author: AMUNDSON, Judge

text:
    In re the Matter of Leon James PRESTON.
    No. C5-00-1715.
    Court of Appeals of Minnesota.
    June 12, 2001.

      Anthony F. Nerud, Arlington, MN, (for appellant).
    Mike Hatch, Attorney General, Gail A. Feiehtinger, Assistant Attorney General, St. Paul, MN, (for respondent).
    Considered and decided by AMUNDSON, Presiding Judge, KLAPHAKE, Judge, and WILLIS, Judge.
   OPINION

AMUNDSON, Judge

The district court ordered the indeterminate commitment of appellant as both a sexual psychopathic personality and a sexually dangerous person. Appellant argues that there is insufficient evidence to establish that he has an utter lack of power to control his sexual impulses or that he has exhibited a habitual course of misconduct in sexual matters so as to support commitment as a sexual psychopath. Appellant also argues that there is insufficient evidence to establish that he is likely to engage in harmful sexual conduct, as required for commitment as a sexually dangerous person. Lastly, Appellant argues that the court abused its discretion in imposing time constraints on the examination of expert witnesses.

FACTS

This case concerns the indeterminate commitment of Leon James Preston as a sexual psychopathic personality and a sexually dangerous person pursuant to Minn. Stat. § 253B.02, subds. 18b, 18c (2000). Preston, a 25-year-old man diagnosed with pedophilia and antisocial personality disorder among other disorders, sexually assaulted eight juvenile females when he was between the ages of 14 and 17.

In 1990, when Preston was 14, he was playing a game with his eight-year-old female cousin at her house. After she went into her bedroom to change out of her swimsuit, he followed her, removed her shirt and pants, placed her on the bed, and touched her between the legs. After being informed of the incident, her family and Preston’s family responded to this incident privately and sought counseling for the girl.

The following spring, in 1991, Preston fondled the vaginal area of a nine-year old girl on approximately 30 to 45 separate occasions while the two were riding on a school bus.

That fall, Preston, then 15, twice sexually assaulted a four-year-old-girl in a park. He first spotted the girl near a concession stand, and then approached and offered her candy, which she refused. According to Preston, after he set the candy bar down by her, she began to trust him and picked up the candy. To put her further at ease, he began to talk to her. At that point, he began fondling her, initially on top of her swimsuit, putting his arm around her so she could not get away, all the while continuing to give her candy. The girl struggled during the assault and wanted to escape, but Preston held her on his lap. He then put his hand under her swimsuit and attempted to fondle her vagina. Finding this too difficult, he lifted the girl up, removed her swimsuit, and fondled her breasts and vaginal area. He then put the swimsuit back on and continued to fondle her. At a later date, Preston returned to that park, again gave the same girl some candy, and fondled her on top of and underneath her clothing.

During February 1992, when Preston was 16, he assaulted another eight-year-old girl at a park on at least 15 separate occasions. Preston would follow her into a bathroom and fondle her vagina and breasts both on top of and underneath her clothing, asking her if she “liked it.” He also fondled her in the same manner approximately 35 times on a school bus. Preston used planning and stalking behaviors with this victim.

In April 1992, Preston assaulted J.M.R., his five-year-old half-sister, during his confirmation party. While she was playing hide and seek with some other children, Preston hid in his grandparents’ garage. When she entered the garage, Preston picked her up, placed her on a lawnmower, and began to fondle her breasts and vagina, forcing her to stay there. Preston then removed her tights, performed cunnilingus on her, and digitally penetrated her vagina. In August 1992, Preston again assaulted her at a cousin’s house. Preston suggested they play hide and seek, and when she went into the gai-age, Preston followed her, touched her breasts under her shirt and pulled down her pants and touched her between her legs.

Between March and June of 1992, Preston repeatedly sexually assaulted L.S., a nine-year-old neighborhood girl, in a park, on the school bus, and at her house. The first assault occurred while Preston was baby-sitting her and her siblings at the park. When L.S. went into the bathroom, he followed her, and, once inside, fondled her breasts and vagina both on top of and underneath her clothing, removed her clothes, and masturbated in front of her. L.S. was visibly terrified. Later that day, he told L.S. to go to her room and remove her clothes. After she complied, he fondled her, masturbated in front of her, and performed cunnilingus on her, asking her if she liked it. Throughout the spring of 1992, he also touched her on top of her clothing while they rode a school bus together. These school-bus incidents occurred every other day, totaling approximately 60 incidents; the assaults only stopped when L.S. moved and began riding a different bus to school. Even then, Preston would drive by her residence. During these assaults, Preston prevented L.S. from leaving and was indifferent about whether he was hurting her.

On September 14, 1992, a juvenile petition was submitted for the offenses Preston had committed against J.M.R. He attempted outpatient sex offender counseling through the Leo Hoffman Center. From May 1993 through July 1993, while in outpatient treatment, he fondled A.D., the five-year-old daughter of his father’s girlfriend, on at least seven different occasions — performing cunnilingus on her during at least four of these assaults. In one particular incident, Preston was watching a pornographic movie when A.D. entered the room. A.D. started watching the movie with him and asked what a penis was. Preston then removed his pants, showed her his penis, and had her fondle him while he ejaculated. He then performed cunnilingus on her. In another incident, after watching a pornographic movie, Preston took A.D. outside with him and placed her on his lap while he mowed the lawn; he had an erection and was fondling her breasts. After parking the mower in the garage, he removed her clothing and masturbated in front of her, after which he then performed cunnilingus on her before returning to the house to watch more pornographic movies. While he was watching the movies, A.D. walked into the room, and Preston again fondled her, and performed cunnilingus on her, made her fondle him and masturbated in front of her. During many other instances, Preston rubbed his penis between her legs and unsuccessfully tried to persuade A.D. to perform fellatio on him.

On July 15,1993, Preston was adjudicated delinquent on the offense of criminal sexual conduct in the fifth degree for the August 1992 offense against J.M.R.

Earlier that year, Preston had occasionally gone to visit the home of one of his father’s friends whose family was helping him deal with family problems. Over time, the family observed Preston talking sexually to E.D., their 12-year-old daughter; Preston was banned from the house. However, after failing and being discharged from the Hoffman Center outpatient program (but before being admitted to the in-patient program), Preston went to E.D.’s house to help fix a lawn mower. When E.D.’s father left to get a part for the mower, Preston went in the house and began watching television with E.D. and her brother. The brother started tickling his sister and Preston joined in. When the brother left the room, Preston talked to E.D. about sensitive parts of the human body and convinced E.D. to remove her shirt. He then fondled her breasts. He then convinced her to remove her pants. He fondled her vagina, performed cunnilingus on her, and masturbated in front of her.

Preston, then 17, next attempted in-patient treatment at the Hoffman Center but on two separate occasions had sexual contact with a 14-year-old male resident — in violation of the program rules. Both times, Preston successfully convinced the reluctant boy to perform fellatio on Mm. Preston was removed from the Hoffman Center program.

After Preston’s commitment to the commissioner of corrections, he again attempted and failed sex-offender counseling at Minnesota Correctional Facility at Sauk Centre. He was discharged from supervision by the commissioner of corrections on October 31, 1994. In August 1994, Preston was charged with first-degree criminal sexual conduct for the April offense against his J.M.R., first-degree criminal sexual conduct for the offenses against A.D., and second-degree criminal sexual conduct for the offenses against L .S. From August 8, 1994 until he was released on bail on March 3, 1995, Preston was incarcerated in several county jails. While out on bail, he resided with his father near Jordan, Minnesota and was employed at both Valleyfair amusement park and a Hardee’s restaurant. During this time, no allegations were raised regarding any improper sexual activity. On January 17, 1996, Preston was convicted of second-degree criminal sexual conduct. He was sentenced and incarcerated at Minnesota Correctional Facility — St. Cloud.

On September 27, 1999, a verified petition was filed for judicial commitment as a sexual psychopathic personality and a sexually dangerous person, pursuant to Minn. Stat. § 253B.02, subds. 18b, 18c. At that time, Preston was serving a sentence at the Minnesota Correctional Facility at Lino Lakes. His target supervised release date was December 23, 1999. The district court appointed psychologists James Als-durf, Ph.D., and John Austin, Ph.D., as court appointed examiners.

At the trial on the commitment petition, both expert psychologists testified that Preston had exhibited a habitual course of sexual misconduct. Dr. Alsdurf testified that Preston met all of the criteria for commitment under both the sexual psychopathic personality and sexually dangerous person statutes. Dr. Austin agreed as to the sexually dangerous person statute, but could not make a conclusion as to the sexual psychopathic personality statute because the sexual psychopathic personality statute requirement of an “utter lack of power to control” one’s sexual impulses involves a legal definition and not a psychological one. However, Dr. Austin did testify that many of Preston’s offenses were “impulsive” in that they were not planned out and were simply responses to an unknown set of stimuli. Dr. Austin further testified that Preston lacks the ability to choose when to exercise control over his sexual impulses. Dr. Alsdurf testified that Preston believed his offenses to be habitual.

Dr. Austin referred to Preston as a “manipulative pedophile” who was able to repeatedly assault some victims after gaining their confidence. This behavior, according to Dr. Alsdurf, was substantially likely to result in serious emotional harm to the victims. Both psychologists documented the actual emotional and psychological damage to one of the victims.

