This opinion will be unpublished and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
Kenneth Jerome Czech, petitioner,
Jacquelyn Ann Czech,
Filed November 19, 2002
Pope County District Court
File No. F7-01-45
Neil R. Tangen, Tangen Law Office, P.O. Box 758, Starbuck, MN 56381 (for appellant)
Jan M. Wahlquist, Nelson & Kuhn, Ltd., 14 Franklin Street South, Glenwood, MN 56334 (for respondent)
††††††††††† Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Harten, Judge.
††††††††††† Appellant challenges the district courtís decision to vacate in part and reopen in part the default judgment dissolving his marriage to respondent.† Because we agree with the district courtís finding of mistake, we affirm.
Appellant Kenneth Czech and respondent Jacquelyn Czech were married in 1995. In the summer of 2000, they were planning a ďdo it yourselfĒ marriage dissolution.† Respondent left in July 2000; appellant said he would get in touch with her when the paperwork for the dissolution was completed.
†In January 2001, appellant filed a petition for dissolution in which he sought the entire marital estate.† He also filed a motion to allow service by publication and a supporting affidavit in which he said that he had made
[a] diligent inquiry through channels open to him to locate [respondent] and has contacted all relatives and friends who might have information, all to no avail in locating [respondent].† The affiant has been unable to locate her and has no way of knowing where she is.† [Respondent] cannot be found within the state of Minnesota and personal service cannot well be made on the [respondent].
On the strength of this affidavit, the district court granted the motion for service by publication and signed an order for publication.† The summons was duly published in February 2001.
On 27 April 2001, the district court, noting that no response to the published summons had been received, dissolved the partiesí marriage in a default judgment that adopted the terms of appellantís petition and provided for service of the judgment on respondent by publication.† When respondent contacted appellant and learned of the terms of the dissolution, she moved to have the judgment vacated in part and reopened in part on ground of mistake and fraud.† The district court found that respondent had failed to prove fraud, but it issued an order partially vacating and partially reopening the judgment on the ground of mistake.†
In its memorandum, the district court quoted Minn. Stat. ß 518.11 (c) (2000):
If personal service cannot be made, the court may order service of the summons by alternate means.† The application for alternate service must include the last known location of the respondent; the petitionerís most recent contacts with the respondent; the last known location of the respondentís employment; the names and locations of the respondentís parents, siblings, children, and other close relatives; the names and locations of other persons who are likely to know the respondentís whereabouts; and a description of efforts to locate those persons.
The court shall consider the length of time the respondentís location has been unknown, the likelihood that the respondentís location will become known, the nature of the relief sought, and the nature of efforts made to locate the respondent.
The court then explained:
[Appellantís] affidavit and motion for publication did not provide the necessary information for the Court to ascertain the length of time the [respondentís] location had been unknown, the likelihood that the [respondentís] location would become known, and the specific efforts made to locate [respondent.]
The Court acknowledges sua sponte that a mistake was made when [appellant] was permitted to file his non-compliant application for alternate service and the Court signed the Order for Publication.†
* * * *
Due to the mistake made by [appellant] in submitting an application for alternate service that was incomplete under Minn. Stat. ß 518.11, and the Courtís error in issuing an Order for Publication based upon that application, the Court finds that it is just to relieve [respondent] from portions of * * * the Judgment * * * .† The Court finds that if [appellant] would have been required to submit his application for alternative service with the required contact information, there is a high probability that [respondent] would have been located and been able to answer the summons in a timely manner.† Since [respondentís] marital interests were disposed of in the * * * Judgment * * * by default, as result of a mistake, [respondent] shall be given an opportunity to file an answer and claim her marital interests in the reopened portions of the dissolution proceeding.
Appellant challenges the district courtís order.
††††††††††† The district court has discretion to decide whether to reopen a dissolution judgment, and an appellate court will not reverse that decision absent an abuse of discretion.† See, e.g., Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996).†
Reopening of default judgments is to be liberally undertaken so that disputes can be resolved on their merits. * * * It is within the trial courtís discretion to set aside a default judgment and judgment will not be reversed absent a clear abuse of discretion.
Galatovich v. Watson, 412 N.W.2d 758, 760 (Minn. App. 1987) (citations omitted.)
††††††††††† Minn. Stat. ß 518.145, subd. 2, provides that
[o]n motion and upon terms as are just, the court may relieve a party from a judgment and decree * * * and may order a new trial or grant other relief as may be just for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect * * *.
The district court relieved respondent from the judgment for a twofold mistake: appellantís mistake, in failing to provide the court with the information required by statute when he moved for service by publication, and the courtís own mistake, when it granted that petition absent the requisite information.
††††††††††† Appellantís only argument is that there was no mistake because the information he provided was the same as that required by statute, only differently worded.† But affidavits submitted in support of respondentís motion demonstrate that appellant did not comply with Minn. Stat. ß 518.11(c) in that he did not include respondentís last known location, the names of her close relatives, or a description of his efforts to locate them.† One affiant said he told appellant that respondent had left for California and that respondent said appellant had a phone number for her and would call her about the dissolution proceedings.† Respondentís parents also furnished affidavits.† Respondentís father said he met appellant in a bar and appellant did not ask him where respondent was; when her father mentioned respondent, appellant said, ďWhy * * * would I want to see or talk to her for?Ē† Respondentís mother said appellant did not ask her where respondent was and did not tell her about the dissolution; if he had asked her about respondentís whereabouts, she would have told him.† Another affiant, the man with whom respondent went to California, said appellant had his cell phone number and had called him repeatedly.
††††††††††† These affidavits provide ample support for the district courtís determination that appellant had not complied with Minn. Stat. ß 518.11(c) when he moved to serve respondent by publication and that the district court itself had erred in granting appellantís motion.† There was no abuse of discretion in partially vacating and partially reopening the default judgment.