This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-227

 

In re Michelle Ann Gohl, petitioner,
Respondent,

vs.

Brian David Gohl,
Appellant.

 

Filed December 2, 2003

Reversed and remanded

Peterson, Judge

 

 

Washington County District Court

File No. F8006712

 

Michelle Ann Nelson, 716 Laurel Street West, Stillwater, MN† 55082 (pro se respondent)

 

Kevin J. McGrath, Rodney H. Jensen, Mark E. Mullen, Jensen, McGrath & Mullen, P.L.L.P., 1350 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN† 55431 (for appellant)

 

††††††††††† Considered and decided by Minge, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D†† O P I N I O N

PETERSON, Judge

††††††††††† In this child-support matter, appellant father argues that the district courtís refusal to grant a continuance to permit him to submit his responsive documents, and the district courtís resulting failure to consider the documents, were based on an incorrect calculation of the original due date for the documents.† Appellant also argues that the district courtís findings were not sufficient to support the imputation of income to him.† Because we conclude that the refusal to grant a continuance was based on an erroneous determination of the due date, we reverse and remand.

FACTS

††††††††††† The parties were married in 1987 and are the parents of two minor children.† Respondent-mother Michelle Ann Gohl commenced this dissolution action in October 2000.† At a hearing on November 9, 2001, both parties were represented by counsel, and both parties testified that they had reached an agreement on the issues of spousal maintenance, property settlement, and custody; were close to reaching an agreement on a parenting-time plan; and had agreed to reserve the issue of child support until 2002.

††††††††††† Shortly after the November 2001 hearing, appellant-father Brian David Gohl discharged his attorney and then refused to sign off on the proposed findings of fact and conclusions of law prepared by motherís attorney in accordance with the partiesí agreement.† At a hearing on April 19, 2002, father, who appeared pro se, raised several objections to the proposed findings and conclusions.† The district court instructed father that if he had changed his mind about the settlement, the court would set the case for trial.† After a discussion between father and motherís attorney, father agreed to the settlement on the issues of property distribution, custody, parenting time, and spousal maintenance.† Motherís counsel stated that she would prepare a proposed judgment incorporating the partiesí settlement and submit it to father for his approval.† The parties agreed to reserve the issues of child support, medical and life insurance, and debt allocation.

††††††††††† The parties agreed to have the reserved issues decided based on affidavits rather than an evidentiary hearing.† Motherís attorney stated that she needed to obtain income and insurance information from father before preparing motherís submissions and that after obtaining that information, she would need three weeks to prepare motherís submissions.† The following exchange then occurred between the court and father:

††††††††††† THE COURT:† How much time do you need to respond?† What do you want?

 

††††††††††† [FATHER]:† Two weeks would be fine.

 

††††††††††† THE COURT:† So four weeks from today on the 17th of May for you [motherís counsel].† And the 31st of May for you, [father], to get your responses in.

 

††††††††††† How is that?

 

††††††††††† [FATHER]:† Fine.

 

††††††††††† On May 13, 2002, motherís attorney sent a letter to the district court stating that she was having difficulty finalizing the settlement agreement with father.† In light of the difficulty, mother requested an extension of time for motherís submissions on the reserved issues until May 31, 2002, and an extension of time for fatherís response until June 14, 2002.† The district court granted motherís request.† On May 23, 2002, motherís counsel sent a letter to the district court stating that she was still having difficulty finalizing the settlement agreement with father; had ordered a copy of the transcript of the April 19, 2002, hearing that would be completed by the following week; and, upon receiving the transcript, would submit to the district court the transcript, the proposed judgment, and a more thorough explanation of the dispute between the parties, and would likely make an additional motion.

††††††††††† On June 17, 2002, mother submitted to the district court a proposed order, the transcript of the April 19, 2002, hearing, and an affidavit addressing the reserved issues.

††††††††††† On July 2, 2002, father sent the district court a letter stating that with the upcoming July 4th holiday and his travel plans, he would be unable to meet the two-week deadline for responding to motherís submissions.† Father requested a one-week continuance, until July 11, 2002, to submit his response.† On July 3, 2002, the district court sent a letter to father stating:

According to court records, your submissions were due on June 25, 2002.† Your letter comes a week after that deadline, stating ď. . . with the Holiday and traveling I will not be able to make the time frame.Ē

 

††††††††††† In addition to being untimely, your request for a continuance appears to be in violation of the rules governing ex parte communications with the Court.

 

††††††††††† Even by your own misrepresentation of the deadline, no known ďHolidayĒ occurred during the time you were to prepare your submissions.† Your submissions will not be considered.