Both psychologists also testified that the results of several psychological tests showed Preston to be highly impulsive, self-centered, and anti-social — indicating that he was a psychopath. Both also noted that Preston did not seem to recognize that he has a problem and did not believe that sex offender treatment was necessary or would be beneficial. Preston indicated to them that he thought that he could design a program for dealing with his issues. He suggested that his treatment might consist of his joining a program designed for “sex addicts.” The psychologists described this plan as vague, made-quate, insufficient, unrealistic, and “strikingly shallow.”

The district court issued its order for initial commitment, committing Preston to the Minnesota Sex Offender Program at St. Peter and at Moose Lake as both a sexually dangerous person and a sexual psychopathic personality. Following a review hearing on May 9, 2000, the district court made Preston’s commitment indeterminate. Preston appeals both the initial commitment order and the indeterminate commitment order.

ISSUES

I. Does the sexual psychopathic personality statute permit the indefinite commitment of individuals with an extensive history of sexual assaults against children involving both coercion and physical restraint?

II. Did the district court err in finding that Preston was highly likely to engage in harmful sexual conduct?

III. Was Preston prejudiced by the imposition of time constraints with regard to the cross-examination of the court-appointed psychological examiners?

ANALYSIS

I.

To commit a person as a sexual psychopathic personality, the petitioner must prove, by clear and convincing evidence, that the person has “evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses.” Minn. Stat § 253B.02, subd. 18b (1998). The reach of the sexual psychopathic personality statute has been limited, however. In re Linehan, 518 N.W.2d 609, 613 (Minn.1994) (Linehan I). While excluding “mere sexual promiscuity,” and “other forms of sexual delinquency,” a psychopathic personality “is an identifiable and documentable violent sexually deviant condition or disorder.” In re Blodgett, 510 N.W.2d 910, 915 (Minn.1994) (footnotes omitted). Commitment pursuant to this statute requires there be (a) a habitual course of misconduct in sexual matters, (b) an utter lack of power to control sexual impulses so that (c) it is likely the person will attack or otherwise inflict injury, loss, pain, or other evil on the objects of their uncontrolled and uncontrollable desire. Linehan I, 518 N.W.2d at 613.

With regard to the district court’s conclusion that Preston has a sexual psychopathic personality, Preston does not deny engaging in a habitual course of misconduct in sexual matters. Instead, he limits his challenge to the district court’s findings that he has an utter lack of power to control his sexual impulses and that he is dangerous to other persons within the meaning of the sexual psychopathic personality statute.

Findings of fact must be affirmed if they are not clearly erroneous. See, e.g., In re Joelson, 385 N.W.2d 810, 811 (Minn.1986). Whether or not the record supports the trial court’s conclusions with regard to these elements is a question of law, which this court reviews de novo. Linehan I, 518 N.W.2d at 613.

Utter Lack of Power to Control

The Minnesota Supreme Court has limited the application of the psychopathic personality statute to include only those persons who are likely to attack or otherwise inflict injury on the objects of their uncontrollable desire as a result of this lack of control. State ex rel. Pearson v. Probate Court, 205 Minn. 545, 555, 287 N.W. 297, 302 (1939), aff'd, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744 (1940). But, “[i]f a person has the ability to control the sexual impulse, the standard for commitment is not met.” In re Pirkl, 531 N.W.2d 902, 907 (Minn.App.1995) (citations omitted), review denied (Minn. Aug. 30, 1995). Preston argues that the district court erred in finding an utter lack of power to control because evidence that he was able to plan his assaults, groom victims, and wait for an opportune time to offend suggests that he has exhibited some control over his impulses.

Preston overstates the importance of the evidence of grooming behavior. Though grooming and planning behavior can show the ability to control the sexual impulse, where the grooming behavior itself is uncontrollable, the impulse is likewise not controllable. See In re Bieganowski, 520 N.W.2d 525, 530 (Minn.App.1994) (grooming behavior did not preclude a finding of “utter lack of control” when grooming behavior itself was uncontrollable and offender failed to remove himself from situations that provided him the opportunity to re-offend), revieio denied (Minn. Oct. 27, 1994). Here, Dr. Austin, like the expert in Bieganowski, specifically referred to Preston’s offenses against girls “that he just happened upon” in the park as evidence of Preston’s impulsive reaction to a set of circumstances. Dr. Austin characterized Preston as having unpredictable sexual responses to certain external factors, and testified that some of his offenses were not planned out ahead of time. Likewise, Dr. Alsdurf specifically testified that Preston’s grooming did not indicate control over his impulses. Furthermore, even though many of Preston’s assaults appear to involve grooming behavior, it is equally clear that many did not.

Preston next argues that his ability to control his impulses is demonstrated by the dearth of evidence that he re-offended while released on bail even though, during this time, he was immersed in his “target” population of pre-pubescent females through his employment. But both experts expressly testified that the ten-month period that Preston was out on bail was insufficient to demonstrate that he could control his sexual impulses. Furthermore, both psychologists gave extensive testimony regarding the inadequacy of Preston’s self-evaluation. This court has held such inadequacies to be indicative of an offender’s lack of self-control. Irwin, 529 N.W.2d at 375. Accordingly, the district court’s finding with regard to Preston’s utter lack of power to control his sexual impulses is supported.

Dangerousness

Preston next argues that the petitioner failed to show that his particular pattern of sexual misconduct is so egregious that there is a sufficiently substantial likelihood of serious physical or mental harm being inflicted on the victims so as to meet the “dangerous to other persons” requirement for commitment as a psychopathic personality. See Minn.Stat. § 253B.02, subd. 18b (1998); In re Rickmyer, 519 N.W.2d 188, 190 (Minn.1994).

There are two intertwined sub-issues involved with the question of future dangerousness: whether Preston is likely to continue to engage in an uncontrollable pattern of behavior in the future, and whether the kind of behavior that Preston has thus far exhibited warrants commitment under the sexual psychopathic personality statute. Dangerousness as it relates to the first issue is predicated on the utter lack of ability to control sexual impulses. Linehan I, 518 N.W.2d at 614. Where, as here, utter uncontrollability of sexual impulses is found, the district court, in predicting serious danger to the public, should consider six factors: (1) the offender’s relevant demographic characteristics; (2) the offender’s history of violent behavior (with special attention to recency, severity, and frequency of violent acts); (3) the base rate statistics for violent behavior among individuals of this offender’s background; (4) the sources of stress in the environment; (5) the similarity of the present or future context to those contexts in which the person has used violence in the past; and (6) the person’s record with respect to sex therapy programs. Id.

Although the supreme court, in Linehan I, did not require courts to find that all these factors be met, in Schweninger, this court noted that four of these factors pertain to the violence exhibited by the person in the past as predictors of dangerousness. 520 N.W.2d at 450. Preston characterizes his crimes as “particularly non-violent” and therefore similar to cases in which this court and the supreme court have found the behavior in question to be insufficiently violent to come within the ambit of the sexual psychopathic personality statute. See, e.g., Rickmyer, 519 N.W.2d at 190; In re Robb, 622 N.W.2d 564, 572 (Minn.App.2001), review denied (Minn. Apr. 17, 2001); Schweninger, 520 N.W.2d at 450-51.

In Schweninger, we held that,

absent a showing of violence, persons in the class of repetitive pedophiles cannot be committed as psychopathic personalities, unless shown to have committed violent acts in the past, and shown to have such an utter lack of power to control their behavior that they are likely to do so in the future.

520 N.W.2d at 450. In so holding, the Schweninger majority relied on language in Rickmyer that noted that, in psychopathic personality cases, there is ordinarily “a pattern of sexual assaults creating the danger of infliction of serious physical harm.” Schweninger, 520 N.W.2d at 449 (quoting Rickmyer, 519 N.W.2d at 188). The Schweninger court then concluded that the offender’s behavior did not exhibit the requisite violence because the victims were coerced into participating in the acts. Id. at 450.

Although Preston, like the offender in Schweninger, sometimes used coercion to commit his offenses, unlike in Schweninger, there was evidence in the record that Preston also used physical force to restrain his victims. Because Preston did not rely purely on coercion, but also this physical restraint, the Schweninger “coercive pedophile” analysis does not apply here.

The collateral physical force used by Preston in restraining his victims was sufficient, by itself, to support a finding that Preston’s pattern of sexual misconduct was violent. Preston himself admitted that he used “force” with all of his victims, that they tried to get away from him, and that he prevented them from leaving despite their evident fear. Dr. Aisdurf specifically noted that the physical force used by Preston was proportionate to what was needed to sexually offend children.

We recognize that a recent panel of this court has held that limited restraint of a victim that does not cause physical injury itself, is not the kind of violence contemplated by the sexual-psychopathic-personality statute. Robb, 622 N.W.2d at 572. We disagree. A key conclusion of the Robb panel was that the behavior in that case was similar to that in Rickmyer. Id. Notwithstanding that conclusion, we believe the character of Preston’s behavior to be dramatically different from that in Rickmyer. Whereas Rickmyer had committed unauthorized “touchings and spankings,” Preston has engaged in over 100 incidences of impermissible sexual contact with eight different victims — some as young as four-years old. These contacts involved oral sexual contact and vaginal penetration. He victimized some young girls as many as sixty different times. In Rickmyer, one psychologist and one psychotherapist testified that they did not believe that Rickmyer was a pedophile. 519 N.W.2d at 189. In contrast, here, both Drs. Austin and Aisdurf characterize Preston as a pedophile. Although neither Preston nor Rickmyer caused physical injury collateral to their assaults themselves, this does not mean that Preston’s assaults were non-violent within the meaning of the sexual psychopathic personality statute. Preston only engaged in the amount of force necessary to accomplish his will on very young victims, but this amount of force was violence nonetheless. It would be absurd to hold that because less force was needed to subdue an extremely young victim, the assault was non-violent.

