STATE OF MINNESOTA

 

IN COURT OF APPEALS

 

≠≠≠≠≠≠≠≠≠≠≠≠≠≠≠≠≠≠≠≠≠≠≠_________________________________

 

In Re the Matter of:

Torey Lynnett Thomas,

 

Appellant,

††††††††††† ††††††††††† ††††††††††† ††††††††††† ††††††††††† O R D E R

vs.

††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††† ††††††††††† #C5-99-1058

Myron James Gregory,

 

Respondent.

_________________________________

 

††††††††††† Based on the file, record, and proceedings, and because:

1.††††††††††† The opinion in this matter was filed on March 7, 2000.

2.††††††††††† The text of the opinion has been modified, beginning at page 4.

††††††††††† IT IS HEREBY ORDERED the opinion filed on March 7, 2000, is withdrawn and the attached opinion, including modified text beginning on page 4, is substituted.

††††††††††† Dated:April 14, 2000

 

 

 

 

 

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-99-1058

 

 

In Re the Matter of:
Torey Lynnett Thomas,
Appellant,

vs.

Myron James Gregory,
Respondent.

 

Filed April 14, 2000

Affirmed; Motion denied

Schumacher, Judge

 

Ramsey County District Court

File No. F19250553

 

 

Sara Jo Peotter, Peotter Law Firm, Ltd., 2110 Lexington Avenue South, Post Office Box 21603, Eagan, MN 55121-0603 (for appellant)

 

Fuchsia A. Campbell, James J. Street, Southern Minnesota Regional Legal Services, Inc., 300 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for respondent)

 

††††††††††† Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Anderson, Judge.

 

U N P U B L I S H E D†† O P I N I O N

SCHUMACHER, Judge

Torey Lynnett Thomas (mother) appeals from denial of her motions to reopen a custody determination and for amended findings of fact and conclusions of law or for a new trial, and the grant of the motion of Myron James Gregory (father) for permission to move their child out of state.Mother also moves this court for permission to amend the last page of her appellate brief.We affirm, and deny the motion.

FACTS

After proceedings establishing father's paternity, mother was granted joint legal and sole physical custody of the parties' child.But in May 1995, the child went to live with father because mother went to jail.When mother was released from jail in August 1995, she allowed the child to live with father five days a week so that the child could stay in his school.In February 1996, father filed a motion for custody of the child.A few days later, mother took the child from fatherís residence.Father obtained an attorney, and the court appointed one for mother, but her counsel eventually withdrew because of mother's failure to cooperate with the representation.

In April 1997, the parties negotiated an agreement providing for joint legal custody and that father would have sole physical custody.Mother was not represented by counsel.The agreement was read into the record and memorialized in a court order dated June 6, 1997.

In March 1998, father moved for permission to move the child to Michigan.Mother was represented by counsel and opposed the motion.The court appointed a guardian ad litem and set an evidentiary hearing.† The guardian ad litem recommended that father be allowed to move the child to Michigan and that the proceedings not be delayed in order to obtain a home study of fatherís Michigan home.

In May 1998, mother moved the court to set aside the June 6, 1997 custody agreement and reopen custody.In July 1998, the court heard oral argument on motherís motion.The evidentiary hearing on father's motion spanned all or part of six hearing days in June, July, and August.On August 17, 1998, the court denied motherís motion to reopen custody and granted fatherís motion to move the child to Michigan.

In September 1998, mother moved for amended findings of fact and conclusions of law, or for a new trial.The district court denied motherís motion for a continuance of the hearing on the motion.

On September 22, 1998, mother filed a notice of appeal to this court and moved for a stay placing the child with her during the appeal.In a November 3, 1998 order, this court denied the stay because mother had not first requested it from the district court, and dismissed the appeal without prejudice, remanding so the district court could consider motherís pending motion.On April 19, 1999, the district court denied motherís motion for amended findings and conclusions or for new trial.Mother appeals.

D E C I S I O N

1.††††††††††† Mother challenges the district court's denial of her motion for amended findings of fact and conclusions of law, or for a new trial.Minn. R. Civ. P. 59.03 requires that a motion for a new trial be brought within fifteen days of service of notice of entry of order.A motion for amended findings must be brought within the same period.Minn. R. Civ. P. 52.02.Because post-decree motions to modify custody do not involve a trial, new trial motions are not authorized in such proceedings.Huso v. Huso, 465 N.W.2d 719, 721 (Minn. App. 1991).

Father served notice of the district courtís entry of its August 17, 1998 orders on August 21, 1998.The record indicates that mother's motion was filed on September 14, 1998, 24 days later.(The record also contains an incomplete version of the motion, apparently faxed to the district court on September 8, 1998, but that version of the motion does not contain a signature page.See Minn. R. Civ. P. 11 (requiring all pleadings by represented party to be signed by counsel.))Even allowing for three additional days to act because the notice of entry of order was served by mail, see Minn. R. Civ. P. 6.05, mother's motion was untimely.As a result, the district court lacked jurisdiction to hear the motion.Differt v. Rendahl, 306 N.W.2d 813, 814 n.1 (Minn. 1981).

