This opinion will be unpublished and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

C5-00-1889

 

In Re the Marriage of: Lisa Ann Backlund, petitioner,
Respondent,

vs.

Gregory Lee Backlund,
Appellant.

 

Filed June 19, 2001

Remanded

Stoneburner, Judge

 

Sherburne County District Court

File No. F2981463

 

 

Elizabeth K. Moore, Terpstra, Black, Brandell, Jensen & Moore, 913 Main Street, Elk River, MN 55330 (for respondent)

 

Kenneth M. Bottema, 1159 University Avenue West, St. Paul, MN 55104 (for appellant)

 

 

            Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Poritsky, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

On appeal from a post-dissolution order, appellant argues that the district court erred by proceeding with a hearing on respondent’s motion without appellant or his attorney being present when appellant and his attorney were not given notice that the time of the hearing had been changed.  Appellant also challenges the substance of the post-dissolution order as an improper modification of a final property settlement.  If notice of the time change was not properly mailed, then the district court erred by proceeding with the hearing.  If the notice was properly mailed, then the district court did not err by treating appellant’s failure to appear as a default and, based on the evidence presented by respondent, did not err in its ruling on the substantive issues.  Because we are unable to determine whether notice of the change of the time of the hearing was properly mailed to appellant, we remand for a determination on this issue.  If the district court determines on remand that the notice was properly mailed, we affirm.  If the district court determines on remand that the notice was not properly mailed, we direct the district court to vacate the order and reset the matter giving appellant an opportunity to be heard.

FACTS

At a hearing on respondent’s motion to hold appellant in contempt of court and for other relief based on appellant’s continued failure to pay child support and failure to pay respondent’s lien on the marital homestead, appellant moved for and was granted a continuance over respondent’s objection.  In open court, the hearing was rescheduled to 1:00 p.m. on September 20, 2000.  For reasons not apparent from the record, the time of the hearing was later changed to 9:00 a.m., and the court administrator’s office mailed notices of the time change to the parties and their attorneys.  The notice to appellant’s attorney was not sent to his address of record.  The notice was sent to an address that is not found in the district court file.  All documents and court notices contained in the district court record prior to this notice show appellant’s attorney’s address as: Calhoun Square, Suite 309B, 3001 Hennepin Avenue South, Minneapolis, MN 55408.  Documents mailed after the notice continued to be sent to the Hennepin Avenue address until appellant’s attorney moved to a new location in St. Paul.  The notice of the rescheduled hearing was mailed to 50 Whitney Square, 210 North Second Street, Minneapolis, MN, 55401.  The source of this address is not apparent from the record.  Neither party raised the issue of the address discrepancy, although appellant’s attorney has consistently denied receiving notice of the change in the hearing time.

Appellant and his attorney failed to appear at the 9:00 a.m. hearing on September 20.  The district court acknowledged that appellant’s absence was due to his incarceration, but did not know why appellant’s attorney, who had appeared at all other hearings, was not present.  The district court checked the court file and saw that notices had been mailed, but did not mention the address discrepancy.  Finding that a notice had been mailed, the district court allowed the hearing to proceed by default.  Respondent dismissed her motion for a finding of contempt, but requested that the court order the sale of the homestead and apply the proceeds to child-support arrears and her lien.  Respondent also requested that any remaining proceeds be held in an escrow/trust account to secure payment of future child support during appellant’s incarceration.  The district court granted this relief and issued an amended judgment.

Appellant’s attorney appeared at the courthouse at 1:00 p.m. on September 20, which was the time originally set for the hearing.  Appellant’s attorney moved for an order to vacate the default order or for reconsideration, supported by his affidavit stating that he never received notice that the hearing was reset for 9:00 a.m.  The district court denied the motions, commenting only that notice of the changed time had been mailed to appellant’s attorney.

D E C I S I O N

 

            Appellant argues that the district court erred by permitting the September 20 hearing to proceed by default because his attorney was not given notice of the rescheduled time for the hearing.  Whether a party is given legally adequate notice presents an issue of law, which we review de novo.  See generally In re License of West Side Pawn, 587 N.W.2d 521, 522 (Minn. App. 1998) (“If a licensee challenges an issue of law, such as the legal adequacy of the notice, our review is de novo.”) (citing Benton v. Mutual of Omaha Ins. Co., 500 N.W.2d 158, 160 (Minn. App. 1993), review denied (Minn. July 19, 1993)).  Due to the inadequate record in this case, however, we have insufficient facts upon which to base a review.

A fundamental tenet of procedural due process is adequate notice.  See Goldberg v. Kelly, 397 U.S. 254, 267-68, 90 S. Ct. 1011, 1020 (1970) (recognizing that procedural due-process protections include reasonable notice); Contos v. Herbst, 278 N.W.2d 732, 742 (Minn. 1979) (“[A]t a minimum the due process clause requires that deprivation of property be preceded by notice and an opportunity for a hearing appropriate to the case.”); Barton Contracting Co., Inc. v. City of Afton, 268 N.W.2d 712, 716 (Minn. 1978) (indicating applicable rights of due process are “reasonable notice of hearing and a reasonable opportunity to be heard”); Juster Bros., Inc. v. Christgau, 214 Minn. 108, 119, 7 N.W.2d 501, 508 (1943) (indicating due process requires adequate notice and fair hearing). 

Appellant’s attorney was given the date and time of the hearing in open court on August 28, but the time of the hearing was subsequently changed.  The court administrator mailed notice of the rescheduled hearing to the attorney at an address that does not appear in the court files and did not mail the notice to the attorney’s address of record.  A review of the record shows that the address used is not affixed to any of appellant’s attorney’s documents in the district court file or any of the court administrator’s prior or subsequent correspondence with him.  According to his affidavit, appellant’s attorney did not actually receive the notice. 