Furthermore, even if Preston had not used force, the character and nature of his sexual acts alone were sufficient for indeterminate commitment. This is not a situation where Preston engaged in “touchings and spankings;” the sexual acts themselves were extremely violent. The supreme court has not suggested that the question is whether the violence was greater than that involved in “other sexual assaults that involve some physical force,” see Robb, 622 N.W.2d at 572 (comparing the degree of violence involved to “other sexual assaults”), but whether it was violent to the point of creating “a substantial likelihood of serious physical or mental harm.” Rickmyer, 519 N.W.2d at 190. Preston’s behavior involved impermissible sexual contact (including oral sexual contact and vaginal penetration) with victims as young as four-years old, and he victimized many of the children repeatedly. The court received expert testimony that the character of Preston’s acts was such that psychological harm would be a likely consequence for his victims. There can be no question that this pattern of behavior is so egregious so as to create the “substantial likelihood of physical or mental harm.” Rickmyer, 519 N.W.2d at 190.

II.

Preston next challenges the district court’s conclusion that he is a sexually dangerous person. A sexually dangerous person means a person who (1) has engaged in a course of harmful sexual conduct; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct. Minn.Stat. 253B.02, subd. 18c(a) (2000). Preston challenges the court’s determination that he is highly likely to engage in acts of harmful sexual contact, a finding that must be proven by clear and convincing evidence. In re Linehan, 594 N.W.2d 867 (Minn.1999) (Linehan IV ), cert. denied, 528 U.S. 1049, 120 S.Ct. 587, 145 L.Ed.2d 488 (1999).

The sexually dangerous person statute allows civil commitment of persons

who have engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction does not allow them to adequately control their sexual impulses, making it highly likely that they will engage in harmful sexual acts in the future.

Id. at 876. Under this statute, the inability to control an offender’s sexual impulses need not be proven. Minn.Stat. § 253B.02, subd 18c(b). Rather, the statute

requires a finding of future dangerousness, and then links that finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible, for the person to control his dangerous behavior.

Linehan IV, 594 N.W.2d at 875 (citations omitted).

The district court made express findings regarding Preston’s mental disorders that were substantiated by the psychologists’ diagnoses. The district court also found that Preston is highly likely to engage in acts of harmful sexual conduct in the future. The court’s findings in this regard refer both to his personal attributes and to the demography of his victim pool. The court also noted that various psychological tests administered to Preston indicated him to be an extremely high risk for re-offending. Preston’s past history also indicates his propensity to re-offend. In fact, one of his assaults occurred during outpatient treatment. Finally, Preston’s attitude with regard to his problem indicates that he is highly likely to re-offend. For example, his statement that he would “try” to avoid baby-sitting and his decision to seek employment at an amusement park both illustrate the extent to which he is unable to assess the gravity of his problem. Both doctors testified that such unrealistic assessments indicate an individual who is highly likely to relapse. The court’s finding with regard to the likelihood of re-offending per the sexually dangerous person law is thoroughly supported in the record.

III.

Preston argues that the district court erred by arbitrarily and unreasonably imposing “significant and burdensome” time constraints on the cross-examination of the court-appointed psychologists. The record shows that, at certain points during the trial, the court did, in fact, impose time restraints in order to avoid having to have an expert witness return at a later date. But the record also shows that Preston did not object to the imposition of these time restraints. In fact, Preston’s attorney, speaking on behalf of both attorneys, proposed several solutions to the time issue and prefaced his suggestions by stating,

I don’t want either of us to have a basis for appeal based on limitations of time. I think there are several options the court can consider.

After discussions of different alternatives and some further off-the-record discussions, this issue was never again raised. Matters not argued and considered in the court below will not be considered here. Roby v. State, 547 N.W.2d 354, 357 (Minn.1996). Regardless, the mode, manner, and method of receiving testimony rest almost wholly in the discretion of the trial court. Manion v. Tweedy, 257 Minn. 59, 67-68, 100 N.W.2d 124, 130 (1959). Preston has failed to show an abuse of that discretion.

DECISION

Because Preston has exhibited a pattern of perpetrating violent sexual assaults and otherwise meets the definitions of a sexually psychopathic personality and sexually dangerous person, indeterminate commitment is proper.

Affirmed.

      . We consider several factors in determining whether the person exhibits a predatory sexual impulse and the lack of power to control it. Blodgett, 510 N.W.2d at 915. These include the nature and frequency of sexual assaults, the degree of violence involved, the relationship or lack thereof between the offender and victims, the offenders attitude and mood, the offenders medical and family history, and the results of psychological and psychiatric testing and evaluation. Id. Another relevant factor may be whether the person feels that he or she has a problem. In re Invin, 529 N.W.2d 366, 375 (Minn.App.1995), review denied (Minn. May 16, 1995). It is not disputed that most of these factors support a finding of Prestons inability to control his predatory sexual impulses.

        . See, e.g., In re Schweninger, 520 N.W.2d 446, 450 (Minn.App.1994) (evidence that nonviolent sexual assaults were planned, calculated and involved seductions, payments, coercion, and grooming behavior, was insufficient to support a finding of "utter lack of control”), review denied (Minn. Oct. 27, (1994))

      . The fact that Preston chose employment at Valleyfair is especially troubling, and certainly buttresses the psychologists’ claims that Preston is more likely to re-offend because he does not appreciate his problem.

      . Although the supreme court in Rickmyer indicated that physical harm would ordinarily be the result of the "violent sexually deviant condition,” Rickmyer, 519 N.W.2d at 190 (citation omitted), we note that physical harm, or even the risk of physical harm, is not a requirement for commitment under the sexual psychopathic personality statute. As the court in Rickmyer noted, the requirements for commitment may be met with misconduct that creates the substantial likelihood of mental harm as well. Id.


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge.

license: Public Domain

text:
    In re the MARRIAGE OF Bradley Alan FITZGERALD, Petitioner, Respondent, v. Laurie Anne FITZGERALD, Appellant.
    No. C2-00-1557.
    Court of Appeals of Minnesota.
    June 19, 2001.

      Douglas G. Sauter, Jason P. Rietz, Douglas G. Sauter & Associates, P.A., Coon Rapids, MN, for appellant.
    A. Larry Katz, Susan A. Daudelin, Katz & Manka, Ltd., Minneapolis, MN, for respondent.
    Considered and decided by LANSING, Presiding Judge, G. BARRY ANDERSON, Judge and FOLEY, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

G. BARRY ANDERSON, Judge.

Appellant challenges the district court’s dissolution judgment, arguing that the district court erred by (1) miscalculating respondent’s income, thereby understating his child-care contribution; (2) miscalculating appellant’s nonmarital share of her retirement plans; and by (3) concluding that appellant had not proven a nonmarital interest in the homestead and her income tax refunds. We hold that the district court’s findings concerning the property were not clearly erroneous and that they sustain the property division. But because the district court miscalculated respondent’s child-care obligation, we affirm the judgment as modified.

FACTS

Appellant Laurie Anne Fitzgerald and respondent Bradley Alan Fitzgerald were married April 1, 1989. The parties have two children, a daughter, age ten, and a son, age three. Custody is not disputed. Appellant also has an emancipated daughter from her first marriage. Both appellant and respondent reside in Princeton, Minnesota. Respondent is employed as a territory representative for a corporate automobile leasing company and, based on 1999 income, earns approximately $123,500 per year. Appellant is an air traffic controller employed by Princeton Automated Flight Service; she earns approximately $61,478 per year.

The district court calculated respondent’s net income and, in doing so, deducted expenses other than those listed within Minn.Stat. § 518.551, subd. 5(b) (2000). By judgment dated August 8, 2000, the district court ordered respondent to pay monthly child support of $1,780 and monthly child-care expenses of $146.64. The district court also equally divided the parties’ property; each party received property worth $112,549.50. The property included the parties’ homestead, funds from appellant’s employer-sponsored retirement plans, and income tax refunds appellant received for tax years 1998 and 1999. Neither party moved for amended findings of fact, amended conclusions of law, or a new trial.

ISSUES
I. Did the district court erf by miscalculating respondent’s net income, thereby understating his child-care obligation?
II. Did the district court err by determining the homestead and income tax refunds to be marital property, and by miscalculating appellant’s nonmarital interests in her employer-sponsored retirement plans?

ANALYSIS

On appeal from judgment where, as here, there has been no motion for new trial, the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and judgment. Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn.App.1989).

I.

Appellant first argues that the district court clearly erred by finding respondent’s net monthly income to be $5,980, and further erred by using that net income as a basis for calculating respondent’s child-care contribution. The district court is required to allocate the costs of child care to each parent in proportion to each parent’s net income after the transfer of child support and spousal maintenance, unless the allocation would be substantially unfair to either parent. Minn.Stat. § 518.551, subd. 5(b)(2)(ii)(E) (2000). Minn.Stat. § 518.551, subd. 5(b) defines an obligor’s net income as total monthly income minus deductions. Id. Permitted deductions include: (1) federal and state income taxes; (2) social security and reasonable pension deductions; (3) union dues; (4) individual, group, or dependent health insurance coverage costs or actual medical expenses; and (5) a current child support or maintenance order. Id.

The district court determined respondent’s net monthly income to be $5,980. In arriving at that figure, the district court subtracted expenses from respondent’s gross monthly income, including (1) savings bonds ($240); (2) a charitable contribution ($24); (3) life insurance ($362.10); (4) company car expense ($1,200); (5) long-term disability insurance ($396.54); and (6) a discount employee stock purchase plan ($400).

