This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-813

 

Linda Rae Burkstrand, petitioner,

Respondent,

 

vs.

 

Steven Glen Burkstrand,

Appellant.

 

Filed December 13, 2000

Reversed

Mulally, Judge*

 

Hennepin County District Court

File No. CA253786

 

Catherine A. Krisik, A. Larry Katz, Brian L. Sobol, Katz & Manka, Ltd., 4150 US Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for respondent)

 

John G. Westrick, Marcia McDowall-Nix, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge, Foley, Judge,** and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N

MULALLY, Judge

            Appellant Steven Glen Burkstrand challenges the district court’s issuance of an Order for Protection (OFP).  Appellant claims that respondent was the first to ask for a full hearing and, therefore, the district court lacked subject-matter jurisdiction to issue an OFP because the hearing on the matter was held on January 21, 2000, in violation of Minn. Stat. § 518B.01, subd. 7(c) (1998).  But respondent claims that because appellant was the first to request a hearing, the full hearing was held within the statutory period.  Because the full hearing was not held within the statutory time requirements irrespective of who asked for the full hearing first, the district court did not have the authority to issue an OFP.  We reverse.

 

FACTS

            On December 28, 1998, respondent Linda Rae Burkstrand filed an affidavit and petition for order of protection against appellant Steven Glen Burkstrand.  The trial court issued an order for domestic abuse hearing and an ex parte order for protection, scheduling the initial hearing on the matter for January 6, 2000.  At the initial hearing, the referee found that appellant was the first party to ask for a full hearing.  The referee intended to have the full hearing on January 6 even though it appeared appellant’s counsel had a conflict with another hearing that morning.  While appellant’s counsel was trying to verify whether he did in fact have a conflict, the court’s calendar filled and the referee was forced to reschedule the full hearing for January 7, 2000. 

On January 7, 2000, the scheduled date of the full hearing, appellant’s counsel cancelled the hearing due to an illness; the hearing was continued to January 18, 2000. On January 18, 2000, pursuant to a conference call with the trial court, the full hearing was scheduled for January 21, 2000.  An OFP was issued.

Appellant filed a notice of review with the trial court on February 11, 2000, but on April 12, 2000, the trial court affirmed the order for protection.  On May 11, 2000, appellant filed his notice of appeal with this court.

D E C I S I O N

I.

Appellant argues that the trial court lacked subject-matter jurisdiction to issue an order for protection because the hearing was held after the statutory period prescribed by Minn. Stat. § 518B.01, subd. 7(c) (1998).  The trial court cannot hold the full hearing outside of the period prescribed by statute.  El Nashaar v. El Nashaar, 529 N.W.2d 13, 14 (Minn. App. 1995).[1] 

Respondent claims that appellant waived his right to raise the issue of subject matter jurisdiction because (1) the continuance was granted upon his request on January 7, 2000, and (2) he failed to request that the matter be rescheduled within the statutory period.  Because it is black letter law that subject matter jurisdiction may not be waived, it is proper for appellant to question whether the trial court had subject matter jursidiction in this case.  See Marzitelli v. City of Little Canada, 582 N.W.2d 904, 909 (Minn. 1998).

“Whether a district court has subject matter jurisdiction is a legal question subject to de novo review on appeal.”  World Championship Fighting, Inc. v. Janos, 609 N.W.2d 263, 264 (Minn. App. 2000) (citation omitted).

Minn. Stat § 518B.01, subd. 7(c), provides as follows:

Upon request, a full hearing, as provided by this section, shall be set for not later than seven days from the issuance of the ex parte order, if a hearing is requested by the petitioner, or not later than ten days or earlier than eight days from receipt by the court of a request for a hearing by the respondent.

 

Whether appellant or respondent asked for a hearing first is immaterial.  Here, the ex parte order was issued on December 28, 1999.  If, as appellant suggests, respondent (the party petitioning for an order for protection) requested a full hearing, the hearing should have been set for no later than January 4, 2000.  See id. (providing that if a full hearing is requested by petitioner, the hearing must be set no later than seven days from issuance of the ex parte order).

On the other hand, if as the trial court concluded, as respondent claims, that appellant was the first to ask for a hearing, on January 6, a full hearing should have been held no earlier than January 14 and no later than January 16.  See id., subd. 5(a) (1998) (stating that if an ex parte order is issued and a party asks for a hearing, subdivision 7 determines when the hearing must be held); Minn. Stat. § 518B.01, subd. 7(c) (when respondent, rather than petitioner, asks for a hearing, the trial court must schedule the hearing no later than ten days or earlier than eight days after it is requested).

Here, a hearing was initially set for January 6, 2000, was rescheduled to January 7, was once again continued, and was finally held on January 21.  The hearing on January 6 was not a full hearing because no evidence was taken. See El Nashaar, 529 N.W.2d at 14 (stating that under the domestic abuse act, a full hearing does not occur unless evidence is taken) (citing Nohmer v. Anderson, 446 N.W.2d 202, 202-03 (Minn. App. 1989).  A full hearing was eventually held on January 21, seventeen days after January 4 and five days after January 16.  Accordingly, the full hearing was untimely, regardless of which party sought it.

Because the trial court lacked authority to continue the full hearing past the period prescribed by statute, it erred, as a matter of law, in issuing an order for protection on January 21, 2000.  See El Nashaar,529 N.W.2d at 14 (holding that the district court lacked authority to continue the ex parte order past the statutory period without making appropriate findings on domestic abuse).  While we sympathize with the trial court’s crowded calendar and limited judicial resources, “courts must give priority to the scheduling of domestic abuse hearings.”  Id. at 15.

II.

            Because we conclude that the trial court lacked subject-matter jurisdiction to issue an order of protection on January 21, 2000, we need not address appellant’s alternative argument regarding jurisdiction.

            Reversed.

 

 



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

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

 

[1] Respondent claims that El Nashaar is distinguishable from this case because it relates to the authority of the court to continue an ex parte order past the statutory period after the issuance without scheduling a full hearing, whereas here, a full hearing was ultimately held.  But this distinction does not affect the fundamental concept of law to be derived from El Nashaar: the nature of domestic abuse hearings requires that they be given priority and heard within the statutory period.  El Nashaar, 529 N.W.2d at 14-15.