This opinion will be unpublished and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

C6-01-809

 

In Re the Marriage of: Sherri Marie Serino,

petitioner, Respondent,

 

vs.

 

David Francis Serino,

Appellant.

 

 

Filed December 18, 2001

Affirmed in part, reversed in part, and remanded

Mulally, Judge*

 

Ramsey County District Court
File No. DMF297313

 

 

Roger A. Christianson, 600 Capital Centre, 386 North Wabasha, St. Paul, MN 55102; and

 

James R. Brinegar, Brinegar and Piletich, LLP, 1675 South Greeley Street, Suite 203, Stillwater, MN 55082 (for respondent)

 

Thomas W. Tuft, Valerie Downing Arnold, Thomas Tuft Law Offices, 1590 White Bear Avenue North, St. Paul, MN 55106-1604 (for appellant)

 

Considered and decided by Anderson, Presiding Judge, Peterson, Judge, and Mulally, Judge.

 

U N P U B L I S H E D  O P I N I O N

MULALLY, Judge

            In this dissolution proceeding, this court previously remanded various issues, including child support. On remand, the district court applied the Hortis/Valento formula to the parties’ support obligations although the parties did not have joint physical custody of their child.  The supreme court then issued Rogers v. Rogers, 622 N.W.2d 813 (Minn. 2001), holding that, absent joint physical custody, use of the Hortis/Valento formula is a deviation from the child support guidelines and must be supported by various findings of fact.   The parties responded by making various motions in the district court; the district court granted David Serino’s motion for a “new trial” on the support issue.  David Serino now appeals the grant of his own motion for a new trial.  He alleges that the district court (a) lacks jurisdiction to modify support because no proper motion to modify was pending; (b) cannot order a new trial because there was no timely motion for a new trial; and (c) divided the property inequitably.  We affirm in part, reverse in part, and remand.

FACTS

Sherri Marie Serino and David Serino were divorced in 1999.  Sherri Serino was granted sole physical custody of the parties’ minor child.  In a prior appeal, David Serino challenged the district court’s determinations of custody, child support, and property distribution.  This court affirmed the custody determination, but (a) reversed and remanded for recalculation of child support; (b) held that the increase in value of David Serino’s 401(k) plan was marital property and remanded the property distribution to be adjusted accordingly: and (c) affirmed a denial of David Serino’s request that Sherri Serino reimburse him for mortgage payments he had made on real property owned by the parties in Afton, Minnesota.[1]   

On remand, an October 19, 2000 order required David Serino to pay guideline child support, holding that this case did not reach the standard for application of the Hortis-Valento guidelines, since physical custody was not nearly equally shared.[2]   The court redistributed the marital property, based on the finding that David Serino’s interest in his 401(k) plan was non-marital.  On November 9, 2000, David Serino moved for amended findings, amended judgment, and a new trial on the issues of child support and property division.   On March 6, 2001, the district court declined to amend the property distribution, but applied the Hortis-Valento guidelines to recalculate child support, based on evidence of the parties’ parenting schedule and the inclusion of Sherri Serino’s net monthly bonus in her net monthly income. 

            That same day, the Minnesota Supreme Court issued its ruling in Rogers v.Rogers, 622 N.W.2d 813 (Minn. 2001), holding that the application of the Hortis-Valento formula in sole physical custody cases is a deviation from the child-support guidelines and cannot occur without the findings required by Minn Stat. § 518.551, subd. 5(c), (i) (2000).  Sherri Serino then moved for the district court to apply Rogers to this case. David Serino responded with a request for reconsideration of the March 6 order and a motion to dismiss Sherri Serino’s motion for amended findings based on lack of jurisdiction.  In the alternative, David Serino moved for amended findings or for a new trial to allow him to present evidence based on the Rogers decision. 

            The district court found that it had continuing jurisdiction in the matter and granted David Serino a new trial on the issue of child support, allowing him to present factual and legal arguments to support his claim for downward deviation under Rogers.  David Serino now appeals the grant of his own motion.   

D E C I S I O N

I.

The matter of interpretation of court rules is a question of law, which this court reviews de novo.  VanSlooten v. Estate of Schneider-Janzen, 623 N.W.2d 269, 270-71 (Minn. App. 2001).  Here, there had been no trial on remand.  Therefore, we need not address the propriety of the grant of David Serino’s motion for a new trial. 