We do not believe that these deductions fit within the statutory categories. The calculation of net income for support purposes allows a reasonable pension deduction. Minn.Stat. § 518.551, subd. 5(b). Case law has interpreted this statutory statement to allow deductions for reasonable, non-pension retirement contributions. See, e.g., State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 471 (Minn.App.1999) (401K deduction); Mueller v. Mueller, 419 N.W.2d 845, 847 (Minn.App.1988) (IRA deduction). There is no evidence that the savings bonds or stock purchase plan were part of a retirement plan. Life and long-term disability insurance are not health insurance coverage costs. The charitable donations and company car expense bear no relation to any of the statutory categories. Because these deducted expenses do not fit within the statutory categories, the district court erroneously understated both respondent’s net monthly income and his child-care contribution.

Child-care costs are computed by the formula established by Minn.Stat. § 518.551, subd. 5(b)(2)(ii)(E) (2000). Using annual child-care costs of $3,744, respondent’s net monthly income of $4,200 (after subtracting his $1,780 child-support obligation), and appellant’s net monthly income of $4,740, the district court calculated respondent’s child-care contribution to be $146.64. Had the district court not erroneously subtracted the nondeductible expenses from respondent’s gross income, his actual net income, after subtracting his child-support obligation, would have been $6,822. Using that figure, respondent’s proportion of the child-care costs is 59%. Thus, respondent’s monthly child-care contribution should be $184.08.

Respondent argues that his net monthly income, for the purpose of determining child-care costs, cannot exceed the $6,280 “income limit” set by Minn.Stat. § 518.551, subd. 5(b) and (k), which provide the method for determining child support. Respondent relies on the language of Minn.Stat. § 518.551, subd. 5(b)(2) (ii)(E), which provides that the child-care contribution shall be determined as a proportion of each parent’s net income “as determined under this subdivision * * *_» reject respondent’s argument.

While the determinations of a party’s child-support obligation and child-care contribution are both based on a party’s net monthly income, those obligations are calculated differently. A guideline child-support obligation is computed by applying the statutory guidelines to the net-income figure that is calculated by reducing a party’s total monthly income by the permitted deductions listed in the statute. The percentages listed in the guidelines, however, do not apply to amounts exceeding $6,280. Minn.Stat. § 518.551, subd. 5(b) and (k); see also Cost of Living Adjustment to Child Support Guidelines, No. C9-85-1134 (Minn. Mar. 12, 1998 & Apr. 19, 2000) (adjusting figure to account for cost-of-living changes). Thus, the limitation on child support is not a function of a limitation on the calculation of net monthly income, but of the amount of income subject to the guidelines. No such limitation is included in Minn.Stat. § 518.551, subd. 5(b)(2)(ii)(E), which simply states that the cost of child care is to based on the parents’ “net income, as determined under this subdivision * *

We also reject respondent’s argument that the district court erred in calculating appellant’s net income because the court permitted a retirement plan deduction. Respondent did not seek to obtain review of this issue by filing a notice for review and nothing in the record suggests that this deduction is unreasonable.

We therefore modify the judgment insofar as it sets the amount of respondent’s child-care contribution, and order that contribution to be $184.08 per month.

II.

Appellant next argues that the district court erred in its characterization and division of marital property. The question of whether property is marital or nonmari-tal is a question of law that this court may review de novo, but the underlying facts found by the district court will not be set aside unless they are clearly erroneous. Swick v. Swick, 467 N.W.2d 328, 330 (Minn.App.1991), review denied (Minn. May 16,1991).

A. Homestead

The district court found that the homestead was purchased on June 4, 1987, treated the homestead as marital property, and awarded it to appellant. The district court further found that, although appellant claimed a $10,000 nonmarital interest in the homestead, she presented neither testimony nor documentary evidence to support that contention. Appellant argues that the district court erred by failing to recognize her $10,000 nonmarital interest in the homestead because her pleadings state that interest and it is undisputed that the purchase took place two years before parties’ marriage.

Minnesota law provides that non-marital property includes real or personal property acquired before the marriage, as well as increases in the value of that property. Minn.Stat. § 518.54, subd. 5 (2000). Property is presumptively marital; a spouse claiming a nonmarital interest must prove that interest by a preponderance of the evidence. Id.; Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn.1997). Calculation of a nonmarital interest requires courts to consider the amount of the original non-marital contribution, the value of the property at the time of marriage, and the present value of the property. Schmitz v. Schmitz, 309 N.W.2d 748, 750 (Minn.1981).

Appellant, originally represented by counsel in this dissolution action at a July 1999 settlement conference, elected to proceed to trial without counsel. Appellant presented no testimony concerning her claim to a nonmarital interest in the homestead and no documentary evidence to support the $10,000 figure referenced in her pleadings. Nevertheless, she asks that this court, in equity, recognize her claim. But the record provides no basis for doing so. The evidence is insufficient to allow the district court or this court to calculate appellant’s claimed nonmarital interest because there is no evidence of her original contribution or the homestead’s value at the time of the parties’ marriage.

Although some accommodations may be made for pro se litigants, this court has repeatedly emphasized that pro se litigants are generally held to the same standards as attorneys and must comply with court rules. Heinsch v. Lot 27, Block 1 For’s Beach, 399 N.W.2d 107, 109 (Minn.App.1987); Ronay v. Ronay, 369 N.W.2d 12, 14 (Minn.App.1985). The record shows that the district court explained, and appellant understood, the necessity of presenting evidence at trial. We conclude that the distinct court did not err by finding that appellant failed to prove, by a preponderance of the evidence, a nonmari-tal interest in the homestead.

B. Retirement Plans

Appellant argues that the district court erred by failing to recognize her nonmarital interests in her pension plan and her Federal Thrift Savings Plan (TSP). Appellant contends that her interests are 28%, calculated by dividing the number of years she participated in the plans before marriage by the total number of years of participation before dissolution.

The TSP account, on October 31, 1999, had a value of $122,666. The district court awarded appellant a 28% nonmarital share of those funds ($34,346.48), plus an additional $53,912.02, which amounts to more than half of the $88,319.52 marital portion of the TSP account value. In addition, the district court provided that, pursuant to a qualified domestic relations order, appellant will, upon retirement, receive a non-marital share of her pension funds. That share is to be calculated by dividing the months of her participation in the plan before the marriage and after dissolution by the total number of months of service to her employer. We conclude that there is no error because the district court awarded appellant nonmarital interests in both retirement plans based on the formula she suggested.

C. Income Tax Refunds

Appellant decided to file separate income tax returns in 1998 and 1999, thereby increasing respondent’s income tax liability. Appellant argues that the district court erred by finding income tax refunds she received for those tax years to be marital property because the parties separated in June 1998. Appellant also contends that the refunds represent income withheld and now returned, and cites Kruschel v. Kruschel, 419 N.W.2d 119 (Minn.App.1988), for the proposition that a district court may not treat an item as both income and property.

The district court did not, however, treat appellant’s income tax refunds as income for either party, but instead treated the refunds as property. See Rundell v. Rundell, 423 N.W.2d 77, 81-82 (Minn.App.1988) (affirming conclusion that tax refunds acquired during the marriage were a marital asset); Crace v. Crace, 396 N.W.2d 877, 881 (Minn.App.1986) (same), review denied (Minn. Jan. 27,1987).

“All property acquired by either spouse subsequent to the marriage and before the valuation date is presumed to be marital property” regardless of whether title is held individually or in co-ownership. Minn.Stat. § 518.54, subd. 5. Property is nonmarital if acquired “after the valuation date * * Minn.Stat. § 518.54, subd. 5(d) (2000). Generally, the valuation date is to be the “day of the initially scheduled prehearing settlement conference.” Minn. Stat. § 518.58, subd. 1 (2000). In this case, it appears that the initial pre-hearing settlement conference took place on April 20, 1999. The district court, however, used different valuation dates for various assets, including December 31, 1999, and did so "without objection by appellant. Although an argument for an alternative valuation date is certainly sustainable, particularly with respect to the 1999 income tax refund, we conclude that the district court did not err by treating appellant’s 1998 and 1999 tax refunds as marital property and equitably dividing the assets.

DECISION

The district court did not err by (1) finding appellant had not proven her claim to a nonmarital share in the homestead; (2) awarding appellant nonmarital interests in her retirement plans in accordance with the formula she suggested; or by (3) concluding that appellant’s 1998 and 1999 income tax refunds are marital property. The district court miscalculated, however, respondent’s net income by deducting expenses which do not fit the categories listed in Minn.Stat. § 518.551, subd. 5(b) (2000), thereby understating his required child-care contribution. We therefore affirm the judgment as modified.

Affirmed as modified.

      . Minn.Stat. § 518.551, subd. 5(b)(2)(ii)(E) provides that:
      The court * * * shall allocate the costs to each parent in proportion to each parent’s net income, as determined under this subdivision, after the transfer of child support and spousal maintenance * * *. The cost of child care * * * is 75 percent of the actual cost paid for child care * * *.

        Id.

      . The record shows that the Federal Thrift Savings Plan is a retirement savings plan for federal government employees.

      . Although respondent argues that appellant has not proven a 28% nonmarital interest in the TSP funds, we decline to address that issue because respondent did not seek to obtain review of that issue by filing a notice for review pursuant to Minn. R. Civ.App. P. 106.


author: STONEBURNER, Judge

text:
    Kimberly UTHE, Respondent, v. Eileen BAKER, Appellant.
    No. C6-00-1934.
    Court of Appeals of Minnesota.
    June 26, 2001.

