This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-1573

 

County of Anoka,

Respondent,

Erika Marie Holderness,

Respondent,

 

vs.

 

Quentin Lewis-Keyes Williams,

Appellant.

 

 

Filed May 15, 2001

Affirmed

G. Barry Anderson, Judge

 

Anoka County District Court

File No. F39752677

 

 

Robert M.A. Johnson, Anoka County Attorney, Dorrie B. Estebo, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN  55303-2665 (for respondent)

 

Erika Marie Holderness, 4654 Tyler Street NE, Apt. 7, Minneapolis, MN  55421 (pro se respondent)

 

Richard A. Enga, Attorney at Law, 3032 Radisson Plaza VII, 45 South Seventh Street, Minneapolis, MN  55402 (for appellant)

 

            Considered and decided by G. Barry Anderson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

G. BARRY ANDERSON, Judge

Appellant, adjudicated the father of a minor child, argues that the district court (1) clearly erred in denying appellant’s motion to vacate the judgment due to improper service of the summons, and (2) abused its discretion in denying appellant’s request to refund previously collected support payments and ordering appellant to pay unrecoverable past support.  Because we conclude that appellant was properly served and that the district court did not abuse its discretion, we affirm.

FACTS

            On September 17, 1997, respondent Anoka County Office of Child Support attempted to serve appellant Quentin Lewis-Keyes Williams with numerous papers, including a summons and complaint to determine paternity.  The documents were served on an address confirmed by the U.S. Postal Service as the place where appellant received his mail; Angela Rogers accepted the documents on behalf of appellant. Appellant did not answer the complaint.  Anoka County served appellant, by U.S. Mail, with a Notice of Final Hearing to the same address.  

            At the paternity hearing, respondent Erika Marie Holderness testified that appellant was the only man she had sexual intercourse with around the time that her son could have been conceived; appellant did not appear at the hearing.  The district court granted the motion for a default judgment adjudicating appellant the father of the child.  The district court ordered appellant to pay ongoing child support of $338.93 per month beginning January 28, 1997, the child’s date of birth, and ordered appellant to pay an additional $50 per month if appellant did not have health insurance for the child.

Anoka County served the orders and judgments on appellant by U.S. Mail to the address where the complaint was filed; the documents were not returned as undeliverable.  Anoka County did not receive support payments from appellant until May 1998 when appellant’s employer began withholding child support from his paycheck.  At that time, appellant contacted Anoka County to ask what he could do to challenge the district court’s order; he was told to hire a lawyer and bring the matter back to court. 

On April 28, 2000, appellant served respondents with a motion to vacate the default judgment on two grounds: (1) improper service, and (2) he is not the biological father of the child.  Appellant included with the motion his signed affidavit, which stated that he did not live at the North Minneapolis address but lived in Missouri where he attended college from August 1996 to June 1998.  As a result, appellant contended that process was not delivered to his “usual place of abode.”  Also included with the motion was a paternity blood test result excluding appellant as father of the child.

            At the June 12, 2000 hearing on the motion, the district court, after considering the affidavit, concluded that appellant had been properly served.  The court stated, “frankly [the court does not] find Mr. Williams’ affidavit to be credible on that issue.”  The district court vacated the portion of the judgment adjudicating appellant to be the father of the minor child, denied appellant’s request to have the $3,139.78 in support payments returned, and granted judgment against appellant in the amount of $3,237.61 as partial reimbursement for public assistance expended on behalf of the minor child.[1]  The district court stated:

I think [the judgment] is a pretty good measure of what’s been lost forever because [appellant] didn’t act.  Had [appellant] acted, it probably would have been a much smaller number.  In fact if [appellant] acted, I think this would have been taken care of two years ago.  But this[,] I think[,] is a good measure of the amount of money that couldn’t be recovered because of the two-year limitation.

Appellant now challenges this order and judgment.