Motions for amended findings under Minn. R. Civ. P. 52.02 may be granted in post-decree modification proceedings.  Hughes v. Hughley, 569 N.W. 2d 534, 536  (Minn. App. 1997).  The Minnesota Rules of Civil Procedure, as they were in effect in 2000, required that a motion for a new trial or for amended findings be brought within 15 days of service of notice by a party of the filing of the district court’s order.   Minn. R. Civ. P. 52.02, 59.03.[3]  The record in this case lacks any indication that notice of the filing of the October 19, 2000 order was served by a party.  Absent such service, the time limit for moving to amend the district court’s findings had not expired when Sherri Serino made her request for relief.  

Even if Sherri Serino’s motion for amended findings had been untimely, David Serino’s request for reconsideration under Minn. R. Gen. Pract. 115.11 provides a separate basis for the district court to grant relief.  Rule 115.11 applies to family law matters because it regulates “all civil motions, except those in family court matters governed by Minn. R. Gen. Pract. 301 through 312.”  Minn. R. Gen. Pract. 115.01  (emphasis added).   Rules 301-312, however, do not address reconsideration; therefore, they do not govern reconsideration, and it follows that motions for reconsideration under Minn. R. Gen. Pract. 115 are permitted in family law cases.[4]

            Additionally, while rule 115.11 provides that motions to reconsider will be granted “only upon a showing of compelling circumstances,” the comments make clear that   courts are likely to grant motions for reconsideration “where intervening legal developments have occurred (e. g., enactment of an applicable statute or issuance of a dispositive court decision) * * * .”  Minn. R. Gen. Pract. 115.1, cmt. (emphasis added).   Furthermore, Rule115.11 states no time limit for a motion to reconsider. 

In this case, David Serino made his request to reconsider the March 6, 2001 order based on the Rogers decision, which was handed down March 8, 2001.  Rogers changed priorlaw by holding that applying the Hortis-Valento formula to a case in which physical custody was vested solely in one parent was a deviation from the child-support guidelines and must be supported by findings on the statutory factors listed in Minn. Stat. § 518.551, subd. 5 (c), (i) (2000).  See Rogers, 622 N.W.2d at 821.  Here, Rogers constitutes a dispositive court decision of the kind contemplated by Minn. R. Gen. Pract. 115.11.  Since the March 6 order applies Hortis-Valento to an award of sole physical custody, reconsideration of the Hortis-Valento aspects of that order was appropriate.  We remand to allow the district court to reconsider the propriety of applying the Hortis-Valento formula, and, if it applies the formula, to make the requisite findings under Rogers.

II.

            Husband also maintains on appeal that the district court on remand abused its discretion by making an inequitable division of marital property.  The duty of the district court on remand is “to execute the mandate of the reviewing court strictly according to its terms.”  Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988) (citation omitted).

            Here, this court held in the first appeal that the district court had erred by identifying the appreciation of Davis Serino’s 401(k) account as marital property.  Consequently, on remand the district court recalculated the property distribution in light of David Serino’s nonmarital interest in his 401(k) account.  It then entered a finding, by stipulation of the parties, regarding the correct value of the nonmarital interest in this account.  Relying on this stipulation, the court divided the marital assets of the parties, awarding approximately 51%, to Sherri Serino, and approximately 49% to David Serino.   This award included an even division of the proceeds realized from the sale of the Afton, Minnesota property owned by the parties.

David Serino now argues that the district court erred by failing to compensate him for post-separation mortgage and tax payments he made on the Afton property, and for certain shares of stock that he was forced to sell to pay expenses. But consideration of these arguments lay beyond the scope of the previous remand; as such the district court had no mandate to consider them.   We decline to impose such a mandate now.

Affirmed in part, reversed in part, and 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.

[1] Serino v. Serino, No. C9-99-1791, 2000 WL 821603 (Minn.App. June 27, 2000).

[2] The Hortis-Valento formula requires a parent sharing joint physical custody to pay guideline child support for only the period of time that the other parent has custody of the child.  Valento v. Valento, 385 N.W. 2d 860, 862 (Minn. App. 1986), review denied (Minn. June 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985). 

[3] Effective on March 1, 2001, this time limit is extended to 30 days. Minn. R. Civ. P. 52.02, 59.03.

[4] This conclusion comports with the consistent references in the notes and comments following Minn. R. Gen. Pract. 301-312.  In particular, a comment following Minn. R. Gen. Pract. 303.03 states that the rule is derived from parallel provisions in Minn. R. Gen. Pract. 115, and is “intended to make motion practice in family court matters as similar to that in other civil action as possible and practical given the particular needs in family court matters.”  Minn. R. Gen. Pract. 303.03 advisory comm.—1996 amendment cmt.