Peterson v. Peterson, 960124

• Decision Date: 13 November 1996
• Docket Number: No. 960124,960124
• Citation: 555 N.W.2d 359
• Parties: Michael Dennis PETERSON, Plaintiff and Appellant, v. Deidre L. PETERSON, Defendant and Appellee. Civil
• Court: North Dakota Supreme Court

Page 359

555 N.W.2d 359

Michael Dennis PETERSON, Plaintiff and Appellant, v. Deidre L. PETERSON, Defendant and Appellee.

Civil No. 960124.

Supreme Court of North Dakota.

Nov. 13, 1996.

Joanne H. Ottmar, of Ottmar & Ottmar, Jamestown, for plaintiff and appellant. Appearance by appellant Michael Peterson.

Maureen Holman, of Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, for defendant and appellee.

VANDE WALLE, Chief Justice.

Michael Peterson appealed from a December 6, 1995 judgment dividing marital property and awarding custody and child support. We hold the trial court did not abuse its discretion in partially vacating a prior divorce decree. We further hold the trial court's division of marital property and award of custody were not clearly erroneous, but it must redetermine child support in accordance with the Child Support Guidelines. We affirm in part, reverse in part, and remand for a redetermination of child support.

Michael and Deidre Peterson were married in 1979. Their three children were ages 12, 11, and 9 when judgment was entered. During the marriage the family resided on a farm near Finley. Michael conducted a farming operation with his brother, and Deidre worked as a registered nurse at a hospital in Mayville.

In February 1992, Michael learned Deidre had an intimate relationship with another man. Michael was outraged and told Deidre he wanted a divorce. Deidre was served with a summons and complaint on March 11, 1992. The next day Michael took Deidre to an attorney he had retained in Finley and they executed a divorce stipulation settling property division, custody, and child support issues. Nine days later, on March 23, 1992, Michael appeared at a default hearing and on the following day the district court entered a divorce decree, based on the parties' stipulation.

Almost one year later, Deidre retained an attorney and filed a motion under Rule 60(b), N.D.R.Civ.P., to vacate the original divorce decree. The trial court granted the motion, vacating all parts of the judgment except for the decree of divorce. After a hearing, the court redetermined property division, custody, and child support. Judgment was entered on December 6, 1995, and Michael appealed.

Michael first asserts the trial court abused its discretion in vacating the original divorce decree. Rule 60(b), N.D.R.Civ.P., as a vehicle for seeking relief from a judgment, attempts to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done. Kuehl v. Lippert, 401 N.W.2d 523 (N.D.1987). In reviewing a trial court's grant of a motion to vacate a judgment we determine only whether the trial court abused its discretion. Soli v. Soli, 534 N.W.2d 21 (N.D.1995). The trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Crawford v. Crawford, 524 N.W.2d 833 (N.D.1994). A trial court acts in an arbitrary, unreasonable or unconscionable manner when its decision is not the product of a rational mental process by which the facts and law relied on are stated and considered together for the purpose of achieving a reasoned and reasonable determination. Clooten v. Clooten, 520 N.W.2d 843, 845 (N.D.1994). If the judgment sought to be set aside is entered pursuant to a stipulation of the parties, the party challenging the judgment under Rule 60(b), N.D.R.Civ.P., has the additional burden of showing that under the law of contracts there is justification for setting the contract aside. Soli, 534 N.W.2d at 23.

At the hearing on the motion the trial court ruled from the bench:

"[T]he defendant was under duress. Things just happened too fast in this case. Sue for divorce one day, settle a case the next day, one lawyer involved.... [S]he was mislead (sic) and imposed upon and entered into this agreement under duress....

"So we're going to reopen it. The judgment of the Court is vacated."

The court had considerable evidence before it supporting its conclusion that Deidre stipulated to the terms of the divorce because she was misled and under extreme duress and that the stipulation was not, therefore, voluntary or consensual. Deidre testified by affidavit:

"I was in a state of extreme emotional distress and believed I had no other options than to agree with the proposal my husband made. I feared for my physical well-being, and also feared for the well-being of our children unless I agreed to the stipulation.

* * * * * *

"I was served with a summons and complaint for divorce on March 11, 1992.

* * * * * *

"On March 12, the day after I received the complaint, we signed the stipulation in this case at his lawyer's office. It was happening so fast I couldn't think. Mike told me he would not try to take the children if I agreed not to take any part of his farming operation.

* * * * * *

"I knew that Mike had seen a doctor in Cooperstown and was taking an anti-depressant. However, every time he came near me he became wild and went into a rage.

"On March 18 I went to a parent-teacher conference....

"That same day, I was returning home to meet our youngest daughter Danielle.... She jumped out of her car and ran toward me. She grabbed me and was crying. She said she had been afraid I was dead because Mike had told her that he was going to kill me and Ron....

"I continued to be extremely fearful. I thought that if I did not go through with the divorce and the agreement that Mike had worked out, that Mike would physically harm me.

"Mike's lawyer told me that the hearing on the divorce would be on March 23, 1992. I called the courthouse on March 20 thinking I might be able to stop the hearing. I also tried to contact a lawyer on the 20th but the lawyer was not able to meet with me prior to the hearing on the 23rd. Mike told me that I better not try to stop anything.

* * * * * *

"I have learned that Mike has significant farm assets, both in terms of real property in which he has an interest and farm equipment which he owns....

"I have found that Mike was less than candid regarding his income. He said that his income has averaged $40,000 over the last seven years....

"In 1991, the net income from the farm operation was over $87,000 and Mike had almost $40,000 depreciation which should have been considered in calculating child support. The 1990 tax return shows farm income of $125,000 and depreciation of over $27,000."

Under Rule 60(b)(iii), N.D.R.Civ.P., the court can set aside a judgment for fraud, misrepresentation, or other misconduct of an adverse party. Also, under Rule 60(b)(vi), N.D.R.Civ.P., the court can set aside a judgment for any other reason justifying such relief. This rule "provides the ultimate safety valve to avoid enforcement by vacating a judgment to 'accomplish justice.' " Crawford, 524 N.W.2d at 836.

The facts of this case support vacating the original divorce decree under both of these provisions of Rule 60(b), N.D.R.Civ.P. The stipulation was signed within 24 hours of service of the divorce papers upon Deidre, with only Michael's attorney to advise the parties. Deidre signed under threats of losing her children and to her own life. The default decree was entered within nine days, after Deidre unsuccessfully attempted to secure an attorney and postpone the hearing. As a matter of public policy, a stipulation in a divorce proceeding which occurs this rapidly with the use of one attorney and under serious threats of harm to one of the parties should be viewed with great skepticism. Furthermore, there is significant evidence that Michael did not honestly reveal his assets or income. Section 9-09-02, N.D.C.C, authorizes rescission of a contract by a party where consent was obtained "through duress, menace, fraud, or undue influence." The trial court found duress and misrepresentation by Michael as factors resulting in Deidre's acquiescence to the divorce stipulation. Under the facts of this case, we conclude it was not an abuse of discretion for the trial court to vacate the terms of the original divorce decree regarding property division, custody, and child support.

Michael next asserts the trial court's property division is clearly erroneous. The trial court's division of marital property is a finding of fact, which we will not overturn unless it is clearly erroneous. Fenske v. Fenske, 542 N.W.2d 98 (N.D.1996). The trial court's finding is clearly erroneous only if we are left with a definite and firm conviction that a mistake has been made. Buzick v. Buzick, 542 N.W.2d 756 (N.D.1996).

In its written findings the trial court made the following determination regarding property division:

"Given the distribution of the property to date, a cash payment is required in...