      Duane E. Arndt, Kathryn K. Smith, Arndt & Benton, P.A., Minneapolis, MN, for respondent.
    David Oskie, St. Paul, MN, for appellant.
    Considered and decided by CRIPPEN, Presiding Judge, KLAPHAJEE and STONEBURNER, Judges.
   OPINION

STONEBURNER, Judge

This is an appeal from the district court’s order denying appellant’s motion to dismiss respondent’s complaint for insufficient service of process. Because the district court incorrectly concluded that appellant’s actions in a separate lawsuit constituted waiver of the defense, or collaterally estopped appellant from asserting the defense in this lawsuit, we reverse.

FACTS

In October 1992, respondent Kimberly Uthe (Uthe), who was a minor, and her mother, Karen Uthe, were injured when appellant Eileen Baker’s car struck their car from behind while the Uthe vehicle was stopped at a red light. Uthe and her parents brought separate lawsuits against Baker. After unsuccessful attempts to serve Baker personally, Uthe and her parents attempted service of process under Minn.Stat. § 170.55 (1996) by filing with the Commissioner of Public Safety in June 1996. Notice was given to Baker’s insurer that service was made on Baker in each case through the Department of Public Safety because counsel for Uthe and her parents were unable to locate Baker. It is undisputed that service was insufficient.

Answers were submitted in both actions and each answer asserted that service of process was “inadequate and incomplete.” Uthe’s parents’ case went to trial, and the jury returned a verdict in their favor. At no time did Baker pursue the defense of insufficient service of process in the parents’ lawsuit.

Uthe did not file or prosecute her case for more than two and one-half years, and ignored Baker’s discovery requests and demands for information. The statute of limitations ran on Uthe’s claim during this period. Then, in 1999, Uthe filed this action in district court and Baker moved to dismiss based on insufficient service of process. Uthe’s counsel argued that Baker’s failure to pursue the defense in Uthe’s parents’ lawsuit constituted waiver and es-toppel. The district court found that Baker had not been served but applied the equitable principles of waiver and estoppel to deny Baker’s motion to dismiss. Baker appeals.

ISSUE

Is the defense of insufficient service of process, properly asserted by answer in companion lawsuits, waived or precluded in one lawsuit because of the failure to pursue the defense in a separate lawsuit arising out of the same accident?

ANALYSIS

“Before a * * * court may exercise personal jurisdiction over a defendant, the procedural requirement of service of process must be satisfied.” Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 409, 98 L.Ed.2d 415 (1987). Service of process is “the procedure by which a court having venue and jurisdiction of the subject matter of the suits asserts jurisdiction over the person of the party served.” Id. (quoting Mississippi Publ’g Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242, 245-46, 90 L.Ed. 185 (1946)). Where service is insufficient, a district court must dismiss an action where service of process is insufficient. Lewis v. Contracting Northwest, Inc., 413 N.W.2d 154, 156 (Minn.App.1987). The existence of personal jurisdiction is a question of law that we review de novo. Patterson v. Wu Family Corp., 608 N.W.2d 863, 866 (Minn.2000).

The parties do not challenge the district court’s conclusion that the service of process attempted under Minn.Stat. § 170.55 (1996) by filing with the Commissioner of Public Safety was insufficient. On appeal, Baker argues that the district court lacked jurisdiction to hear Uthe’s case because process was not properly served and Uthe argues that the district court had jurisdiction to hear the case because Baker did not pursue the defense in Uthe’s parents’ lawsuit. Uthe contends that Baker either waived her defense of insufficiency of process by implication through her conduct in Uthe’s parents’ lawsuit, or was estopped from asserting the defense in Uthe’s case because Baker did not pursue the defense in the parents’ case.

In Patterson, the Minnesota Supreme Court concluded that ineffective service of process may be waived by implication through the conduct of a defendant:

[O]nee a defendant affirmatively invokes the court’s power to determine the merits of all or part of a claim, the defendant cannot then deny the court’s jurisdiction over him based on defective service.

Id. at 869. The supreme court noted that “it is the failure to provide the court an opportunity to rule on the defense before affirmatively invoking the court’s jurisdiction on the merits of the claim that is determinative.” Id. at 868. But “a defendant is free to proceed on the merits of a case without fear of waiving the defense so long as the court has been provided an opportunity to determine the validity of the defense” and “participating in litigation through discovery and responding to an opposing party’s motions are not sufficient to waive the defense.” Id. at 869, review granted (July 25, 2000).

Here, Baker asserted her insuffieiency-of-process defense in a timely manner in her answer. See Minn. R. Civ. P. 12.02. And Baker also moved to dismiss Uthe’s ease for lack of personal jurisdiction before affirmatively invoking the court’s jurisdiction on the merits of the claim. At the time that she made her motion, Baker had only participated in discovery and had not proceeded on the merits of Uthe’s case. Thus, because Baker properly preserved her defense by asserting it in her answer and did not affirmatively invoke the court’s jurisdiction before asking the court to rule on the merits of that defense, Baker did not waive her right to assert it.

Uthe claims that Baker’s assertion of her defense was a “boilerplate” assertion of the lack of personal jurisdiction. The Minnesota Rules of Civil Procedure only require a party to “state in short and plain terms any defenses to each claim asserted.” Minn. R. Civ. P. 8.02. Baker’s assertion of the defense put Uthe on notice that service was insufficient.

We conclude that because Baker was not properly served and her participation in Uthe’s case did not invoke the jurisdiction of the court before she raised her insufficiency-of-process defense, Baker did not waive that defense. Because the district court lacked personal jurisdiction over Baker, it should have granted Baker’s motion to dismiss Uthe’s complaint.

Uthe also argues that the district court was within its power to estop Baker from asserting an insufficiency-of-process defense. Lacking personal jurisdiction over Baker, the district court could not employ its equitable power to estop Baker from asserting her insufficiency-of-process defense.

DECISION

The district court erred in failing to dismiss Uthe’s complaint for insufficient service of process and lack of jurisdiction over Baker.

Reversed.

      . Baker's motion to dismiss contained a request for summary judgment because the statute of limitations on Uthe's tort claim had run, and in the alternative, requested partial summary judgment on another claim and summary judgment on all other claims on the ground that the tort thresholds of Minnesota’s No-Fault Automobile Insurance Act had not been met.


author: HANSON, Judge.

text:
    In re the Matter of Kathleen M. DOERING, Petitioner, Respondent, v. Chester H. DOERING, Jr., Appellant.
    No. C0-01-224.
    Court of Appeals of Minnesota.
    June 26, 2001.

      James R. Forsythe, Streater & Murphy, P.A., Winona, for respondent.
    Jill I. Frieders, O’Brien & Wolf, L.L.P., Rochester, for appellant.
    Considered and decided by HALBROOKS,. Presiding Judge, and WILLIS, and HANSON, Judges.
   OPINION

HANSON, Judge.

Appellant made a motion under Minn. Stat. § 518.145, subd. 2(3) (2000) to reopen a dissolution judgment for fraud. He now argues that the district court erred in denying that motion (1) by applying the legal standard for fraud on the court, when the lesser standard of ordinary fraud was applicable, and (2) by denying the motion without an evidentiary hearing, even though he presented evidence that respondent did not fully disclose her assets and that she disposed of marital assets in contemplation of the dissolution. Respondent argues that appellant failed to timely file his appeal. We conclude that the appeal is timely and we reverse and remand for an evidentiary hearing on the question of fraud.

FACTS

Appellant Chester Doering and respondent Kathleen Doering were married in 1973 and resided on a farm near Caledonia, Minnesota. Appellant is self-employed as a farmer and respondent is employed as a nurse at the Gundersen-Lutheran Hospital in LaCrosse, Wisconsin. Throughout the marriage, respondent handled the family’s financial affairs.

Respondent had been considering a marriage dissolution for several years. In March 1998, the parties agreed that they would dissolve their marriage and visited with their long-time family attorney, Timothy Murphy, to assist in completing the dissolution. Murphy undertook to represent respondent, not appellant, but engaged in conversations with each party and provided some legal advice to appellant concerning aspects of the dissolution. Appellant was not separately represented and participated pro se.

After discussion with the parties, Murphy drew a Marital Termination Agreement which, among other things, awarded physical custody of the parties’ minor son to appellant; awarded child support to appellant in the amount of $800 per month; and, as property division, awarded to appellant the parties’ homestead, the farm property and the sum of $180,000 from respondent’s pension and 401K plan and awarded the remaining property to respondent.

The Marital Termination Agreement provided:

That each party expressly stipulates and agrees that each, has entered into this stipulation after full disclosure upon the advice of respective counsel and that each has relied upon the other party having fully disclosed all of his or her assets, both real and personal, all income, including any and all assets or income in the nature of third parties and under their control whether or not in their names.

The terms of this agreement were incorporated into the judgment of dissolution dated June 10, 1998. The dissolution judgment also provided: “Each party warrants to the other that there has been accurate, complete and current disclosure of all income, assets and liabilities.”

On November 25,1998, appellant made a motion (1) to reopen the dissolution judgment for fraud, based on an accompanying affidavit providing evidence of nondisclosure by respondent, and (2) to modify child support, based on a substantial change in circumstances. Appellant alleged that, subsequent to the entry of the judgment of dissolution, he learned that respondent had maintained a joint investment account at Merrill Lynch that, at one time,- had a balance of more than $26,000; that respondent had withdrawn substantial funds from this account in contemplation of, or during, the dissolution proceedings; and that respondent’s pension plan had a value at the time of dissolution in excess of $1,000,000, with a salary-deferment component that had a value in excess of $230,000.

