Fleck v. Fleck

• Decision Date: 04 August 1983
• Docket Number: No. 10323,10323
• Parties: Mike A. FLECK, Plaintiff and Appellee, v. Regina K. FLECK, now Regina K. Henne, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 786

337 N.W.2d 786

Mike A. FLECK, Plaintiff and Appellee, v. Regina K. FLECK, now Regina K. Henne, Defendant and Appellant.

Civ. No. 10323.

Supreme Court of North Dakota.

Aug. 4, 1983.

Floyd B. Sperry [argued], of Sperry & Erickson, Bismarck, for defendant and appellant.

A. William Lucas [argued], of Lundberg, Conmy, Nodland, Lucas & Schulz, Bismarck, for plaintiff and appellee.

PAULSON, Justice.

This is an appeal by Regina K. Fleck, now Regina K. Henne [Regina], from an order of the District Court of Burleigh County denying her motion for relief from a judgment in a divorce case. We affirm.

In May of 1981, Mike A. Fleck [Mike] sought a divorce from his wife of 31 years, Regina. Mike contacted a lawyer to start the divorce action and asked that he send a proposed property settlement agreement to his wife, Regina. In a letter from Mike's lawyer to Regina dated May 27, 1981, which accompanied a copy of the proposed property settlement agreement, Regina was asked to examine the agreement and if it was set forth in accordance with Mike's and Regina's wishes, to call and make an appointment so that the property settlement agreement could be signed. The letter further indicated that Mike's lawyer would explain to Regina the property settlement agreement and the procedures for a divorce. The letter concluded with a statement that Regina was "of course, welcome to take this agreement to an attorney of your choice should you wish to do so". Regina did not seek the advice of another attorney.

Regina and Mike went to the law office of Mike's attorney on July 20, 1981. In an affidavit, Mike's attorney stated that during this conference he again indicated to Regina that she was free to contact her own lawyer for representation and he further asked her if she had any questions concerning the action. Both Regina and Mike signed the property settlement agreement at that time.

The property settlement agreement provides that Mike, who is a trucker, was to receive a 1977 International Tractor and Wilson trailer; a 1978 Jeep pickup; an adding machine; a "file cabinet-safe combination"; one-half interest in a snow blower; a life insurance policy; a savings account and a personal checking account; and personal items including his clothing.

Regina, who was at that time employed in the laundry department of a Bismarck hospital, received by way of the agreement a 1977 New Yorker automobile; all furniture and fixtures in the personal residence of the parties; her personal checking account and employee benefits; and her clothing and personal items.

The agreement also provides as follows:

"4.

"That the defendant Regina K. Fleck shall have the right to live in the personal residence of the parties ... for a period of ten years from entry of the divorce judgment herein, or until such sooner time that she may remarry or enter into a cohabitation arrangement with a member of the opposite sex in said personal residence. During the time that the defendant shall live in the personal residence of the parties, the defendant shall make all mortgage payments, tax payments, insurance payments, utility payments, and other expenses of the home. Major repairs, defined as those exceeding $100.00 shall be shared equally by the parties hereto upon prior approval of the plaintiff.

"Upon the expiration of ten years from the date of entry of judgment herein, or upon the defendant remarrying, or upon the defendant entering into a cohabitation arrangement with a member of the opposite sex within the personal residence of the parties, the personal residence of the parties shall be listed for sale at a price to be agreed upon by the parties, and if the parties cannot agree on a sale price, that an appraiser selected by the parties shall appraise the property and the property shall be listed for sale at a price set by the appraisal. Upon the sale of the personal residence, the mortgage shall be paid, all closing costs and sale costs shall be paid, and the balance remaining thereafter shall be divided equally between the parties."

The agreement also provided that Mike could proceed with the divorce action as a default matter and that Regina expressly waived any further requirement of notice prior to the entry of a default judgment against her.

A hearing on the divorce action was held on September 4, 1981. Regina was not notified of the hearing, although Mike and his attorney claimed that an attempt was made to do so. Mike testified that he and Regina entered into the agreement for the division of the property and that Regina signed such agreement. Mike also testified that he had discussed the proposed property division with Regina and that she was agreeable to it. Mike further testified that they had discussed the matter of Regina living in the home for ten years and then the home being sold and the equity equally divided, and that this provision was also agreeable to both parties.

At the close of the hearing, the trial judge granted the divorce and stated that he had reviewed the provisions of the property settlement agreement and found that they were "an adequate and satisfactory disposition of the rights and obligations of the parties, particularly as it pertains to the division of the property and their obligations for support". The court further noted the provision of the agreement whereby Regina agreed that the divorce would proceed as a default matter and that she expressly waived notice prior to any default judgment being entered. The court adopted the agreement as part of its order for judgment.

The findings of fact, conclusions of law, order for judgment, and the judgment were entered on the same date as that of the hearing, and Mike's attorney sent Regina a copy of the divorce judgment.

Both Mike and Regina have remarried since entry of the divorce judgment. Upon learning of Regina's remarriage, Mike informed her that the house should be sold and the equity divided pursuant to the provision in the property settlement agreement. On August 30, 1982, Regina brought a motion to "reopen, vacate and set aside findings, conclusions, order and judgment" on the grounds that the court's findings of fact do not comply with Rule 52(a) of the North Dakota Rules of Civil Procedure and because of "mistake, inadvertence, surprise, and excusable neglect".

In an affidavit submitted with her motion, Regina admitted signing the property settlement agreement, but added that she had been asked to accompany Mike to the attorney's office, and "had no understanding of what her legal rights were, did not inquire in regard thereto, and assumed that she could do nothing about a defense, as to the property settlement agreement, until she did seek advice, and which was done after her remarriage". Regina also alleges that Mike is a "man of experience", running a "substantial trucking business", while she "only attended a country school, through the 7th grade", and had never before been in a lawyer's office or been involved in a lawsuit.

Regina further alleges that she did not understand what was meant by some of the terminology in the agreement that she signed, and that, at the office of Mike's lawyer, she was "hastily shown some papers, which she did not read or understand, not knowing what her rights were, nor what the value of the property of the parties amounted to, and because of this lack of knowledge, believes that she suffered from inadvertence, surprise, mutual mistake, and excusable neglect for which reason the judgment entered in this action should be re-opened".

Mike denied in an affidavit that he had taken advantage of Regina's lack of education or experience, stating that his education and experience is "virtually the same" as that of Regina's. He also stated that during the time the parties were negotiating their property settlement agreement Regina "refused to talk to him and refused to discuss property division, and made very few inquiries concerning the division of property". Mike added that he believed the division of property was "fair and equitable".

In an order dated October 5, 1982, the district court denied Regina's motion on the grounds that her motion was not timely, "having been filed very near the end of one year from the date of the entry of judgment", and that there was "insufficient proof by affidavit or testimony to establish the grounds" set forth in Rule 60(b), N.D.R.Civ.P.

The major issue raised by Regina in her appeal is whether or not the district court erred in denying her motion for relief from judgment.

Regina relies upon subsections i, ii, and iii, of Rule 60(b), N.D.R.Civ.P. ¹ , which provide:

"(b) Mistakes--Inadvertence--Excusable Neglect--Newly Discovered Evidence--Fraud--Etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment or order in any action or proceeding for the following reasons: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (iii) fraud (whether denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ..."

The function of this court in reviewing a trial court's denial of a motion to set aside a regularly entered judgment is not to determine if the trial court was substantively correct in entering the judgment from which relief is sought, but is to determine if the trial court abused its discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not established. Dvorak v. Dvorak, 329 N.W.2d 868, 870 (N.D.1983); Bridgeford v. Bridgeford, 281 N.W.2d 583, 586 (N.D.1979); Small v. Burleigh County, 239 N.W.2d 823, 828 (N.D.1976). A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Dvorak, supra; Coulter v. Coulter, 328 N.W.2d 232, 238 (N.D.1982). An abuse...