Pekarek v. Wilking

Decision Date14 January 1986
Docket NumberNo. CX-85-1644,CX-85-1644
PartiesIn re the Marriage of James R. PEKAREK, Petitioner, Respondent, v. Judith Ann (Pekarek) WILKING, Appellant.
CourtMinnesota Court of Appeals

Syllabus by the Court

1. The trial court properly ordered entry of amended judgment and decree based

on the parties' stipulation where the stipulation was voluntarily entered.

2. Services of court-appointed expert were properly terminated where case was settled by stipulation.

3. Child support was properly modified by stipulation where not violative of statutory guidelines.

4. Trial court properly awarded bad faith attorney's fees where motion to vacate a stipulation was without factual or legal basis.

5. Attorney's fees pursuant to Minn.Stat. Sec. 518.14 are denied in absence of evidence of financial need.

Alan C. Eidsness, Sarah McKenzie, Henson & Efron, P.A., Minneapolis, for respondent.

M. Sue Wilson, Wilson & Pomerene, P.A., Minneapolis, for appellant.

Heard, considered and decided by POPOVICH, C.J., RANDALL and CRIPPEN, JJ.



This appeal is from an order directing entry of amended judgment and decree affecting the parties' dissolution. Appellant claims (1) the order should be vacated because the stipulation on which it was based was not voluntarily entered, (2) the trial court erred in improperly managing an expert appraisal, (3) the trial court improperly modified child support, (4) respondent should not be awarded bad faith attorney's fees, and (5) appellant should be awarded attorney's fees based on financial need. We affirm.


Appellant Judith Ann (Pekarek) Wilking and respondent James R. Pekarek were married in 1966 and divorced in September 1983. They have four children, only one being presently emancipated.

On January 24, 1984, the parties' final decree and judgment was amended to cause respondent to receive all of the parties' limited partnership tax shelters and respondent to pay appellant $20,000 as a property settlement. Appellant was awarded $1500 per month for three years in spousal support and $2600 per month in child support for the then four minor children.

Respondent appealed. This court affirmed regarding maintenance, remanded for findings regarding child support, remanded regarding tax shelter valuations, and ordered appointment of a neutral expert to aid the trial court in valuation. See Pekarek v. Pekarek, 362 N.W.2d 394 (Minn.Ct.App.1985). On February 26, 1985, the trial court appointed Mitchell Joelson and Touche Ross & Co., certified public accountants, to prepare an expert opinion regarding valuation.

Respondent's employment was terminated, but he was maintained on payroll through April 30, 1985. Because he had not yet acquired new employment, respondent moved for modification of maintenance and support. The trial court stayed those motions with its February 26 order.

On May 2, 1985, the parties met with the trial court. Respondent claims that was the date of a scheduled settlement conference. Appellant claims the hearing on remand was scheduled on that date and the settlement conference was unexpected.

The parties met briefly with the trial court, which discussed its conversations with the accounting expert and his preliminary report. The parties then separated with their own counsel to develop a settlement. After three hours, the parties reconvened with the trial court to present their stipulated agreement. The stipulation was read into the record with the scrivening to be done later. Appellant was questioned by her counsel and the trial court regarding her agreement with the settlement. Appellant expressed agreement, but without enthusiasm. She questioned the child support provisions, and the court explained them. Appellant phoned the trial court the following day to express her continued confusion.

Respondent reduced the stipulation to writing and on May 13, 1985 mailed copies to appellant for signing. Enclosed were two checks totaling $25,000 payable to appellant: one for appellant's attorney's fees prior to remand, and the second for maintenance and support arrearages. Respondent instructed appellant in writing the checks were to be negotiated only after settlement was completed. Appellant met with her counsel who encouraged her to sign the stipulation. Appellant signed the involved documents and returned them to respondent with one modification made by her counsel.

Appellant's attorney then discontinued legal practice. Appellant retained other counsel who wrote the trial court on May 22, 1985 explaining appellant's continued confusion and requesting the court hold the stipulation. During this time, the checks received by appellant were negotiated despite their conditional delivery.

On June 12, 1985, respondent moved for entry of amended judgment and decree based on the parties' stipulation and for attorney's fees pursuant to Minn.Stat. Sec. 549.21. On June 24, 1985, appellant moved to vacate the stipulation and set the matter for trial.

