This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-285

 

In the Matter of the Application of:

Jill Marie Lecy,

On Behalf of Mackenzie Rae Schoenherr,

For a Change of Name to

Mackenzie Rae Lecy

 

 

Filed November 18, 2003

Reversed and remanded

Randall, Judge

 

Scott County District Court

File No. C-2002-21114

 

Wright S. Walling, Kimberly A. Weinacht, Walling & Berg, P.A., 121 South Eight Street, Suite 1100, Minneapolis, MN  55402 (for appellant)

 

Jill Marie Lecy, 14889 Oakwood Place, MN  55378 (respondent pro se)

 

            Considered and decided by, Hudson, Presiding Judge, Randall, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

On appeal from the district court’s order changing his daughter’s surname, appellant, Jerold D. Schoenherr, argues (1) the district court erred by ordering his daughter’s name change because he did not receive the required notice under Minn. Stat. § 259.10 (2002); (2) the court abused its discretion by not considering his letter explicitly objecting to the name change; and (3) the court failed to make adequate findings of fact determining the best interests of the child under Minn. Stat. § 259.11(a) (2002).  Because appellant did not receive proper notice, we reverse and remand.

FACTS

            Appellant, Jerold D. Schoenherr, and respondent, Jill Marie Lecy, are the legal parents of M.R.L., a seven-year-old girl.  Lecy is the surname of respondent's new husband.  M.R.L.’s previous surname was Schoenherr, the surname of appellant.

            Appellant moved to Atlanta approximately two years ago leaving M.R.L. in physical custody of the respondent.  Appellant and respondent share joint legal custody of M.R.L.  Prior to legally changing the surname, respondent informally changed M.R.L.’s surname to Lecy in their home community.

            Respondent petitioned the Scott County District Court in the fall of 2002 to officially change M.R.L.’s surname to Lecy.  Appellant received notice of the November 19, 2002, hearing to consider the name change petition, but chose not to appear at the hearing.  Instead, he faxed a letter to the district court objecting to the petition.  The court refused to consider appellant’s objection by fax, letter, or other correspondence, and required appellant to appear in court for his objection to the name change to be considered.  The court scheduled an evidentiary hearing for January 2, 2003.  Both parties intended to appear pro se.

            After receiving notice of the hearing, appellant asked the court to reschedule the hearing due his wife’s hospitalization.  Appellant also mentioned his objection to his daughter’s name change in this correspondence.  The court granted the request, and rescheduled the new hearing for February 4, 2003.

            The notice of this hearing was sent to the same address of appellant as previous hearing notices for this matter, but this notice was returned to the district court stamped, “undeliverable as addressed unable to forward.”  District court staff did not follow up and re-attempt to send notice to appellant.  The returned notice was in the possession of court administration for weeks before the rescheduled hearing.  Not having notice, appellant failed to appear at the hearing.  The judge was not cognizant of the failed notice at the hearing, and proceeded with the matter ex parte.

            At the hearing, the court considered only the evidence offered by respondent as a witness.  Respondent appeared pro se and testified to the facts regarding custody.  Respondent testified to appellant’s lack of interest in a relationship with his daughter.  She also testified that appellant does not have relatives in Minnesota; that appellant visits M.R.L. twice a year; and that the M.R.L. “has had virtually no contact with appellant’s extended family for approximately a year.”  Then she testified that appellant had expressed an interest in having her husband adopt M.R.L.  Respondent further testified that M.R.L.’s life would be easier with the name change because it facilitates dental and medical appointments, and it also would help avoid confusion in their community.

            The district court found that it is in M.R.L.’s best interests to grant the name change. The court ordered M.R.L.’s surname to be changed from Schoenherr to Lecy.  This appeal followed.

D E C I S I O N

I.

            Appellant claims that the district court’s decision should be reversed because he did not receive the statutory required notice.  Receipt of notice is a due process requirement.  McKeiver v. Pennsylvania, 403 U.S. 528, 533, 91 S. Ct. 1976, 1981 (1971).  Under Minn. Stat. § 259.10 subd. 1 (2002), a minor child’s name cannot be “changed without both parents having notice of the pending application for change of name, whenever practicable, as determined by the court.”  Statutory construction is a matter of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

Minn. Stat. § 259.10, subd. 1 has two modifying clauses.  First the notice requirement is modified by the phrase, “whenever practicable,” and second, the notice requirement is modified by another phrase, “as determined by the court.”  Minn. Stat. § 259.10, subd. 1.   The statute suggests that the court should use whatever practical method available to serve notice of the application.  It was reasonably practical to mail the notice to appellant when he had received other notices at the same address.  Thus, the district court acted within the plain meaning of the statute.

Appellant argues the court had a duty to resend the notice, or in the alternative, contact him by some other means provided in his correspondence with the court.  (In the letters faxed to the court objecting to the name change, appellant gave his phone number as means to reach him).  We agree.  Once it was clear to court administration that appellant had no notice of the new date for the hearing, they did have some responsibility to contact appellant.  By making no attempt to contact appellant and then allowing the matter to proceed by default as if he had received proper notice and failed to appear, appellant got the worst of both worlds and was materially prejudiced.  The key is that the record reflects the notice for the hearing was mailed to appellant, but came back to the court stamped “undelivered” in early January.  It then sat there for weeks before the rescheduled hearing with nothing in the record indicating that any attempt was made to find a new address.  The district court narrowed itself by stating it would not consider any faxes or letters.  The district court has the discretion to do that, but that means without his appearance, the court took it as a “default,” and that simply is not due process on these facts. 

The record is abundantly clear that district court administration had actual notice that appellant did not have any notice of the hearing.  We cannot say that under no circumstances would appellant have prevailed if he had a hearing.  We reverse and remand for a new hearing preceded by proper and timely notice.

II.

   Appellant also contends the district court abused its discretion by not considering his letter explicitly objecting to the name change, failing to make adequate findings of fact determining the best interests of the child under Minn. Stat. § 259.11(a) (2002).  Because we reverse and remand for a new hearing, we need not determine whether the court abused its discretion in excluding the letters from appellant.  However, we find it troubling that the district court considered, as a source of some of its findings, some of appellant’s statements in his letters to respondent discussing the possibility of the adoption of M.R.L. by respondent’s husband.  There is an angry exchange in one of appellant’s letters where he was discussing child support and said something to the effect that if that is all this matter is about, why don’t you just adopt.  It could have been sarcastic, it could have been many things, but that line, possibly taken out of context, cannot be substantive evidence when appellant was not in court and able to respond to the letter and have a chance to explain or clarify.

The district court ruled that appellant’s letters would not be admissible.  That is a judgment call for the district court to make, but the court cannot then go through those letters and use parts as admissible evidence to support its findings on best interests of the child.  A district court cannot exclude evidence and then rely on it in its decision.

Reversed and remanded.