On May 14, 1999, the district court denied appellant’s motion to reopen the judgment but granted appellant’s motion to compel discovery on the issue of fraud, reserving the final ruling on the motion to reopen the judgment and to modify child support until the parties completed the discovery authorized by the court.

After conducting discovery, appellant submitted a supplemental affidavit, reporting that the value of respondent’s retirement and salary-deferment account, at the time of the dissolution, was in excess of $1,000,000; that, while he was aware of the existence of the pension plan, the value of the plan and the existence of the salary-deferment component had not been disclosed to him; that respondent had maintained the Merrill Lynch investment account and other bank and investment accounts before or during the dissolution; and that neither the existence or value of these accounts had been disclosed to him.

On August 18, 2000, the district court denied appellant’s motion for an evidentia-ry hearing on his motion to reopen the judgment, but granted appellant’s motion for an evidentiary hearing on the issue of modification of child support. The court noted that appellant must make a prima facie showing before he is entitled to an evidentiary hearing on the issue of fraud. In doing so, the district court defined “fraud” as

an intentional course of material misrepresentation or nondisclosure, which has the result of misleading the court and the opposing party and making the property settlement unfair.

The court concluded that there was no evidence that respondent “intended to misrepresent the value of the marital assets or that she intentionally faded to disclose all the material assets.” The court further determined that appellant had failed to show that he had requested any information concerning these assets or that any information he had requested was not provided.

Appellant did not immediately appeal from this order. Subsequently, on January 12, 2001, the district court entered an order awarding appellant an increase in child support. The current appeal was taken within 60 days after the entry of that order, and the amended judgment pursuant to it, but was based on the August 18 order denying an evidentiary hearing on the motion to reopen the judgment.

ISSUES
1. Did appellant file a timely appeal?
2. Did the district court err by applying the legal standard for fraud on the court, instead of that for ordinary fraud?
3. Did the district court err by concluding appellant failed to present prima facie evidence of fraud?

ANALYSIS

I.

Respondent argues that this court should dismiss this appeal because it is untimely. She explains that she served notice of filing of the August 18 order, denying the motion to reopen the judgment, on September 22, 2000, and that the appeal was not filed until February 5, 2001, more than 60 days after service of notice of filing.

Appellants November 1998 motion to reopen the judgment was joined with his motion to modify respondents child-support obligation. In its August 18 order, the district court denied appellants motion to reopen the judgment, but granted appellants motion for an evidentiary hearing regarding modification of child support. Thus, the August 18 order did not finally determine all matters before the district court.

Ordinarily, an order denying a motion to vacate a judgment on grounds of fraud is immediately appealable. Minn. R. Civ. App. P. 103.03(e) (stating that one may immediately appeal an order which, in effect, determines the action and prevents a judgment from which an appeal might be taken.); Spicer v. Carefree Vacations, Inc., 370 N.W.2d 424, 426 (Minn.1985). But, because the August 18 order did not determine the support issue, it was not final and thus was not immediately appealable. Cf. City of Chaska v. Chaska Township, 271 Minn. 139, 142, 135 N.W.2d 195, 197 (1965) (stating final, when used to designate the effect of the district courts judgment or order, means that the matter is conclusively terminated so far as the court issuing the order is concerned). The situation is analogous to one where a partial summary judgment is granted, determining some but not all of the claims. Unless the order for partial summary judgment contains an express determination that there is no just reason for delay and directs entry of final judgment, the partial judgment is not immediately appealable. Minn. R. Civ. P. 54.02, Minn. R. Civ.App. P. 104.01, subd. 1; see also Olmscheid v. Paterson, 425 N.W.2d 312, 313 (Minn.App.1988) (stating partial judgment not immediately appeal-able unless entered pursuant to Minn. R. Civ. P. 54.02 and Minn. R. Civ. P. 104.01, subd. 1). The time to appeal from a partial judgment does not begin to run until the remaining claims are adjudicated. Minn. R. CivApp. P. 104.01, subd. 1. This appeal, therefore, was timely filed within 60 days after entry of the January 12 order and amended judgment, determining child support.

II.

Having concluded that appellant filed the appeal in a timely manner, we turn to the question of whether the district court erred by denying appellant’s motion to reopen without an evidentiary hearing. Appellant argues that the district court erred by concluding that appellant failed to make a prima facie showing of fraud sufficient to warrant an evidentiary hearing. In addressing that argument, we observe that the district court was presented with the convergence of two knotty questions; the standard for reopening a dissolution judgment for fraud and what constitutes “good cause” for an evidentiary hearing.

The fraud standard

In its order addressing appellant’s motion to reopen the judgment for fraud, the district court stated:

In the context of a marital dissolution, fraud is an intentional course of material misrepresentation or nondisclosure which has the result of misleading the court and the opposing party and making the property settlement unfair.

The trial court drew that standard from Kornberg v. Kornberg, 542 N.W.2d 379, 387-88 (Minn.1996), which in turn relied on Maranda v. Maranda, 449 N.W.2d 158, 164 (Minn.1989). Our review of these cases and the provisions of Minn.Stat. § 518.145, subd. 2, suggests that a less-strenuous standard of fraud is applicable here.

Maranda involved a motion to reopen a dissolution judgment for fraud made pursuant to Minn. R. Civ. P. 60.02, prior to the enactment of Minn.Stat. § 518.145, subd. 2. The motion was made more than one year after the entry of judgment. While Maranda discussed the motion in terms of rule 60.02, the supreme court noted that rule 60.02 was an improper vehicle for attempting to reopen dissolution judgments and stated that it would “treat the rule 60.02 motion as a motion to exercise the court’s inherent power to modify a final divorce decree based on an allegation of fraud on the court.” Maran-da, 449 N.W.2d at 164. Further, the supreme court noted that rule 60.02(3) allows relief from a judgment for ordinary fraud only if that relief is sought within one year after the judgment. While Maranda “[djeclined” to articulate the precise definition of “fraud on the court,” it indicated that there was a difference between ordinary fraud and fraud on the court, that the difference is one of degree, and that the standard for ordinary fraud is less strenuous then that for fraud on the court. Mar-anda, 449 N.W.2d at 165.

In Komberg, a motion to reopen a dissolution judgment was made within one year after the date of entry of judgment, was based in part on allegations of fraud, and was brought under MinnjStat. § 518.145, subd. 2(1), (3). However,, the wife in Komberg did not allege that her husband concealed or misrepresented the parties’ financial situation. Instead, she alleged that the husband had misled the court and counsel about his intention to take future actions after entry of the decree, to defeat income she expected to receive from corporate dividends. Although the supreme court referred to the Maranda standard of fraud on the court, it did so without discussing the significance of the fact that the Komberg motion was based on fraud and had been made within one year after the judgment. The court ultimately concluded that appellant had not shown fraud under any standard:

[The wife was not excluded] from access to information concerning finances, has made no allegations of concealment of funds, and has made no allegations of Harvey Kornberg’s misrepresentation of a specific material fact. She alleges only his covert and unexpressed “intention.”

542 N.W.2d at 388.

We do not understand Komberg to hold that a movant must satisfy the higher standard of fraud on the court to succeed on a motion to reopen a dissolution judgment that is brought within one year after the dissolution judgment. Because Minn. Stat. § 518.145, subd. 2(3), provides that “fraud” is a valid reason to reopen a judgment within one year, “whether [the fraud is] denominated intrinsic or extrinsic, misrepresentation, or other misconduct of the adverse party,” it is less strenuous than the standard of fraud on the court. Our holding, that a motion to reopen a dissolution judgment for fraud requires the moving party to meet a lesser threshold than that required to reopen a judgment for fraud on the court, is consistent with case-law indicating that the failure of a party to a dissolution to make a full and complete disclosure constitutes sufficient reason to reopen the dissolution judgment for fraud, without any showing of fraud on the court. Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn.1983) (stating breach of the duty of parties to a dissolution to make full and accurate disclosure constitutes fraud sufficient to set aside the judgment); Hafner v. Hafner, 237 Minn. 424, 432, 54 N.W.2d 854, 859 (1952) (holding that the confidential relationship between a husband and wife imposes a duty of good faith that requires fair and full disclosure and the breach of that duty provides grounds to set aside the property division without a showing of fraud on the court); and Sanborn v. Sanborn, 503 N.W.2d 499, 503-04 (Minn.App.1993) (holding husband who represented value of business as one-third actual value committed fraud justifying reopening of judgment), review denied (Minn. Sept. 21,1993).

Appellant brought his motion within one year after the judgment and contends that he was defrauded by respondent’s failure to make full and complete disclosure of her assets. In such case, the appropriate legal standard is ordinary fraud. Ordinary fraud, in a dissolution context, does not require an affirmative misrepresentation or an intentional course of concealment because parties to a marriage dissolution have a duty to disclose all assets and liabilities completely and accurately. Bollenbach v. Bollenbach, 285 Minn. 418, 428, 175 N.W.2d 148, 155 (1970). That duty was reinforced by the provision in the parties’ Marital Termination Agreement that

each party expressly stipulates and agrees that each has entered into this stipulation after full disclosure upon the advice of respective counsel and that each has relied upon the other party having fully disclosed all of his or her assets, both real and personal, all income including any and all assets or income in the nature of third parties and under their control whether or not in their names.