By order on August 1, 1985, the trial court denied appellant's motion and granted respondent's, and awarded respondent $1500 in attorney's fees. On August 26, 1985, appellant filed notice of appeal from the August 1 order requesting reversal and remand. Third counsel represented her on appeal.


1. Did the trial court abuse its discretion in ordering entry of amended judgment and decree based on the parties' stipulation?

2. Did the trial court err in not providing distribution and cross-examination of expert's appraisal?

3. Did the trial court properly modify child support?

4. Did the trial court abuse its discretion in awarding attorney's fees pursuant to Minn.Stat. Sec. 549.21?

5. Is appellant entitled to attorney's fees pursuant to Minn.Stat. Sec. 518.14?


1. Appellant claims the stipulation should be vacated because she did not understand its terms, she was improperly encouraged by the trial court to sign, and her attorney on remand was incompetent.

Courts favor stipulations, particularly in dissolution cases, as a means of simplifying and expediting litigation. Stipulations are treated as binding contracts. They cannot be repudiated or withdrawn by one party without the consent of the other party except by leave of the court for cause shown. Courts may set aside stipulations for fraud, duress or mistake. Upon appeal a trial court's determination whether or not to vacate a stipulation will not be disturbed in the absence of an abuse of discretion.

Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn.Ct.App.1984) (citations omitted). For a stipulation to stand, "a meeting of minds on the essential terms of the agreement" must have occurred. Ryan v. Ryan, 292 Minn. 52, 55, 193 N.W.2d 295, 297 (1971). If the agreement was improvidently made, it may be vacated. John v. John, 322 N.W.2d 347, 348 (Minn.1982).

This court has considered the following factors in determining whether a stipulation was entered into properly: (1) whether the party was represented by competent counsel; (2) whether extensive and detailed negotiations occurred; (3) whether the party agreed to the stipulation in open court; and (4) whether when questioned by the judge the party acknowledged understanding the terms and considering them fair and equitable. Tomscak, 352 N.W.2d at 466.

Here, appellant's counsel on remand conferred with appellant repeatedly and took an active role negotiating the stipulation. While counsel's readiness to retire may have led to mixed motives in wanting the matter settled, there is no evidence of her counsel's incompetency and the trial court so found.

While appellant claims she was unprepared for and surprised by the settlement conference, the record does not indicate opposition. The stipulation was reached after about three hours of negotiation and read into the record in the parties' presence. When questioned by the trial court, appellant stated she could accept and live with the general terms of the agreement. Although appellant's responses in open court may have been made reluctantly, she clearly agreed to the stipulation and did not withhold her consent. When she appeared confused regarding child support, the court explained the stipulated terms of the support agreement and appellant stated she understood.

When later reduced to writing, the stipulation was mailed to appellant's counsel for signing. Appellant had opportunity for reflection and further counseling. She had more than two weeks between the court appearance and executing the stipulation. Appellant is well-educated and well able to consider her options. After doing so, the stipulation as modified by her attorney was signed and returned, indicating her consent.

Appellant also cashed the checks made payable to her. She had been informed...

To continue reading

Request your trial
16 cases
  • In re Marriage of Ahmed v. Haroun, No. A06-1773 (Minn. App. 7/31/2007)
    • United States
    • Minnesota Court of Appeals
    • July 31, 2007
    ... ... Pekarek v. Willemy, 380 N.W.2d 161, 163 (Minn. App. 1986) ...         The scope of the Tomscak factors was narrowed by a legislative amendment to ... ...
  • Estate of Thomas v. Sheffield
    • United States
    • South Dakota Supreme Court
    • November 29, 1993
    ... ... Sheffield did not file a Reply Brief. Cf. Pekarek v. Wilking, 380 N.W.2d 161 (Minn.Ct.App.1986) (discussing appellant's claim that the stipulation should be vacated because she did not understand its ... ...
  • Holmes v. Holmes, No. A06-1897 (Minn. App. 12/24/2007)
    • United States
    • Minnesota Court of Appeals
    • December 24, 2007
    ... ... Pekarek v. Wilking, 380 N.W.2d 161, 163 (Minn. App. 1986) ...         We see no error in the trial court's determination of the custody issue ... ...
  • In re Gulbronson
    • United States
    • Minnesota Court of Appeals
    • June 18, 2012
    ... ... Pekarek v. Wilking, 380 N.W.2d 161, 163 (Minn. App. 1986).Here, appellant was represented by counsel and participated in negotiations lasting five hours ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT