance obligation.  We affirm. 

FACTS

            The stipulated 1999 judgment dissolving the parties' marriage set husband's maintenance obligation and included a Karon waiver.  Husband was later incarcerated, maintenance arrears accrued, and husband moved to modify his maintenance obligation and to forgive his arrears.  On May 2, 2003, a referee ruled that an evidentiary hearing was required to address the matter, set a hearing, and suspended the accrual of interest on husband's arrears pending further order of the court.  After the district court approved that order, wife obtained permission to move for reconsideration, the referee struck the hearing, and the parties were directed to submit written arguments.  On December 23, the referee vacated the May 2 order and denied husband's motion.  The district court approved that order.  Husband appeals.  Wife did not file a brief, and this court directed the appeal to proceed under Minn. R. Civ. App. P. 142.03. 

DECISION

I

            The 1999 dissolution judgment decided the issue of maintenance.  The time to appeal that judgment expired before husband filed this appeal.  See Minn. R. Civ. App. P. 104.01, subd. 1 (stating time to appeal judgments is 60 days from entry); Bongard v. Bongard, 342 N.W.2d 156, 158 (Minn. App. 1983) (stating "[t]ime limits on appeals are jurisdictional").  Therefore, challenges to the propriety of the 1999 judgment's resolution of the maintenance issue, and allegations that the record is insufficient to support that resolution, are not properly before this court.  See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370-71, 147 N.W.2d 100, 103 (1966) (holding that appealable orders are final after the time for appeal has expired even if district court's decision may have been wrong); Nussbaumer v. Fetrow, 556 N.W.2d 595, 599 (Minn. App. 1996) (stating Minnesota does not permit collateral attack of facially valid judgments and that judgments alleged to be merely erroneous or founded on nonjurisdictional defects are "not subject to attack"), review denied (Minn. Feb. 26, 1997).  The question before this court is to identify the effect, if any, that the judgment's resolution of the maintenance issue has on husband's current motion to modify his maintenance obligation; whether the judgment contains a valid Karon waiver.  For these reasons, the cases cited by husband that do not address the existence of a Karon waiver are distinguishable. 

II

            Parties to a dissolution may, by stipulation, preclude modification of spousal maintenance

if the court makes specific findings that the stipulation is fair and equitable, is supported by consideration described in the findings, and that full disclosure of each party's financial circumstances has occurred.  The stipulation must be made a part of the judgment and decree.

Minn. Stat. § 518.552, subd. 5 (2002).  An identical statute was in effect when the district court dissolved the parties' marriage in August 1999.  Compare Minn. Stat. § 518.552, subd. 5 (2002) with Minn. Stat. § 518.552, subd. 5 (1998).  "[I]n the face of the legislative mandate for specific trial court findings of fact[,]" appellate courts "cannot infer" the existence of the elements necessary for a valid Karon waiver.  Santillan v. Martine, 560 N.W.2d 749, 751 (Minn. App. 1997). 

            Here, the judgment states both that "the parties have signified their assent to a [marital termination agreement] which the Court finds to be fair and equitable" and that the MTA is "incorporate[d] by reference [into the judgment]."  Husband argues that these findings are insufficient to satisfy the requirement of Minn. Stat. § 518.552, subd. 5, that the district court make a finding that the stipulation is fair and equitable.  The statute, however, requires only a "specific finding[] that the stipulation is fair and equitable[.]"  Minn. Stat. § 518.552, subd. 5 (emphasis added).  Thus, the district court's statement that it "finds" the stipulation "fair and equitable" satisfies the statute.  Cf. Minn. Stat. § 645.08(1) (2002) (requiring statutes to be interpreted according to common and approved usage of words); Santillan, 560 N.W.2d at 751 (stating statutory Karon waiver is "effective only if the trial court, in adopting the stipulation, makes specific written findings that the stipulation is fair and equitable and supported by specified consideration, and that both parties have made full financial disclosures).  The waiver is not defective for lack of a finding that the stipulation is fair and equitable. 

            The dissolution judgment states that "[t]he consideration supporting the said waiver of either parties' ability to modify spousal maintenance is the amount and duration of the spousal maintenance awarded herein."  Husband argues that this finding is insufficient to be the statutorily required consideration finding because "[t]he court made no specific findings that the amount and duration of the spousal maintenance award was something the parties bargained for or that there was anything of value given in return for the promise to pay spousal maintenance."  But because the finding of consideration exists, the requirement of a finding is satisfied.  Also, because the amount and duration of the maintenance award was something to which the parties stipulated, how it could be anything but the product of the parties' MTA negotiation is unclear.  Moreover, if husband is arguing that consideration did not exist, his argument goes to the propriety of the district court adopting the waiver at the time it entered the 1999 judgment, and the argument is not properly before this court on appeal from the denial of husband's 2003 motion to modify maintenance. 

            To the extent husband argues that this proceeding was functionally one to reopen the judgment and to remove or to not enforce the Karon waiver because it is no longer equitable that the waiver have prospective effect, we note that we would affirm what is essentially the district court's denial of such a motion.  See Minn. Stat. § 518.145, subd. 2(5) (2002) (allowing party to be relieved from judgment if it is no longer equitable that judgment have prospective effect).  Because the district court denied husband's motion on the merits, it implicitly determined that the motion was timely.  See id. at subd. 2 (stating motion to reopen under Minn. Stat. § 518.145, subd. 2(5), must be brought within a "reasonable time").  In light of husband's incarceration, we concur with the implicit determination that husband's 2003 motion to reopen a 1999 judgment was not untimely.  Cf. Maranda v. Maranda, 449 N.W.2d 158, 165-66 (Minn. 1989) (stating that motion to reopen for fraud on the court made six years after entry of decree was at "outer limits of reasonableness," but not untimely).  We must also concur, however, with what is, at bottom, the district court's determination that because husband knew of his possible incarceration when he entered the stipulation containing the Karon waiver, his incarceration does not render it inequitable to continue to enforce that waiver. 

            Affirmed.