This opinion will be unpublished and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

A03-848

 

 

In re

Michele Jaqueline White, petitioner,

Appellant,

 

vs.

 

Matthew William White,

Respondent.

 

Filed March 30, 2004

Reversed and remanded

Lansing, Judge

 

Hennepin County District Court

File No. DA 282018

 

 

Michael L. Perlman, Karin Gjerset, Perlman Law Office, Woodside Office Park, 10520 Wayzata Boulevard, Minnetonka, MN 55305 (for appellant)

 

Linda R. Allen, Butler, Huson & Allen, P.A., 2330 U.S. Bank Center, 101 Fifth Street East, St. Paul, MN  55101 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from a reciprocal order for protection in a domestic-abuse proceeding, Michele White challenges that part of the order that grants Matthew White domestic-abuse protection against her.  Because Michele White was not served with a domestic-abuse petition and did not agree to the issuance of a reciprocal order for protection, we reverse and remand for correction of the findings and the order.  We also remand for factual findings on Michele White’s motion for bad-faith attorneys’ fees.

F A C T S

            Michele White filed a petition for a domestic-abuse protection order against Matthew White.  The Whites, who had been married for ten years, separated in January 2003.  In the affidavit supporting the petition Michele White stated that in October 2002 Matthew White poked her in the chest and grabbed her wrists when she attempted to push his hands away.  The affidavit further stated that on April 15, 2003, Matthew White entered the White’s house, where Michele White and their two children were living, by breaking the glass on the side door.  After entering, Matthew White took his handgun from the house.

            On Michele White’s petition and affidavit, the Hennepin County District Court issued a combined order for a domestic-abuse hearing and an ex parte order for protection.  The order was served on Matthew White.  The day before the hearing, Matthew White filed a petition for a domestic-abuse protection order against Michele White.  Hennepin County District Court issued an ex parte reciprocal order for protection that set a domestic-abuse hearing at the same time as the hearing on Michele White’s petition.  The ex parte order that was issued on Matthew White’s petition, as well as the petition itself, was not served on Michele White or placed in the file before the hearing on her petition.

            At the hearing, the district court stated that the calendar indicated that this was a case in which the parties were seeking reciprocal orders for protection.  Michele White’s attorney stated that Michele White had not been served with any petition requesting a domestic-abuse order against her.  Matthew White’s attorney acknowledged that apparently neither his petition nor the order based on his petition had been served.  Neither Matthew White nor his attorney had a copy of Matthew White’s petition or an order relating to the petition.

            The district court stated that, because Matthew White’s petition and order had not been served, he did not have jurisdiction over that application for relief.  After the court outlined the possible options for how to proceed, the attorneys conferred with their clients.  Following the client conferences, Matthew White agreed to the issuance of a protection order against him that would not contain findings of domestic abuse.  Michele White did not agree to a reciprocal restraining order, and she did not waive service of Matthew White’s petition against her.

            On the same day, the district court issued a reciprocal order for protection that included a finding that “[t]he parties agree to the issuance of a Reciprocal Order for Protection.”  Michele White’s attorney asked Matthew White’s attorney to draft a corrected order that would omit the provisions restraining and excluding Michele White, indicating that he understood this was the procedure directed by the judge in a telephone conversation.  Matthew White’s attorney responded that she did not recall being directed to draft an amended order, but she would stipulate to the amendment if Michele White’s attorney would waive service of Matthew White’s domestic-abuse petition and agree to have it set for trial.  No amended order was issued.

            Michele White appeals from the reciprocal order for protection.  She also moves for bad-faith attorneys’ fees, based on the refusal by Matthew White and his attorney to stipulate that the protection order against her should be vacated.

D E C I S I O N

            The Minnesota Domestic Abuse Act provides for the issuance of protection orders in cases of domestic abuse.  Minn. Stat. § 518B.01 (2002).  Domestic abuse includes the infliction of physical harm or fear of imminent physical harm by one family or household member against another.  Id., subd. 2(a).  If the petition “alleges an immediate and present danger of domestic abuse, the court may grant an ex parte order for protection . . . .”  Id., subd. 7(a); Burkstrand v. Burkstrand, 632 N.W.2d 206, 209 (Minn. 2001).

            The petition and any order issued under the domestic abuse act must be served on the respondent personally or by published notice.  Minn. Stat. § 518B.01, subds. 5(f), 8(a).  The respondent has a right to a hearing on the petition.  Minn. Stat. § 518B.01, subds. 4(i), 7(c).  The right to a hearing on “domestic abuse allegations includes the right to present and cross-examine witnesses, to produce documents, and to have the case decided on the merits.”  El Nashaar v. El Nashaar, 529 N.W.2d 13, 14 (Minn. App. 1995).

            In Minnesota an action is commenced and a court acquires jurisdiction when service is made as prescribed by statute or rule.  Doerr v. Warner, 247 Minn. 98, 103, 76 N.W.2d 505, 511 (1956); Minn. R. Civ. P. 3.01.  The Hennepin County District Court judge understood that Michele White had not been served and that service or waiver of service was necessary before he could issue a domestic-abuse restraining order against Michele White.  The judge twice stated that foundational fact on the record.

            We have previously held that courts may not issue reciprocal restraining orders unless the relief against each respondent is properly sought and supported by the evidence.  See Mechtel v. Mechtel, 528 N.W.2d 916, 919-20 (Minn. App. 1995) (reversing mutual provisions of restraining order not sought or supported); FitzGerald v. FitzGerald, 406 N.W.2d 52, 53-54 (Minn. App 1987) (reversing mutual provisions of restraining order unsupported by evidence).

Nothing in the file provides a basis for the issuance of a domestic-abuse order against Michele White.  Although Matthew White did not file a respondent’s brief, nothing in the record establishes that he ever asserted that the district court had a valid basis for issuing an order against Michele White.  Whether an error occurred in the drafting of the order or a misunderstanding arose on whether Michele White had waived service of Matthew White’s petition and order is unclear.  But the record does not support the issuance of a reciprocal order.  We, therefore, reverse the protection order sought by Matthew White against Michele White and remand for the district court to correct the findings and issue an amended order that relates solely to Michele White’s petition and the evidence relevant to that petition.

            Michele White has requested bad faith attorneys’ fees for the refusal of Matthew White and his attorney to stipulate to vacating the reciprocal provisions of the protection order.  We agree that this appeal should not have been necessary to obtain an amended order.  We recognize that we are operating in an era of crowded court calendars and limited judicial resources, but an appeal is a costly and time-consuming remedy to correct what appears to be a universally acknowledged error.

The record indicates that Michele White’s attorney believed that the district court judge had directed Matthew White’s attorney to draft an amended order, but that Matthew White’s attorney did not recall that the judge directed her to draft the amendment.  The attorneys did not participate in the same telephone conversation, and we cannot determine the factual dispute about who was to prepare the amended order.  If Matthew White’s attorney was directed to provide an amended order and did not, that failure would have contributed substantially to the length and expense of these proceedings, and an award of fees would be appropriate.  If Matthew White and his attorney refused to stipulate to an amended order that would vacate the reciprocal provisions of the protection order, that action would also contribute to the length and expense of the proceedings.  Because a factual determination is necessary to resolve Michele White’s motion for attorneys’ fees, we remand that issue to the district court for findings and determination.

            Reversed and remanded.