D E C I S I O N

Appellant argues that the district court erred in (1) denying his motion to vacate judgment because of improper service, and (2) denying his request to refund previously collected support payments and ordering him to pay past support after excluding him as the biological father of the minor child.

I.

Appellant argues that service of process was defective because Anoka County did not deliver the documents to his “usual place of abode.”  As a result, appellant contends that the district court had no personal jurisdiction over him and no power to issue an enforceable order against him. 

Minn. R. Civ. P. 4.03 provides that a summons shall be served

[u]pon an individual by delivering a copy to the individual personally or by leaving a copy at the individual’s usual place of abode with some person of suitable age and discretion then residing therein.

 

Minn. R. Civ. P. 4.03(a).  “A person’s usual place of abode is the place where the defendant is actually living at the time when service is made.”  Peterson v. Eishen, 495 N.W.2d 223, 225 (Minn. App. 1993) (citation & quotation omitted), aff’d, 512 N.W.2d 338 (Minn. 1994).  A party challenging an affidavit of service must overcome, by clear and convincing evidence, the presumption that service is adequate.  Peterson, 495 N.W.2d at 225-26.  The location of a person’s usual place of abode is a fact question, and this court will not reverse the district court’s determination unless clearly erroneous.  Id. at 225.

The district court stated:

The court does not find [appellant’s] statements regarding his residence address at the time of process to be credible.  [Appellant] has not met his burden of overcoming the affidavit of service by clear and convincing evidence.

Appellant argues that the district court clearly erred because his affidavit, in which he states he was a resident of Missouri at the time process was served, proved by clear and convincing evidence that service was improper.  As support, appellant cites Peterson v. Eishen, 495 N.W.2d 233 (Minn. App. 1993).  In Peterson, Ramsey County sent the defendant a certified letter to an address that drivers license records, the Minnesota Department of Revenue, and the U.S. Post Office all listed as defendant’s current residence; the letter was returned as “undeliverable.”  Id. at 224.  The county hand delivered the documents to the same address; the papers were returned with a note that stated the defendant did not live at that address.  Id.  After the district court entered a default judgment against defendant, he moved to vacate the judgment for improper service.  Id.  To support his motion, the defendant submitted his affidavit, an affidavit from his current landlord, and an affidavit from a friend.  Id. at 224-25.  The district court vacated the default judgment, and this court affirmed.  Id. at 225.

Peterson is distinguishable from this case.  In contrast to Peterson, the service documents and the orders and judgments in this case were not returned as undeliverable.  And, unlike the defendant in Peterson, who submitted affidavits from his landlord and friend, appellant submitted only his self-serving affidavit in support of his contention that the North Minneapolis address was not his “usual place of abode.” Moreover, the district court in this case expressly found appellant was not credible and we defer to such determinations.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (criticizing appellate court for failing to defer to district court credibility determination).  Accordingly, we conclude that the district court’s determination that appellant did not produce clear and convincing evidence to overcome the affidavit of service of process was not clearly erroneous.  See Minn. R. Civ. P. 52.01 (providing findings of fact, whether based on oral or documentary evidence, not set aside unless clearly erroneous).

            Appellant alternatively argues that the woman who accepted service of process, Angela Rogers, was not a resident of the house, thereby rendering service of process defective.  See O’Sell v. Peterson, 595 N.W.2d 870, 872 (Minn. App. 1999) (stating generally, service of process to a non-resident is not effective).  The only basis for this statement is the argument by appellant’s attorney that Rogers was the housekeeper for appellant’s father.  Given the otherwise unsupported nature of this assertion, and also given Rogers’ acceptance of service, we conclude that the district court did not clearly err in rejecting appellant’s argument.   

II.