The need for an evidentiary hearing

In family cases, non-contempt motions are decided without an evidentiary hearing, “unless otherwise ordered by the court for good cause shown.” Minn. R. Gen. Pract. 303.03(d). The precise definition of “good cause” under rule 303.03(d) has yet to be articulated. However, a motion to reopen under Minn.Stat. § 518.145, subd. 2, is an alternative to an “independent action to relieve a party from a judgment.” Therefore, the district court should treat such a motion as it would a complaint in a separate action alleging fraud. The district court does not have authority to dispose of such a motion summarily, simply because the motion is ancillary to the dissolution proceeding.

A district court may summarily dispose of a fraud claim (i.e. grant summary judgment) “only where there is no genuine issue of material fact in dispute and where a determination of the applicable law will resolve the controversy.” Gaspord v. Washington County Planning Comm’n, 312 Minn. 591, 591, 252 N.W.2d 590, 590 (1977). When presented with a motion for summary judgment, the district court may not weigh the evidence. Wagner v. Schwegmann’s South Toum Liquor, Inc., 485 N.W.2d 730, 733 (Minn.App.1992), review denied (Minn. July 16, 1992). Instead, the district court must view the evidence in the light most favorable to the nonmoving party. Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn.1982).

Here, the district court failed to view appellant’s affidavits in the light most favorable to appellant and, instead, imper-missibly weighed other evidence against appellant. Appellant presented evidence that respondent failed to disclose material facts concerning her assets. The district court’s memorandum summarizes its determination, that appellant had failed to show fraud, as follows:

Mr. Doering has not made a showing necessitating an evidentiary hearing on the issue of fraud. The information presented, including the affidavit of Attorney Murphy, indicates the parties wanted to end their marriage as quickly and amiably as possible. Prior to contacting Attorney Murphy, the parties discussed and resolved several major issues. At the time the parties first met with Attorney Murphy, Mr. Doering’s only concern was that he have enough money to pay the farm debts incurred during the marriage. There is simply no evidence that Ms. Doering intended to misrepresent the value of the marital assets or that she intentionally failed to disclose all the marital assets. In fact, Mr. Doering has failed to show that he requested any information at all or that when requested such information was not provided. In short, Mr. Doering has failed to show that the nondisclosure, if any, was intentional.

This summary shows that the district court’s ruling is based on the standard of fraud on the court. As noted above, it is not necessary in a marital-dissolution context to show that the adverse party intentionally failed to disclose all of the marital assets. Because the confidential relationship between the parties creates an affirmative duty to disclose, nondisclosure is sufficient to establish a breach of that duty, without evidence of intent. Further, because the duty to make a full and fair disclosure is an affirmative duty, there is no requirement that the moving party show that he requested the information that was not disclosed; the duty to disclose exists in the absence of such a request.

Of course, a party to a marital dissolution could theoretically waive all rights to receive full disclosure from the adverse party. To the extent that the district court’s determination implies that such a waiver was made here, that implication is inconsistent with the evidence viewed in the light most favorable to appellant. Appellant’s affidavit states that he asked Murphy about respondent’s pension and Murphy responded that the value of the pension was private and would not be made part of the court record, but that appellant’s reasonable share should be between $145,000 and $193,000. Further, appellant’s affidavit states that he relied on the provision in the Marital Termination Agreement, drawn by Murphy, that each party “has relied upon the other party having fully disclosed all of his or her assets, both real and personal * * *.” Given this evidence, the court could not conclude as a matter of law that appellant had waived his right to full disclosure.

Respondent argues that the evidence showed appellant “was singularly uninterested in going through the process to assure that there would be a ¾ division of [assets].” Respondent’s arguments, however, depend on resolving fact disputes in favor of respondent. For example, respondent relies on the deposition testimony of Murphy, who claims that he attempted to make disclosures to appellant of the value of respondent’s retirement funds, and that the property division may not result in an equal division of assets, but appellant declined this information. This evidence would be relevant at an evidentia-ry hearing, but cannot be weighed when viewing the evidence in the light most favorable to appellant.

Similarly, respondent points out that none of the real estate, farm equipment, livestock, or household contents, awarded to appellant, had been inventoried or appraised. While this fact could support an inference that both parties intended to waive full disclosure, it is not conclusive. We note that, at oral argument, appellant’s counsel conceded that if the judgment were reopened, the value of these assets would be relevant to any redetermination of the property division.

Because appellant’s affidavits are sufficient to present a fact question of fraud, appellant established good cause for an evidentiary hearing on his motion to reopen the judgment.

Assistance of counsel

Although it is not a separate ground for reversal, our conclusion that appellant presented a fact question of fraud is bolstered by the facts that he was not separately represented by counsel and did not unequivocally waive his right to representation. Appellant argues that he was misled into believing that he did not need the assistance of counsel and believed that Murphy was looking after his interests. This assertion seems consistent with the facts that Murphy had been the parties’ family lawyer for many years, gave appellant legal advice on several issues during the dissolution proceedings and met with appellant alone and accepted payment from appellant for the legal services he provided during the dissolution. As a result, it would not be unreasonable for appellant to be confused as to Murphy’s role. When Murphy suggested a reasonable range for the settlement of appellant’s interest in respondent’s pension plan, without providing information as to the value of that plan, appellant could reasonably assume that Murphy believed that the settlement fairly reflected the value of the plan and appellant’s interest in it.

DECISION

The district court improperly denied the appellant’s motion to reopen without an evidentiary hearing on the issue of fraud. Therefore, we reverse the denial of appellant’s motion and remand for an evidentia-ry hearing. Upon remand, the court should apply the ordinary-fraud standard, as outlined in this opinion; make findings on disputed issues of material fact (with appellant bearing the burden of proof to a fair preponderance of the evidence); and, if grounds to reopen the judgment are shown, make a just and equitable division of the marital property.

Reversed and remanded.

      . Intrinsic fraud is more closely associated with fraud on the court — it "affects matters involving the court proceedings such as perjured testimony.” 2A Minn. Prac., § 60.22.

      . Murphy was not without options. He could have required appellant to execute a formal waiver of counsel and a written consent to Murphy’s representation of respondent. Minn. R. Gen. Pract. 306.01(c) (requiring that pro se signatories to Marital Termination Agreements execute a separate waiver, prepared as an addendum, stating "I know I have the right to be represented by a lawyer of my choice. I hereby expressly waive the right and I freely and voluntarily sign the foregoing stipulation”); Minn. R. Prof. Conduct 1.7, 1.9 (requiring consent from a present or former client to the representation of an adverse party). In addition, he could have declined to offer appellant legal advice or to meet with appellant without respondent present. Finally, if the parties truly intended to waive full disclosure of their respective assets and liabilities, Murphy could have placed such a waiver in the Marital Termination Agreement, and eliminated the stipulation that the parties had relied upon full disclosure.


author: HARTEN, Judge.

text:
    HEALTH PERSONNEL, Appellant, v. Karen PETERSON, Respondent.
    No. C3-01-24.
    Court of Appeals of Minnesota.
    June 26, 2001.
    Review Denied Aug. 22, 2001.

      Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, for appellant.
    Matthew J. Hanzel, Carolin J. Nearing, Garaghty, O’Loughlin & Kenny, P.A., St. Paul, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, and RANDALL, Judge, and HARTEN, Judge.
   OPINION

HARTEN, Judge.

Appellant moved for leave to file a supplemental complaint in garnishment against an insurer after entering into a Miller-Shugart agreement with the insured. Following oral argument, the district court found no probable cause that the insurer was liable to appellant and denied the motion. Appellant challenges that denial.

FACTS

Appellant Health Personnel, a provider of professional home health care services, arranged for Karen Peterson, a nurse, to provide home health care to one of appellant’s clients. The care was to be paid for by the Department of Human Services (DHS). Before care is provided, DHS requires providers to obtain a physician’s certificate that home health care services are required and authorized. Peterson did not obtain a physician’s certificate before providing $92,591 worth of home health care.

DHS was billed for and paid the $92,591, but later notified appellant that, because Peterson had not obtained a physician’s certificate before providing the care, DHS was not liable for payment and would offset $92,591 from future payments owed appellant.

Appellant then sued Peterson. Peterson tendered the defense to her insurer, American Casualty Company of Reading, PA. (ACC). But because Peterson’s policy excluded coverage for “the return or withdrawal of fees or government payments imposed directly upon [the insured],” ACC refused to defend her.

Appellant and Peterson settled with a Miller-Shugart stipulation that judgment in the amount of $92,591 would be entered against Peterson and that appellant would attempt to recover only from ACC.

ISSUE

Was there probable cause for granting appellant’s motion to file a supplemental complaint in garnishment?

ANALYSIS

“Insurance coverage issues are questions of law for the court.” State Farm Ins. Cos. v. Seefeld, 481 N.W.2d 62, 64 (Minn.1992) (citation omitted). Our review is therefore de novo.

Minn.Stat. § 571.75, subd. 4 (2000), provides:

[W]here the garnishee denies liability, the creditor may move the court * * ⅜ for an order making the garnishee a party to the civil action and granting the creditor leave to file a supplemental complaint against the garnishee and the debtor. The supplemental complaint shall set forth the facts upon which the creditor claims to charge the garnishee. If probable cause is shown, the motion shall be granted.

ACC contends, and the district court concluded, that no probable cause was shown. We agree.

