This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-01-1169

 

In Re the Marriage of:
Cindy A. Marich, n/k/a Cindy Leary, petitioner,
Respondent,

vs.

Michael W. Marich,
Appellant.

 

 

Filed April 23, 2002

Reversed

Stoneburner, Judge

 

Ramsey County District Court

File No. F178425304

 

 

Susan A. Daudelin, Katz & Manka, Ltd., Suite 4150, 225 South Sixth Street, Minneapolis, MN 55402 (for appellant)

 

Cindy Leary, 7046 Ė 40th Street North, Oakdale, MN 55128 (pro se respondent)

 

 

††††††††††† Considered and decided by Anderson, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D† O P I N I O N

STONEBURNER, Judge

 

††††††††††† Appellant father challenges (1) the district courtís 1996 support order extending his child-support obligation beyond his youngest sonís eighteenth birthday; (2) the child support magistrateís 2001 order denying fatherís motion to terminate his child-support obligation as of his sonís eighteenth birthday and to forgive his child-support arrears calculated after the date of his sonís eighteenth birthday; and (3) the district courtís 2001 order affirming the child support magistrateís decision.† Because, under the unusual facts of this case, fatherís appeal from the 1996 child-support order is timely, and because the district court erred as a matter of law by extending fatherís child-support obligation beyond his youngest sonís eighteenth birthday, we reverse.

FACTS

 

The February 2, 1980 Judgment and Decree dissolved the marriage of father and respondent mother; awarded custody of the partiesí two children to mother; and ordered father to pay child support ďuntil such time as the minor children reach the age of 18, are otherwise emancipated, legally self-supporting or deceased.Ē

More than fifteen years later, mother started contempt proceedings against father for his failure to pay child support.† The district court appointed a public defender to represent father regarding the contempt issues.† On July 3, 1996, a Ramsey County referee made findings on the record that the court would have jurisdiction to proceed with the contempt hearing even after the partiesí youngest child reached the age of eighteen on July 26, 1996.† The referee stated:

The Court is of the opinion that the definition concerning the time frame for when this child will be cared for is contained in the language right within the Judgment and Decree.† This is what the parties negotiated for even though it may very well be beyond or short of the language as contained in the statute that was in existence at the time of the entry of the Judgment and Decree. * * *

The Court is satisfied that there has been a sufficient showing that this child is not legally self-supporting * * * .† Since the child is not legally self-supporting and since the Court by statute has continuing jurisdiction as long as a dependent person is not in fact legally self-supporting, that, therefore, it follows that the Courtís jurisdiction continues.†

 

The referee further stated that:

 

The Court is satisfied, therefore that it continues to have the power then to entertain this motion to hold the Obligor in contempt for failing to abide by the terms of the Judgment and Decree.

 

The referee asked motherís attorney to draft an order reflecting the refereeís decision on continuing jurisdiction and then set the date of an evidentiary hearing on the contempt issue for September 20, 1996.†††

††††††††††† The referee and the district court judge signed the July 1996 hearing order on September 20, 1996.† The signed order, however, exceeded the scope of the issue before the court by ordering father to continue paying child support until his youngest son became legally self-supporting.† Mother did not serve father with the notice of filing and entry of the September 1996 order but did, on September 25, 1996, serve the public defender who represented father with regard to the contempt issues.† Father denies having received a copy of the order.

In December 2000, the county sent father a ďfinancial letterĒ showing fatherís child-support arrearages to be $25,135.44.† Father immediately moved for an order terminating his child-support obligation and forgiving arrears that accrued after his youngest childís eighteenth birthday.† Father argued that the order purporting to extend his child-support obligation beyond the childís eighteenth birthday was not the result of any motion by mother to extend fatherís child support and, therefore, that he was never given an opportunity to oppose such an extension.† A child support magistrate (CSM) denied in part and granted in part fatherís motion, terminating fatherís child-support obligation effective April 1, 2000, but denying fatherís motion to forgive his child-support arrears back to his youngest sonís eighteenth birthday.† The CSM stated that she found it incredible that father did not have notice of the September 1996 order but concluded that the child became self-supporting at least when he moved out of motherís home in April 2000, ending fatherís support obligation as of that date.

††††††††††† Father moved the district court for review of the CSMís order.† The district court affirmed.† This appeal followed.

D E C I S I O N

 

1.†††††††† Timeliness of fatherís appeal

††††††††††† Because father is challenging the September 1996 order, we must first determine whether his appeal is timely.† Father argues that his appeal is properly before this court because mother failed to properly serve him with the notice of filing and entry of the September 1996 order and that motherís service on fatherís public defender in the contempt matter was not effective to limit fatherís time for appeal on the underlying support obligation.† We agree.††

††††††††††† Service is generally a question of law and is reviewed de novo.† See Year 2001 Budget Appeal of Lyle Landgren v. Pipestone County Bd. of Commírs, 633 N.W.2d 875, 877 (Minn. App. 2001).† Interpretation of the rules of civil procedure is also a question of law, subject to de novo review.† Id.

