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Sharon L. Bird, petitioner, Respondent, vs. Gary J. Bird, Appellant. C3-96-1397, Court of Appeals Unpublished, February 18, 1997.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. sec. 480A.08, subd. 3 (1996). STATE OF MINNESOTA IN COURT OF APPEALS C3-96-1397 Sharon L. Bird, petitioner Respondent, vs. Gary J. Bird, Appellant. Filed February 18, 1997 Affirmed Randall, Judge LeSueur County District Court File No. F3-94-627 Paul H. Tanis, Jr. Michelle M. Zehnder, McKenzie & Gustafson, 424 South Minnesota Avenue, St. Peter, MN 56082 (for respondent). Gary J. Bird, 14 Lakewood Knoll Road East, Cleveland, MN 56017 (Pro Se). Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Davies, Judge. UNPUBLISHEDOPINION RANDALL, Judge Appellant challenges the trial court's order amending the Judgment and Decree dissolving the parties' marriage, arguing that the trial court was without jurisdiction to do so, that respondent and her attorney committed fraud on the trial court, that there was insufficient evidence, and that the trial court abused its discretion. We affirm. FACTS The parties were married on September 3, 1974. They were divorced on April 10, 1995, and the Judgment and Decree was based on a Marital Termination Agreement (MTA) signed by the parties on March 30 and 31, 1995. The MTA provided for the distribution of the parties' real estate, personal property, retirement accounts, and a $11,000 cash payment from appellant to respondent. Pursuant to voluntary discovery regarding the parties' assets and liabilities, respondent asked for and received from appellant documentation of his retirement and deferred compensation assets from his employer, the State of Minnesota
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Sharon L. Bird, petitioner, Respondent, vs. Gary J. Bird, Appellant. C3-96-1397, Court of Appeals Unpublished, February 18, 1997.

Security Hospital in St. Peter. Appellant submitted a document from the Minnesota State Retirement System, showing an account balance of $21,223.07 as of June 30, 1993. This figure was incorporated into the MTA and Judgment and Decree. Respondent, after speaking with other employees at the security hospital, became suspicious that appellant had misstated the amount of his retirement account with the state. She contacted her attorney, who then asked his paralegal to contact the administrator of appellant's retirement account, the Minnesota State Retirement System (MSRS) to check on the true amount of appellant's retirement benefits. On November 14, 1995, the paralegal received a letter by facsimile from MSRS addressed to Gary Bird, dated April 3, 1995. This letter stated that appellant's retirement account had a value of $40,269 and that the interest on the account is compounded annually at a rate of 6% and continues until appellant applies for a refund. During the motion hearing on February 22, 1996, appellant argued that he did not know of the accrued interest and the nondisclosure was not fraudulent, but rather a mistake. Appellant argued that the failure to include the accrued interest on his retirement account did not render the property division so unjust so as to justify opening the judgment. The trial court found that appellant made "material misrepresentations with respect to the marital holdings in his pension, profit sharing, retirement and deferred compensation accounts." According to the trial court, appellant understated the value of these accounts by approximately $16,269 and therefore, this amount was not taken into account during the settlement discussions between the parties, the discussions surrounding the MTA, and the court's Judgment and Decree. In its accompanying memorandum, the trial court noted that "[appellant's] actions are at best mistake or neglect, and most likely misrepresentations or even possibly fraud." Noting its desire to adhere to the parties' original intent to achieve a cash settlement, rather than awarding respondent future benefits, the trial court awarded respondent $7,483.74, plus interest commencing from April 10, 1995, until the amount was paid in full. The trial court divided the undisclosed amount of $16,269 evenly and then subtracted $650.76 from respondent's share, or one-half the amount appellant would incur if he took out a two-year loan at eight percent interest to make the cash payment. The trial court concluded that the failure to structure the award in this way would result in an inequitable property distribution in light of the parties' attempt to divide the marital property equally. On April 2, 1996, appellant filed a pro se motion to amend the trial court's findings on the issue of fraud. Appellant argued that respondent and her attorney intentionally tampered with the April 3, 1995, letter from the MSRS in an effort to cover up deceitful conduct. Appellant also argued newly discovered evidence. The trial court denied appellant's motion and awarded respondent $1,000 in attorney fees. DECISION I. Appellant argued that the trial court did not have the authority to reopen and modify the division of his retirement benefits as part of the final Judgment and Decree. We are not persuaded. Minn. Stat.

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