Exclusion “J” in Peterson’s policy states that the policy does not provide coverage for “any fines, penalties, the return or withdrawal of fees or government payments imposed directly upon you [the insured].” (Emphasis in original.) The obligation to return government payment here was imposed directly on Peterson, the insured, when the district court entered judgment against her, and appellant agreed at oral argument that the policy does not provide coverage for Peterson herself.

Appellant argues, however, that the policy does provide coverage for the return of government payments imposed on an entity other than the insured. But permitting an insured who is excluded from coverage to obtain coverage by transferring the obligation to a third party would effectively void the exclusion. Appellant’s reading equates an exclusion of liability for an obligation imposed on the insured to an acceptance of liability for the same obligation if imposed on a third party. There is no reason to suppose either that an insurer would accept such liability or that an insured would purchase such coverage.

DECISION

Appellant does not show probable cause for ACC’s liability. The district court did not err in denying the motion to file a supplemental complaint in garnishment.

Affirmed.

      . See Miller v. Shugart, 316 N.W.2d 729, 731 (Minn.1982) (approving a variety of tort settlement where an insured tortfeasor agrees to an adverse judgment provided it is enforceable only against the tortfeasor’s insurer).

      . The district court originally issued an order granting the motion to amend, but the parties stipulated to vacation of that order to determine whether probable cause exists pursuant to Minn.Stat. § 571.75, subd. 4 (2000).

      . Appellant commits the logical fallacy of denying the antecedent, essentially arguing that the hypothetical syllogism "if an entity is the insured, then coverage is denied,” means that "if an entity is not the insured, then coverage is not denied.”

      . Because we conclude that the policy exclusion precludes ACC's liability to appellant, we do not address appellant’s alternative arguments that the policy is ambiguous and that Peterson had a reasonable expectation of coverage, nor do we address ACC’s contention that these alternative arguments are not properly before us.


author: G. BARRY ANDERSON, Judge

text:
    STATE of Minnesota, Respondent, v. Peter Allen COLVIN, Appellant.
    No. C4-00-1365.
    Court of Appeals of Minnesota.
    June 26, 2001.

      Mike Hatch, Minnesota Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Raymond F. Schmitz, Olmsted County Attorney, Rochester, MN, (for respondent).
    John M. Stuart, Minnesota Public Defender, D. Adrian Bryan, Assistant State Public Defender, Minneapolis, MN, (for appellant).
    Considered and decided by R.A. RANDALL, Presiding Judge, ROBERT SCHUMACHER and G. BARRY ANDERSON, Judges.
   OPINION

G. BARRY ANDERSON, Judge

The district court convicted appellant of first-degree burglary. Appellant argues that (1) intent to violate an order for protection is not an independent crime other than trespass, and therefore cannot satisfy an element of first-degree burglary and (2) that the evidence is insufficient to prove he intended to violate the order for protection in effect against him. We conclude that appellant intended to violate the order for protection and that the intent to violate that order constitutes intent to commit an independent crime other than trespass, an element of first-degree burglary pursuant to Minn.Stat. § 609.582, subd. 1(a). Accordingly, we affirm.

FACTS

The parties stipulated to the facts in the record. On February 25,1999, at approximately 10:28 p.m., Rochester police officers received a report of a restraining order violation at 704 Third Avenue Southeast. On arrival, M.C. and a juvenile who lived with her, A.M.E., told police that A.M.E. had entered their home at approximately 6:10 p.m. and found appellant Peter Allen Colvin on the couch drinking beer and watching television. Appellant apparently entered through an unlocked window. A.M.E. asked appellant to leave and he complied. A.M.E. then telephoned M.C. at her workplace and told her about the incident. M.C., in turn, telephoned police.

The officers confirmed that M.C. had obtained an order for protection (OFP) against appellant effective for one year from October 14, 1998 and that the order was served on appellant. That order provided that appellant could not (1) commit acts of domestic abuse against M.C.; (2) have contact with M.C.; or (3) enter M.C.’s house, “even if invited to do so.”

The state charged appellant with first-degree burglary, a violation of Minn.Stat. § 609.582, subd. 1(a) and violation of an order for protection in contravention of Minn.Stat. § 518B.01, subd. 14(d)(1). Appellant pleaded guilty to a separate charge of receiving stolen property and agreed to try the burglary charge to the court on stipulated facts. In exchange, the state dropped the charge for the OFP violation. The district court found appellant guilty of first-degree burglary and sentenced appellant to serve 33 months in the custody of the Commissioner of Corrections.

This appeal follows.

ISSUES

I. Does intent to violate an order for protection satisfy an element of first-degree burglary?

II. Was the evidence sufficient for the district court to find appellant intended to violate an order for protection?

ANALYSIS

I.

Appellant first contends that intent to violate an order for protection cannot satisfy the burglary element of intent to commit an independent crime other than trespass while in the building. Whether a criminal statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

The state charged appellant with first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (1998), which provides:

Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, * * * commits burglary in the first degree * * * if: (a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building ⅜ * *.

Id. For a burglary conviction to stand, the state must prove a defendant intended to commit some independent crime other than trespass. State v. Larson, 358 N.W.2d 668, 670 (Minn.1984). Larson concludes that to allow an intent to commit a trespass to satisfy the requirement of intent to commit a crime would mean that

a mere trespasser who had no intent other than to enter or remain in a building without the consent of the owner could be convicted of burglary.

Id. The court rejected that idea. Id. For this reason, the state is required to “do more than establish an intent to commit the crime of trespass.” Id.

Appellant argues that intent to violate an order for protection should be treated like trespass. The elements of burglary are (1) entry without consent and (2) intent to commit a crime. See Minn. Stat. § 609.582, subd. 1 (1998). Trespass cannot serve as the independent crime because it is not independent — trespass is completely encompassed in entry without consent. Larson, 358 N.W.2d at 670.

A violation of an order for protection, however, is not completely encompassed by the element of entry without consent. The state is required to prove the existence, and defendant’s awareness, of the order for protection, in addition to a violation of the order. Minn.Stat. § 518B.01, subd. 14(b) (1998). Simply stated, every burglary involves a trespass, but, not every burglary involves a violation of an order for protection.

Because the state must do more than establish intent to commit a crime of trespass to convict a defendant of violating an order for protection, intent to violate an order for protection satisfies the independent crime requirement of first-degree burglary, a violation of Minn. Stat. § 609.582, subd. 1(a).

II.

Appellant next argues that, even if intent to violate an order for protection satisfies an element of burglary, the state failed to prove intent in this case. We treat this argument as a challenge to the sufficiency of the evidence.

Evidence is sufficient to support a conviction if, given the facts in the record and any legitimate inference to be drawn from those facts, the fact-finder could reasonably find that the defendant committed the crime. State v. Wilson, 535 N.W.2d 597, 605 (Minn.1995). This court views evidence in the light most favorable to the verdict. State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978). These standards of review apply in criminal cases whether the case is tried to a jury or, as here, the court. State v. Ibarra, 355 N.W.2d 125, 130 (Minn.1984).

As discussed above, the elements of burglary in the first degree are (1) an entry into a building in which another person is present without the consent of the owner and (2) the intent to commit a crime. Minn.Stat. § 609.582, subd. 1(a). Appellant does not dispute that he entered M.C.’s home while another person was present without M.C.’s consent. Thus, the state needed to prove appellant intended to commit some independent crime, other than trespass, after the illegal entry into the building. Larson, 358 N.W.2d at 670. The underlying “crime” required for conviction of first-degree burglary includes misdemeanors. State v. Olson, 382 N.W.2d 279, 282 (Minn.App.1986). Violation of an order for protection, a misdemeanor, requires only that the defendant “know of’ the order and then violate it. Minn.Stat. § 518B.01, subd. 14(b).

Intent to commit a predicate crime for burglary is usually proved by circumstantial evidence. State v. Ring, 554 N.W.2d 758, 760 (Minn.App.1996), review denied (Minn. Jan. 21, 1997). Although reviewed with more scrutiny, circumstantial evidence is entitled to the same weight as other evidence. State v. Ashby, 567 N.W.2d 21, 27 (Minn.1997). A fact-finder is in the best position to evaluate the circumstantial evidence surrounding the crime, and a verdict based on circumstantial evidence is entitled to “due deference.” State v. Race, 383 N.W.2d 656, 662 (Minn.1986).

In this case, the state presented evidence that appellant was served the order for protection on October 14, 1998. In addition, the state’s complaint reports that the state charged appellant with violating that order for protection for breaking into M.C.’s house once before, on October 26, 1998. Appellant stipulated to the state’s evidence, including these facts. Even had appellant not been served with the order for protection, it is clear that in February 1999, the time of the instant offense, appellant was aware of the OFP by virtue of the 1998 charges. Moreover, when A.M.E. confronted appellant and asked him to leave during the February 1999 incident, he immediately did so, suggesting that he knew he was not supposed to be in M.C.’s home.

We conclude that the circumstantial evidence is sufficient to prove that appellant intended to violate the order for protection upon his entry to M.C.’s home and hold that a reasonable factfinder could find appellant guilty of first-degree burglary.

DECISION

Intent to violate an order for protection, a violation of Minn.Stat. § 518B.01, subd. 14(d)(1) (1998), constitutes intent to commit a crime other than trespass, an element of first-degree burglary pursuant to Minn.Stat. 609.582, subd. 1(a) (1998). The circumstantial evidence is sufficient to prove that appellant intended to violate the order, and therefore supports his conviction for first-degree burglary.

Affirmed.

      . Although not precedential, this court rejected an identical argument in State v. Roberson,
        1998 WL 690846, C7-98-211 (Minn.App. Oct. 6, 1998).