††††††††††† In 1996, an appeal from a district court order was timely if filed ďwithin 30 days after service by the adverse party of written notice of filing.Ē† Minn. R. Civ. App. P. 104.01.† If an attorney represented a party, then service of a notice of filing was required to be made on the attorney.† Minn. R. Civ. P. 5.02.† If an attorney did not represent a party, then service of a notice of filing was required to be made on the party.† Minn. R. Civ. P. 5.01.††††† †††††

††††††††††† This is the first time we have addressed whether service of a notice of filing on an attorney appointed to represent a party solely with regard to contempt matters is effective to limit the time for appeal from the portion of an order dealing with issues other than contempt.† We previously held that service of a notice of filing on standby counsel is not effective to limit the time for appeal.† In re Rodriguez, 506 N.W.2d 660, 662 (Minn. App. 1993), review denied (Minn. Nov. 30, 1993).† Here, the public defender, representing father on the contempt issues, was not even acting as standby counsel for issues involving the underlying support obligation.† Appointed counsel only represented father on the contempt matters and specifically told father that he could not advise him on the underlying support obligation.† See Cox v. Slama, 355 N.W.2d 401, 404 (Minn. 1984) (stating that a public defender, appointed to defend a parent in a contempt proceeding for failure to pay child support, may only ďrepresent his client in the contempt proceedings and those narrow, ancillary issues related to contempt onlyĒ).† Clearly, father represented himself with regard to the child-support obligation.†

At the July 3, 1996 hearing, the issue before the court was the courtís jurisdiction over the contempt motion, not an extension of child support beyond the age of eighteen.† Under these circumstances, we hold that service of the notice of filing of the September 20, 1996 order on counsel who represented father only on the contempt issue was not effective to limit the time for appeal as to matters outside the scope of counselís representation.† See In re Rodriguez, 506 N.W.2d at 662 (stating that ineffective service of notice of filing prevents time for filing an appeal from running).† The appeal is timely.† Curtis v. Curtis, 442 N.W.2d 173, 176 (Minn. App. 1989) (ruling that an almost four-year-old support order was appealable because record lacked proof of service of written notice of filing of order).

2.†††††††† Fatherís child-support obligation

††††††††††† A district court may interpret a dissolution decree so long as the interpretation ďaccurately express[es] the thoughts the decree intended to convey.Ē† Bone v. Bone, 438 N.W.2d 448, 451 (Minn. App. 1989) (citation omitted).† Construction of an unambiguous stipulation in a dissolution decree is a question of law, which is reviewed de novo.† Emerick on behalf of Howley v. Sanchez, 547 N.W.2d 109, 112 (Minn. App. 1996) (ď[T]he construction and effect of an unambiguous stipulation are questions of law.Ē)†

The parties stipulated, and the decree of dissolution provided, that father would pay child support

until such time as the minor children reach the age of 18, are otherwise emancipated, legally self-supporting or deceased.

 

At the time of the decree, ďchild,Ē for purposes of child support, was defined as

an individual under 18 years of age or an individual who, by reason of his physical or mental condition, is unable to support himself.

 

Minn. Stat. ß 518.54, subd. 2 (1980).† Mother has never asserted, and no evidence has ever been presented to the court, that the youngest child of the parties is an individual who, by reason of physical or mental condition, is unable to support himself.†

The record on appeal does not demonstrate when the referee first began to entertain the idea that the decree required child support beyond the age of eighteen.† Motherís attorney sent a letter brief to the referee that was received by the court on July 2, 1996, asserting that the parties contracted for father to provide support until the child was legally self-supporting and providing the court with several case references defining ďself-supporting.Ē[1]† But the issue before the court at the July 3, 1996 hearing was the courtís jurisdiction over contempt proceedings after the child reached the age of eighteen, not whether fatherís support obligation extended beyond the childís eighteenth birthday.† The order prepared by motherís attorney and signed by the referee and district court exceeded the scope of the hearing by ordering father to continue to pay child support ďas long as the dependent child of the parties is not legally self supporting.Ē† Mother never moved to extend fatherís support obligation beyond the childís eighteenth birthday and father was never given an opportunity to respond to an assertion that his support obligation continued beyond the childís majority.† The decree is not ambiguous.† The parties did not stipulate, nor does the decree provide, that fatherís obligation would continue beyond the childís eighteenth birthday.

††††††††††† The district court erred by extending fatherís child-support obligation beyond the date of† his youngest sonís eighteenth birthday.† Because we reverse the portion of the September 20, 1996 order requiring father to pay child support beyond the childís eighteenth birthday, we also reverse the district courtís order affirming the CSMís determination that fatherís child-support obligation ended in April 2000.† We hold, as a matter of law, that fatherís child-support obligation for his youngest child terminated as of the date of the childís eighteenth birthday, July 26, 1996, and that no arrearages accrued after that date.

††††††††††† Reversed.

 



[1] There is no indication in the record that this letter was served on either father or on the attorney appointed to represent father in the contempt matter.