Appellant argues that the district court abused its discretion in failing to refund to him prior child support payments and entering judgment against him for uncollectible child support.  Appellate courts will not disturb a district court’s decision on a motion to vacate a default judgment absent an abuse of discretion.  Imperial Premium Fin., Inc. v. GK Cab Co., 603 N.W.2d 853, 856-57 (Minn. App. 2000)Moreover, on appeal we review the district court’s findings of fact under the “clearly erroneous” standard.  First Trust Co. v. Union Depot Place Ltd. Partnership, 476 N.W.2d 178, 181 (Minn. App. 1991), review denied (Minn. Dec. 13, 1991).     

Appellant sought to vacate judgment pursuant to Minn. R. Civ. P. 60.02.  A party seeking relief under rule 60.02 must demonstrate (1) a reasonable case on the merits; (2) a reasonable excuse for the failure to act; (3) that it acted with due diligence after notice of the entry of judgment; and (4) that no substantial prejudice to the opposing party would result from granting the motion to vacate.  Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964).  The moving party bears the burden of proving all four elements.  Nelson v. Siebert, 428 N.W.2d 394, 395 (Minn. 1988).

On appeal, the parties stipulate to the first element.  As for the second element, appellant argues that his financial circumstances precluded him from hiring a lawyer and reasonably excused his failure to act.  The district court responded by stating, “[appellant] says ‘Well, I acted, I called child support officers; I called lawyers but I couldn’t afford them.’”  Despite appellant’s argument, the district court found that appellant did not provide a reasonable excuse for his failure to act promptly in response to the default judgment.  The district court’s finding was not clearly erroneous.  Cf. Galatovich v. Watson, 412 N.W.2d 758, 760 (Minn. App. 1987) (stating that defendant who was not told and did not know that he should contact an attorney to avoid default judgment but acted promptly when made aware of the judgment acted reasonably).

Appellant next argues that he acted diligently after notice of entry of the default judgment.  The district court found:

Because [appellant] did not bring his motion to vacate the default judgment until almost two years after he admittedly knew about the judgment, the defendant failed to act with due diligence after notice of entry of the default judgment.

 

The district court’s finding was not clearly erroneous because appellant waited nearly two years to act, a time period significantly greater than those found to be diligent under Minnesota law.  See Finden, 268 Minn. at 271, 128 N.W.2d at 750 (two months); Kemmerer v. State Farm Ins. Cos., 513 N.W.2d 838, 841 (Minn. App. 1994) (three months), review denied (Minn. June 2, 1994); Galatovich, 412 N.W.2d at 760 (six months). 

The district court found that appellant’s “failure to act sooner to vacate the paternity judgment against him has caused substantial prejudice to [Anoka County] * * * .”  Appellant acknowledges that Anoka County was substantially prejudiced because it cannot recover a portion of past child support.  See Minn. Stat. § 257.66, subd. 4 (2000) (stating a parent’s liability for past support is limited “to the proportion of the expenses that the court deems just, which were incurred in the two years immediately preceding the commencement of the action”).  But appellant attempts to carve out an exception to the “substantial prejudice” element by arguing that he did not cause this prejudice.  Instead, appellant argues that false testimony by the mother at the default judgment hearing caused the county’s prejudice.

Although appellant correctly notes that the false testimony played a role in adjudicating appellant the father of the child, appellant failed to demonstrate that there will be no substantial prejudice to Anoka County.  See Imperial Premium Fin., Inc.,603 N.W.2d at 857 (holding the Finden test looks to whether “there would be no substantial prejudice to the opposing party if the motion to vacate is granted”).  While there is certainly an element of unfairness to appellant given the testimony falsely implicating appellant as the father of the child, there is clearly an element of unfairness to Anoka County and that unfairness was aggravated by Appellant’s failure to act.  Under these circumstances, the district court’s finding was not clearly erroneous.

            Because appellant met only the first element of the four-prong Finden test, we conclude that the district court did not abuse its discretion in denying appellant’s motion to vacate judgment.

            Affirmed.



[1] The district court arrived at this number by adding all child support owed by appellant from January 28, 1997 to July 31, 1998 less monies previously paid by appellant.