 

††††††††††† On July 3, 2002, pursuant to the partiesí agreement, the district court issued a bifurcated findings of fact, conclusions of law, and order for judgment.† The July 3, 2002, order awarded mother physical custody of the children.† It contains the following provision regarding child support:

††††††††††† At the pre-trial the parties reached a temporary agreement as to [fatherís] child support obligation based on his 2000 income.† They further agreed that his child support will be reviewed de novo after receipt of his 2001 income information.† [Mother] continues to assert that [father] is voluntarily unemployed during his periods of unemployment.† [Father] disagrees.† This issue as well as the establishment of [fatherís] ongoing child support obligation will be decided by the Court after each partyís submissions on the issue.

 

††††††††††† In an order filed September 30, 2002, the district court found:

††††††††††† [Father] is voluntarily underemployed.† [Fatherís] net monthly income, based on [the FinPlan calculation] is imputed to be $2,822.25.

 

The district court ordered father to pay $847 per month for child support.[1]

D E C I S I O N

ďThe granting of . . . a continuance is a matter within the trial judgeís discretion, and his decision should be based on all facts and circumstances surrounding the request.Ē† State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977); see also Hamilton v. Hamilton, 396 N.W.2d 91, 94 (Minn. App. 1986) (decision on motion for continuance should be based on facts and circumstances surrounding request).† ďIn determining whether the trial court was within its sound discretion in denying a motion for a continuance, [an appellate] court looks to whether the defendant was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial.Ē† Id. at 358-59; see also Richter v. Richter, 625 N.W.2d 490, 495 (Minn. App. 2001) (critical question in evaluating the denial of a continuance is whether denial prejudiced trial outcome), review denied (Minn. July 24, 2001).

††††††††††† Mother served her papers on father by mail on June 17, 2002.† ďWhenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party, and the notice or paper is served upon the party by mail, three days shall be added to the prescribed period.Ē† Minn. R. Civ. P. 6.05.† The district court initially gave father 14 calendar days to respond to motherís submission, and we have found nothing in the record that indicates that the court modified this response period.† Allowing father 17 calendar days from June 17 results in a deadline of July 4, 2002.† When the deadline for filing papers in court expires on a legal holiday, the time period is extended until the next day that is not a legal holiday or a Saturday or Sunday.† Minn. R. Civ. P. 6.01.† The next day, July 5, 2002, was a Friday; thus, father was required to file his response by July 5.

††††††††††† It appears that the district courtís determination that fatherís submissions were already past due when father requested the continuance was based on an erroneous belief that fatherís submissions had been due on June 25, 2002.† Because the denial of the continuance was based on this erroneous factual determination, the denial was not based on all of the facts and circumstances surrounding the request.† Also, because denying the continuance meant that fatherís submissions would not be considered, we conclude that the denial so prejudiced father in presenting his defense as to materially affect the outcome of the trial, and the district court abused its discretion by denying the continuance.† Therefore, we reverse the denial of the continuance and remand for further proceedings.†

††††††††††† The district court also stated in its letter to father that fatherís letter to the court appeared to violate rules governing ex parte communications with the court.† There is no indication in the record that father provided a copy of his letter to either mother or her attorney.† Motherís earlier requests for extensions of time for making her submissions on the reserved issues were made in letters to the court, rather than by formal motions, but the record indicates that mother provided father with copies of her letters.† However, the courtís letter to father does not indicate that fatherís failure to provide notice to mother was a separate basis for denying the request for a continuance.† The letter indicates that the courtís decision was based on the determination that fatherís submissions were already past due when father requested the continuance.† Therefore, we will not affirm the district courtís decision on this separate ground.

††††††††††† Because the district court made its decision to impute income to father without considering fatherís submissions, and because we have reversed the denial of fatherís request for a continuance to make the submissions, we do not address fatherís argument that the district courtís findings were insufficient to support the imputation of income.† We express no opinion with respect to imputation of income.

††††††††††† Reversed and remanded.



[1]Father appealed from the September 30 order.† A certified copy of the order did not show that judgment had been entered pursuant to the September 30 order; therefore, this court dismissed the appeal because an order for judgment is not an appealable order and instructed the district court administrator to enter judgment pursuant to the September 30 order.† On February 14, 2003, the district court sent this court a notice showing that judgment had been entered, but the notice indicates that judgment was entered on September 30, 2002.† For purposes of this appeal, we treat the judgment as having been entered on February 14, 2003.