Furthermore, even if we were to accept the September 8, 1998 incomplete faxed version of the motion as timely filed (on the eighteenth day after service of notice of entry), the district court still lacked jurisdiction to consider the motion.A motion for amended findings of fact and conclusions of law must be heard within the 30-day period provided in rule 59.03.See Minn. R. Civ. P. 52.02; Boom v. Boom, 367 N.W.2d 536, 538 (Minn. App. 1985) (applying Rule 59.03's 30-day period for hearing to motion for amended findings), review denied (Minn. Jun. 27, 1985).When mother filed her motion, she scheduled the hearing on it for November 6, well after the expiration of the 30-day period.Mother filed a motion for an expedited hearing, but the court denied that motion.Mother alleges that the court's denial of an expedited hearing was error, contending that the court's own calendar prevented hearing the motion within 30 days of the August 21, 1998 notice of entry of order.But mother did not properly file the motion until 24 days after the notice of entry of order.Under these circumstances, the court did not abuse its discretion in denying mother's motion for an expedited hearing.

Mother's motion for a new trial or amended findings of fact and conclusions of law was not actually heard until January 21, 1999.Because it was not heard within 30 days of the August 21, 1998 notice of entry of order, the district court correctly concluded it lacked jurisdiction to consider the motion.

2.††††††††††† Mother also claims she was denied her statutory right to counsel.On March 11, 1996, after mother took the child from father's home, father filed an ex parte motion for temporary custody.The court granted the ex parte motion the next day, and on March 21, 1996 appointed counsel for mother.On December 5, 1996, mother's court-appointed counsel withdrew; the district court found that the attorney had withdrawn because of mother's failure to cooperate with his representation.On April 16, 1997, acting pro se, mother stipulated with father that father would have sole physical custody and they would share joint legal custody.Mother now claims the district court erred by failing to ensure that she had court appointed counsel for the ex parte hearing and for the April 16, 1997 negotiations that resulted in the stipulated custody order.

We reject these contentions.The ex parte hearing and order were authorized by Minn. Stat. ß 518.131, subd. 3 (1998).Because the opposing party need not be present at an ex parte hearing, that party's right to counsel is not violated if the party appears without counsel.As to the April 16, 1997, hearing, assuming without deciding that mother had a statutory right to counsel during these proceedings, she was afforded that right when the district court appointed counsel for her on March 21, 1996, only a few days after the ex parte hearing.The district court specifically found that mother's counsel had withdrawn because of mother's failure to cooperate with his representation.Mother's failure to cooperate with her court-appointed counsel constitutes a waiver of any statutory right she may have had to such counsel.In the Interest of K.D.H. & P.H., 871 S.W.2d 651, 654-56 (Mo. Ct. App. 1994).

3.††††††††††† Mother also appeals the district court's denial of her motion to reopen the stipulated custody order.Review of custody determinations is limited to whether the district court abused its discretion by making findings not supported by the evidence or by improperly applying the law.Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993).

Mother does not specifically identify any finding as not supported by the evidence or any mistake of law.She alleges, in essence, that father fraudulently induced her to enter the stipulated custody order by representing that he had no intention to move to Michigan when in fact he did.Mother raised this concern in the hearing on the stipulated order, and counsel for father and the court both explained that it would be illegal for father to move the child without court permission.† Father, through his counsel, explained that it was his present intention to stay in Minnesota, but he could not guarantee that that would not change:

[Father] is willing to stay here; that he has no present intention to leave the state at this time.The parties can't predict the future, so I don't want to say anything more than that.

 

Mother cites no law that would prevent father from changing his mind, deciding that a move is in the child's best interests, and applying for permission to move the child, as father has done.Mother has not shown that the court abused its discretion.

4.††††††††††† Challenging the district court's decision to grant father's motion to move the child to Michigan, mother complains of a litany of alleged evidentiary errors by the court, but explains neither why the rulings were incorrect nor why they prejudiced her."Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error."Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).Because mother has demonstrated neither error nor prejudice, she has not demonstrated that the court abused its discretion.See also Ganguli v. University of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (court will not address allegations unsupported by analysis or citation).

Mother also alleges that the court abused its discretion by approving the move to Michigan without ordering a home study.Ordering a home study is discretionary with the court.Meyer v. Meyer, 375 N.W.2d 820, 826 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).In this case, the court had the advantage of a report by the guardian ad litem recommending that father be allowed to move the child to Michigan without delaying the move to allow a home study to be done.Furthermore, the court heard extensive testimony about Paulina Gregory, father's mother and the owner of the home where the child would live, attesting to her outstanding character.The court also had the opportunity to observe Gregory on the witness stand.Under these circumstances, the court did not abuse its discretion in allowing the move without a home study.Cf. id. (not abuse of discretion to fail to order either guardian ad litem or home study); Sucher v. Sucher, 416 N.W.2d 182, 185 (Minn. App. 1987) (not abuse of discretion to not appoint guardian ad litem where home study had been performed), review denied (Minn. Mar. 18, 1998).

5.††††††††††† Mother also alleges that the court's findings were clearly erroneous.† Review of custody determinations is limited to whether the district court abused its discretion by making findings not supported by the evidence or by improperly applying the law.Ayers, 508 N.W.2d at 518.De novo review of the record is inappropriate.Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).A review of the record reveals that the court's findings are amply supported by substantial evidence in the record and are not clearly erroneous.

6.††††††††††† Finally, mother moved this court for leave to amend the final page of her brief, but failed to explain why she should be allowed to do so three months after the brief was filed.We deny the motion.

Affirmed; motion denied.