Once a document is mailed to the proper address, it is immaterial whether the party receives it, but the court must mail it to the correct address.  Cf. Kelley v. Moe, 387 N.W.2d 664, 668 (Minn. App. 1986) (stating that in context of service by mail, “once a letter is properly mailed, the risk of nondelivery is on the addressee”) (emphasis added)).  If the court mailed the notice of the changed hearing time to the wrong address, appellant was prejudiced.

On remand, the district court shall determine if mailing the notice to 50 Whitney Square, 210 North Second Street, Minneapolis, MN, 55401, constituted proper mailing.  If notice was not properly mailed, the district court erred by proceeding with a default hearing, and the order shall be vacated and the matter rescheduled to give appellant an opportunity to be heard.  If the district court determines that the notice was properly mailed, the notice was adequate and the district court did not err by proceeding with the hearing, despite the absence of appellant’s counsel.

            In the interests of judicial economy, and only in the event that the district court determines that notice was properly mailed to appellant’s counsel, we provide this analysis of the merits of appellant’s case based on the evidence before the district court at the default hearing.  The decree of dissolution awarded the homestead to respondent subject to a lien in favor of appellant in the amount of $40,000, to be paid within 45 days of the entry of the decree.  The decree provided: “If the lien is not satisfied within that time period, Petitioner may move the court for an Order selling the homestead, and the lien shall be satisfied from the sale proceeds.”  A supplemental judgment was entered on September 21, 1999, against appellant for child-support arrearages in the amount of $2,504 and $500 for attorney fees awarded to respondent in the original decree.  The supplemental judgment provided that if the homestead was sold,

the proceeds resulting therefrom be sequestered for purposes of satisfying the amounts due and owing the [respondent] by [appellant], specifically including [appellant’s] child support arrears, payment of [respondent’s] marital lien on the homestead, and payment to [respondent] as and for attorneys fees ordered herein.

 

No appeal was taken from this judgment.  The Supplemental Judgment II, entered after the September 20, 2000 default hearing, (1) entered judgment against appellant for an additional $7,695.61 in child-support arrears and $800 for attorney fees; (2) awarded respondent the exclusive use and possession of the homestead; (3) ordered the homestead to be sold upon terms and conditions to be determined and decided solely by respondent; and (4) ordered the net proceeds from the sale placed in escrow in an account under the exclusive control of respondent who is authorized to withdraw funds from the account in the amount due each month as appellant’s child-support obligation, to ensure that child support is paid during appellant’s incarceration.  The Supplemental Judgment II contains findings that appellant is facing lengthy incarceration, failed to pay the lien, and failed to pay court-ordered child support and attorney fees.

            Appellant now argues that because the lien awarded in the original decree was not designated to secure the payment of child support, the district court erred by modifying a property division.  We disagree.  The decree specifically provided for sale of the homestead to satisfy respondent’s lien if appellant failed to pay within 45 days on entry of the decree.  The unchallenged supplemental judgment further provided that proceeds from the sale would apply to child-support arrears and attorney fees awarded to respondent by the court.  The transfer of possession of the homestead to respondent is solely to effectuate the timely and reasonable sale of the homestead.  The Supplemental Judgment II does not impermissibly diminish appellant’s substantive rights under the decree, but effectuates the express terms of the property provision and supplemental judgment.  See Potter v. Potter, 471 N.W. 113, 114 (Minn. App. 1991) (recognizing court’s power to implement or enforce property division does not constitute improper modification of judgment); see, e.g., Hanson v. Hanson, 379 N.W.2d 230, 233 (Minn. App. 1985) (amending judgment to fairly implement dissolution decree did not impermissibly redistribute property).  The district court did not err by ordering respondent to take control of the homestead, sell it, and use the proceeds to satisfy the lien, child-support arrears and court-awarded attorney fees.

            Minnesota promotes a “strong interest in insuring that parents provide for their children.”  Jensen v. Jensen, 414 N.W.2d 742, 746 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988).  The district court has broad discretion to provide for the support of the parties’ children, and this court will not reverse the district court’s decision on child support unless that decision was against logic and the facts on the record.  Rutten v. Rutten, 347 N.W.2d 47, 50-51 (Minn. 1984).  Minnesota’s child-support statute provides:

[T]he court shall make a further order which is just and proper concerning the maintenance of the minor children * * * and for the maintenance of any child of the parties * * * as support money.  The court may make any child support order a lien or charge upon the property of the obligor, either at the time of the entry of the judgment or by subsequent order upon proper application.

 

Minn. Stat. § 518.57, subd. 1 (2000).

Similarly, under the modification statute, the district court “may impose a lien or charge” on appellant’s property at any time for payment of child support:

The court may impose a lien or charge on the divided property at any time while the property, or subsequently acquired property, is owned by the parties or either of them, for the payment of maintenance or support money, or may sequester the property.

 

Minn. Stat. § 518.64, subd. 2(e) (2000). 

            The record does not indicate that appellant has moved to modify his child-support obligation based on changed circumstances.  Based only on the information before the district court at the September 20, 2000 default hearing, the district court did not err by concluding that appellant had exhibited a clear disregard for his child-support obligation and did not err by placing net proceeds from the sale of the homestead in escrow to ensure child-support payments during appellant’s incarceration.

            If, however, on remand the district court determines that notice was not properly mailed, we express no opinion as to whether the parties’ property division was impermissibly modified, and the district court must reconsider the issue in light of evidence not previously before it.  But, if the district court determines that appellant’s counsel was given appropriate notice of the September 20, 2000 hearing, we affirm.

            Remanded. 

 



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